Branzburg v. Hayes
Encyclopedia
Branzburg v. Hayes, 408 U.S. 665 (1972), was a landmark United States Supreme Court
decision invalidating the use of the First Amendment
as a defense for reporters summoned to testify before a grand jury
. The case was argued February 23, 1972 and decided June 29 of the same year. The reporter lost his case by a vote of 5-4. Nonetheless this case is cited for the rule that in federal courts, a reporter may not avoid testifying in a criminal grand jury. It remains the only time the Supreme Court has considered the use of Reporters' Privilege
.
for both of the articles. He was ordered to name his sources.
Earl Caldwell
, a reporter for The New York Times
, had conducted extensive interviews with the leaders of The Black Panthers, and Paul Pappas, a Massachusetts
television reporter,who had also reported on The Black Panthers, spending several hours in their headquarters were similarly subpoenaed around the same time as Branzburg
All three reporters were called to testify before separate grand juries about illegal actions they might have witnessed. They refused, citing privilege under the Press Clause, and were held in contempt
.
Justice White did not overlook the importance of a free press, however, and established a test, citing Gibson v. Florida Legislative Investigation Comm., for deciding whether a reporter can be compelled to testify before a grand jury. For such a subpoena to have merit, the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."
Complicating matters was Justice Lewis F. Powell's concurrence. While he sided with the majority, Justice Powell emphasized the "limited nature" of the decision when he stated:
A few days after oral argument, and before writing his concurrence, Justice Powell prepared handwritten notes of the court’s private conference to decide the disposition of the appeal. He stated in those notes:
In Zerilli v. Smith, 656 F.2d 705 (1981) the Court of Appeals for the D.C. Circuit found that the reporter's privilege did exist and its application depended on two factors: (1) that the information sought was crucial to a litigant's case and (2) that the information could not be acquired from any other source.
However, in 2003 in McKevitt v. Pallasch, 339 F.3d 530 (2003), Judge Posner reaffirmed the majority's opinion in Branzburg, in an opinion concerning a refusal to stay an order in a terrorism case in Ireland to subpoena recordings of a key witness possessed by a group of journalists. Posner uses the case-by-case balancing test envisioned by Justice Powell, writing:
In July 2004, Branzburg was cited as precedent by United States District Court
Chief Judge Thomas Hogan
in a memorandum opinion denying a motion to quash two grand jury subpoenas issued to reporters. NBC
Washington Bureau Chief Tim Russert
and Time
magazine reporter Matthew Cooper
challenged the subpoenas issued in connection with the leak of the identity of former CIA
operative Valerie Plame
, citing their First Amendment rights as reason not to reveal their confidential sources. In the opinion, Hogan wrote:
Civil cases, as opposed to criminal cases, have been held not to come under the Branzburg test. Carey v. Hume, 160 U.S. App. D.C. 365, 492 F.2d 631, 636 (D.C.Cir.), cert. dismissed, 417 U.S. 938, 94 S. Ct. 2654, 41 L. Ed. 2d 661 (1974).
The New York Times recently published Justice Powell's notes of the court's private conference on a form that looks like a scorecard.http://www.nytimes.com/2007/10/07/weekinreview/07liptak.html?ref=weekinreview The Times purports that Justice Powell wrote the following:
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decision invalidating the use of the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
as a defense for reporters summoned to testify before a grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
. The case was argued February 23, 1972 and decided June 29 of the same year. The reporter lost his case by a vote of 5-4. Nonetheless this case is cited for the rule that in federal courts, a reporter may not avoid testifying in a criminal grand jury. It remains the only time the Supreme Court has considered the use of Reporters' Privilege
Reporters' Privilege
Reporters' privilege in the United States, is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources"...
.
Facts
Paul Branzburg of The (Louisville) Courier-Journal, in the course of his reporting duties, had witnessed people manufacturing and using hashish. He wrote two articles concerning drug use in Kentucky. The first featured unidentified hands holding hashish, while the second included marijuana users as sources. These sources requested not to be identified. Both of the articles were brought to attention of law-enforcement. Branzburg was subpoenaed before a grand juryGrand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
for both of the articles. He was ordered to name his sources.
