Branzburg V. Hayes, 1972

The case: Paul Branzburg, a reporter from the Louisville Courier-Journal (a daily newspaper in Kentucky), witnessed criminal activities and wrote an article about his observations. Branzburg was subpoenaed by the Jefferson County grand jury and he refused to give the names of his sources. The trial court rejected the claim that Branzburg was protected by reporter‘ s privilege; Branzburg appealed and the case made its way to the U.S. Supreme Court.

Branzburg also observed drug use in Frankfort, Kentucky, and wrote an article about his observations. Again, Branzburg was subpoenaed, but he refused to release the names of his sources. Branzburg argued that his reputation would be damaged.

At the same time, Paul Pappas, a television newsman in Massachusetts, received permission to enter a barricaded area to cover a story about a Black Panther news conference. Pappas expected a police raid to occur, but when that did not happen, he did not write a story. Months later, Pappas was summoned to court. He refused to tell the court anything about what happened inside the building when he was there, claiming that the First Amendment gave him a privilege to protect confidential sources. (Branzburg v. Hayes )

Also at the same time, Earl Caldwell, a New York Times reporter, covered the Black Panther party (a black militant group). He soon received a subpoena to bring his notes and tape recordings of interviews with Black Panther members. Caldwell refused, and soon he was summoned to testify before a grand jury. Caldwell argued that his appearance in court would ruin his connection to the Black Panthers and that there was no compelling government interest in his court appearance. Caldwell was found in contempt of the jury, but an appeals court reversed the contempt order.

All three reporters asserted that: “ the reporter should not be forced either to appear or to testify before a grand jury or at trial until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to a crime the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned by the disclosure.” (Branzburg v. Hayes)

Key point: If reporters respond to subpoenas and name their sources, their reputations will be ruined and sources may not trust them anymore.

In the majority opinion in Branzburg v. Hayes, Justice White wrote:
“ We cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it. Insofar as any reporter in these cases undertook not to reveal or testify about the crime he witnessed, his claim of privilege under the First Amendment presents no substantial question. The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not. ” [408 U.S. 665, 693]  

In other words, reporters are not protected when they witness a crime. White also said that the media does not have a right to information that the public cannot access. The court rejected the qualified privilege that Branzburg, Pappas, and Caldwell suggested. The court did not want to be required to define journalists nor to require judges to decide who has the privilege.

In a dissenting opinion, Justice Douglas said that, in Caldwell v. Cowles Media Co., Caldwell was immune from testifying before a grand jury because he was not involved in the crime. In another dissenting opinion, Justice Stewart argued that the right to publish means the right to gather news and disseminate news. He adds that the right to gather news implies a right “ a confidential relationship between a reporter and his source.” (Branzburg v. Hayes, Justice Stewart)

“ When neither the reporter nor his source can rely on the shield of confidentiality against unrestrained use of the grand jury‘s subpoena power, valuable information will not be published and the public dialogue will inevitably be impoverished.” (Branzburg v. Hayes, Justice Stewart)

Stewart said the government should demonstrate
(1) that the reporter has information relevant to a case, (2) that the information cannot be obtained by other methods or sources, and (3) that there is a compelling and overriding interest in the information requested.