Branzburg v. Hayes

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 concerning the 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 a second, 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 criminal activity 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.