Branzburg v. Hayes

Appellant
Paul M. Branzburg
Appellee
John P. Hayes, Judge
Appellant's Claim
That the First Amendment's guarantee of freedom of the press provides the press with a privilege protecting the confidentiality of media sources.
Chief Lawyer for Appellant
Edgar A. Zingman
Chief Lawyer for Appellee
Edwin A. Schroering, Jr.
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, Byron R. White (writing for the Court)
Justices Dissenting
William J. Brennan, Jr., William O. Douglas, Thurgood Marshall, Potter Stewart
Place
Washington, D.C.
Date of Decision
29 June 1972
Decision
The Supreme Court ruled against a special First Amendment privilege that would allow the press to refuse to answer grand jury questions concerning news sources.
Significance
The decision in Branzburg v. Hayes gave rise to considerable controversy and the implementation of several state laws shielding the press from grand jury inquiry.
Paul Branzburg, a reporter with the Louisville Courier-Journal, was subpoenaed to appear before a grand jury to testify about his story concerningthe manufacture of hashish. He appeared, but he refused to answer questions about the individuals who had supplied him with information for his story. Branzburg's sources agreed to talk to the reporter only with the understanding that Branzburg would not reveal their identities. Citing a state reporters' privilege law and the First Amendment, Branzburg refused to obey an order issued by Kentucky trial court judge J. Miles Pound (the respondent in this case,John J. Hayes, was Pound's successor) that required the reporter to answer the grand jury's questions. When the Kentucky Court of Appeals denied Branzburg's petition to have the judge's order suppressed, Branzburg applied to the U.S. Supreme Court for a review of this decision.
The Supreme Court agreed to consider Branzburg's case (which also concerned asecond, similar order to reveal confidential sources) with those of television journalist Paul Pappas, who declined to testify before a Massachusetts grand jury about his piece on the radical Black Panthers group, and Earl Caldwell, a New York Times reporter who refused to appear before a federal grand jury in California to testify about his coverage of the Black Panthers. The Court divided sharply on the issue of whether or not the First Amendment affords the press a special testimonial privilege. Writing for the five members who voted against such an interpretation of the First Amendment, Justice White asserted that the press's responsibility to provide evidence of criminalactivity to grand juries is no different from that of any other citizen. Justice Douglas, writing in dissent, argued that a newsman has an unqualified right not to appear before a grand jury. Justice Stewart, writing for himself and Justices Brennan and Marshall, assumed a position between these two extremes.
Dissent Proposes Qualified Protection for Confidential News Sources
Justice Stewart's dissenting opinion stressed the importance of confidentiality to the news-gathering process:

[W]e have held that the right topublish is central to the First Amendment and basic to the existence of constitutional democracy . . . A corollary of the right to publish must be the right to gather news. The full flow of information to the public protected by the free-press guarantee would be severely curtailed if no protection whateverwere afforded to the process by which news is assembled and disseminated . .. The right to gather news implies, in turn, a right to a confidential relationship between a reporter and his source.

Justice Stewart went on to say that the only way to protect the vital conceptof confidentiality is to put limits on the grand jury's subpoena power. He proposed that in order to compel a journalist to appear before a grand jury the government must show: (1) probable cause to believe the journalist has information clearly relevant to a probable crime; (2) that this information cannot be obtained through some other means that is less destructive to First Amendment rights; and (3) a compelling and overriding interest in the information.
Branzburg sparked considerable public debate, and a number of states--taking up Justice White's suggestion that only legislatures could establish atestimonial privilege for reporters--implemented press shield laws. The federal government has never followed suit, however, and nearly twenty years after Branzburg, in Cohen v. Cowles Media Co. (1991), the Supreme Court once again denied a claim of a special press privilege against compelledtestimony grounded in the First Amendment.
Related Cases

• Cohen v. Cowles Media Co., 501 U.S. 663 (1991).

Pro and Con: Naming Media Sources
The issue of journalists' and other media personnels' privilege in not namingsources of information has been tested in cases at the state level and in the U.S. Supreme Court.
The High Court asserted that journalists must appear and testify in responseto subpoenas issued by grand juries. In cases of criminal matters, journalists have no greater privilege to withhold critical evidence than any other citizen. If they refuse to cooperate, sanctions or charges of contempt may be imposed. The "public interest" to deal with criminal matters takes priority overprivileges protecting journalists' sources.
Journalists have protection against being forced to reveal sources of information under Shield Laws in some states. The media has also used the First Amendment's right to free press in support of withholding identities of sources.Congress also passed a law called the Federal Rule of Evidence 501, that qualifies the circumstances under which a reporter may avoid naming sources.
Sources
Cornell. http://supct.law.cornell.edu/supct/
West's Encyclopedia of American Law. Volume 2. Minneapolis, MN: West Publishing, 1998.