Branzburg v. Hayes

Justice Stewart's dissenting opinion stressed the importance of confidentiality to the news-gathering process:

[W]e have held that the right to publish 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 whatever were 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 concept of 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 a testimonial 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 compelled testimony grounded in the First Amendment.