Earl Caldwell
Earl Caldwell
Earl Welton Caldwell was a pitcher in Major League Baseball who played for the Philadelphia Phillies , St. Louis Browns , Chicago White Sox and Boston Red Sox . A native of Sparks, Texas, Caldwell batted and threw right-handed...
, a reporter for The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
, had conducted extensive interviews with the leaders of The Black Panthers, and Paul Pappas, a Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
television reporter,who had also reported on The Black Panthers, spending several hours in their headquarters were similarly subpoenaed around the same time as Branzburg
All three reporters were called to testify before separate grand juries about illegal actions they might have witnessed. They refused, citing privilege under the Press Clause, and were held in contempt
Contempt
Contempt is an intensely negative emotion regarding a person or group of people as inferior, base, or worthless—it is similar to scorn. It is also used when people are being sarcastic. Contempt is also defined as the state of being despised or dishonored; disgrace, and an open disrespect or willful...
.
Decision
In a fiercely split decision, the Court ruled 5-4 against the existence of reportorial privilege in the Press Clause of the First Amendment. Writing for the majority, Justice Byron White declared that the petitioners were asking the Court "to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do." Justice White acknowledged the argument that refusing to recognize such a privilege would undermine the ability of the press to gather news, but wrote that "from the beginning of the country the press has operated without constitutional protection for press informants, and the press has flourished."Justice White did not overlook the importance of a free press, however, and established a test, citing Gibson v. Florida Legislative Investigation Comm., for deciding whether a reporter can be compelled to testify before a grand jury. For such a subpoena to have merit, the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."
Complicating matters was Justice Lewis F. Powell's concurrence. While he sided with the majority, Justice Powell emphasized the "limited nature" of the decision when he stated:
The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.
A few days after oral argument, and before writing his concurrence, Justice Powell prepared handwritten notes of the court’s private conference to decide the disposition of the appeal. He stated in those notes:
I will make clear in an opinion . . . that there is a privilege analogous to an evidentiary one, which courts should recognize and apply on case by case to protect confidential information. . . . My vote turned on my conclusion . . . that we should not establish a constitutional privilege. (emphasis in original notes)
Subsequent history
Powell's opinion has been interpreted by several lower courts as an indication that reportorial privilege does indeed exist, but was simply not warranted in the specific case of Branzburg.In Zerilli v. Smith, 656 F.2d 705 (1981) the Court of Appeals for the D.C. Circuit found that the reporter's privilege did exist and its application depended on two factors: (1) that the information sought was crucial to a litigant's case and (2) that the information could not be acquired from any other source.
However, in 2003 in McKevitt v. Pallasch, 339 F.3d 530 (2003), Judge Posner reaffirmed the majority's opinion in Branzburg, in an opinion concerning a refusal to stay an order in a terrorism case in Ireland to subpoena recordings of a key witness possessed by a group of journalists. Posner uses the case-by-case balancing test envisioned by Justice Powell, writing:
The federal interest in cooperating in the criminal proceedings of friendly foreign nations is obvious; and it is likewise obvious that newsgathering and reporting activities of the press are inhibited when a reporter cannot assure a confidential source of confidentiality. Yet that was Branzburg and it is evident from the result in that case that the interest of the press in maintaining the confidentiality of sources is not absolute. There is no conceivable interest in confidentiality in the present case.
In July 2004, Branzburg was cited as precedent by United States District Court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
Chief Judge Thomas Hogan
Thomas Hogan
Thomas Francis Hogan , a United States federal judge, is serving as Director of the Administrative Office of the United States Courts...
in a memorandum opinion denying a motion to quash two grand jury subpoenas issued to reporters. NBC
NBC
The National Broadcasting Company is an American commercial broadcasting television network and former radio network headquartered in the GE Building in New York City's Rockefeller Center with additional major offices near Los Angeles and in Chicago...
Washington Bureau Chief Tim Russert
Tim Russert
Timothy John "Tim" Russert was an American television journalist and lawyer who appeared for more than 16 years as the longest-serving moderator of NBC's Meet the Press. He was a senior vice president at NBC News, Washington bureau chief and also hosted the eponymous CNBC/MSNBC weekend interview...
and Time
Time (magazine)
Time is an American news magazine. A European edition is published from London. Time Europe covers the Middle East, Africa and, since 2003, Latin America. An Asian edition is based in Hong Kong...
magazine reporter Matthew Cooper
Matthew Cooper (American journalist)
Matthew Cooper is a former reporter for Time who, along with New York Times reporter Judith Miller was held in contempt of court and threatened with imprisonment for refusing to testify before the Grand Jury regarding the Valerie Plame CIA leak investigation. He currently works as the managing...
challenged the subpoenas issued in connection with the leak of the identity of former CIA
Central Intelligence Agency
The Central Intelligence Agency is a civilian intelligence agency of the United States government. It is an executive agency and reports directly to the Director of National Intelligence, responsible for providing national security intelligence assessment to senior United States policymakers...
operative Valerie Plame
Valerie Plame
Valerie Elise Plame Wilson , known as Valerie Plame, Valerie E. Wilson, and Valerie Plame Wilson, is a former United States CIA Operations Officer and the author of a memoir detailing her career and the events leading up to her resignation from the CIA.-Early life :Valerie Elise Plame was born on...
, citing their First Amendment rights as reason not to reveal their confidential sources. In the opinion, Hogan wrote:
Because this Court holds that the U.S. Supreme Court unequivocally rejected any reporter’s privilege rooted in the First Amendment or common law in the context of a grand jury acting in good faith, this Court denies the motions to quash.
Civil cases, as opposed to criminal cases, have been held not to come under the Branzburg test. Carey v. Hume, 160 U.S. App. D.C. 365, 492 F.2d 631, 636 (D.C.Cir.), cert. dismissed, 417 U.S. 938, 94 S. Ct. 2654, 41 L. Ed. 2d 661 (1974).
The New York Times recently published Justice Powell's notes of the court's private conference on a form that looks like a scorecard.http://www.nytimes.com/2007/10/07/weekinreview/07liptak.html?ref=weekinreview The Times purports that Justice Powell wrote the following:
I will make clear in an opinion - unless the court's opinion is clear - that there is a privilege analogous to an evidentiary one, which courts should recognize and apply on case by case to protect confidential information. My vote turned on my conclusion - after hearing arguments of counsel and re-reading principal briefs - that we should not establish a constitutional privilege. If we did this, the problems that would flow from it would be difficult to foresee: e.g., applying a privilege of const. dimensions - to grand jurys, petite juries, congressional committees, etc... And who are "newsmen" - how to define? http://graphics8.nytimes.com/images/2007/10/07/weekinreview/1007LIPTAK.1100.1065.jpg
Quotes about the case
- "[Persuading the Court to grant First Amendment protection to journalists regarding their sources] was obviously going to be a hard sell. Notwithstanding the strong policy arguments in favor of establishing this privilege and the serious harm that would be caused by its absence, no such protection had ever been held to exist. Not only was the concept that the judicial system was entitled to 'every man's evidence' itself deeply rooted in the Constitution, but merely determining the scope of the privilege (when would it apply?) and identifying who would receive it (only regularly employed journalists? freelancers? anyone?) were difficult matters at best." Floyd AbramsFloyd AbramsFloyd Abrams is an American attorney at Cahill Gordon & Reindel. He is an expert on constitutional law, and many arguments in the briefs he has written before the United States Supreme Court have been adopted as United States Constitutional interpretative law as it relates to the First Amendment...
See also
- List of United States Supreme Court cases, volume 408
- Shield lawShield lawA shield law or reporters' privilege is legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process.-Definition:...
- In the film Nothing But the TruthNothing But the Truth (2008 film)Nothing but the Truth is a 2008 American drama film written and directed by Rod Lurie. According to comments made by Lurie in The Truth Hurts, a bonus feature on the DVD release, his inspiration for the screenplay was the case of journalist Judith Miller, who in July 2005 was jailed for contempt of...
, Branzburg v. Hayes case is quoted and discussed.