Branzburg v. Hayes
Supreme Court of the United States
Argued February 23, 1972 Decided June 29, 1972
Full case name: Branzburg v. John P. Hayes, et al., Judges Citations: 408 U.S. 665; 92 S. Ct. 2646; 33 L. Ed. 2d 626; 1972 U.S. LEXIS 132; 24 Rad. Reg. 2d (P & F) 2125; 1 Media L. Rep. 2617 Prior history: Reporter's privilege denied, KY-Jefferson County trial court of Judge Pound; appeals petition denied, 461 S. W. 2d 345 (1970); similar proceedings in trial court in Franklin County and on appeal; writ of certiorari granted, 402 U.S. 942 (1971)
Holding
The First Amendment's protection of press freedom does not give a reportorial privilege in court.
Court membership
Chief Justice: Warren E. Burger Associate Justices: William O. Douglas, William J. Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Franklin Powell, Jr., William Rehnquist
Case opinions
Majority by: White Joined by: Burger, Blackmun, Powell, Rehnquist Concurrence by: Powell Dissent by: Douglas Dissent by: Stewart Joined by: Brennan, Marshall
Laws applied
U.S. Const. amend. I; Ky. Rev. Stat. 421.100 (1962)

Branzburg v. Hayes, 408 U.S. 665 (1972)^[1], 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 case was decided on a vote of 5-4. It remains the only time the Supreme Court has considered the use of reportorial privilege. Image File history File links Seal_of_the_United_States_Supreme_Court. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      The Supreme Court of the United States (sometimes colloquially referred to by the... Warren Earl Burger (September 17, 1907 – June 25, 1995) was Chief Justice of the United States from 1969 to 1986. ... William Orville Douglas (October 16, 1898 – January 19, 1980) was a United States Supreme Court Associate Justice. ... William J. Brennan, official portrait, 1976. ... Potter Stewart (January 23, 1915 – December 7, 1985) was an Associate Justice of the United States Supreme Court. ... Byron Raymond White (June 8, 1916 – April 15, 2002) won fame both as a football running back and as an associate justice of the Supreme Court of the United States. ... Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American jurist and the first African American to serve on the Supreme Court of the United States. ... Justice Harry Blackmun Harry Andrew Blackmun (November 12, 1908 – March 4, 1999) was an Associate Justice of the Supreme Court of the United States from 1970 to 1994. ... Lewis Franklin Powell, Jr. ... William Hubbs Rehnquist (October 1, 1924 – September 3, 2005) was an American lawyer, jurist, and a political figure who served as an Associate Justice on the Supreme Court of the United States and later as the Chief Justice of the United States. ... “First Amendment” redirects here. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case citation is the system used in common law countries such as the United States, England and Wales, Ireland, Canada, New Zealand, Hong Kong, Australia and India to uniquely identify the location of past court... Year 1972 (MCMLXXII) was a leap year starting on Saturday (link will display full calendar) of the Gregorian calendar. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      The Supreme Court of the United States (sometimes colloquially referred to by the... The first ten Amendments to the U.S. Constitution make up the Bill of Rights. ... In the American common law legal system, a grand jury is a type of jury which determines if there is enough evidence for a trial. ... is the 54th day of the year in the Gregorian calendar. ... Year 1972 (MCMLXXII) was a leap year starting on Saturday (link will display full calendar) of the Gregorian calendar. ... is the 180th day of the year (181st in leap years) in the Gregorian calendar. ... Reporters privilege in the United States, is the qualified (limited) First Amendment right many jurisdictions by statutory law or judicial decision have given to journalists in protecting their confidential sources from discovery. ...

Facts

The case involved three reporters, all of whom had been called to testify before grand juries. Paul Branzburg of The (Louisville) Courier-Journal, in the course of his reporting duties, had witnessed people manufacturing and using hashish. Earl Caldwell, a reporter for The New York Times, had conducted extensive interviews with the leaders of The Black Panthers. Paul Pappas, a Massachusetts television reporter, had also reported on The Black Panthers, spending several hours in their headquarters. Categories: Stub | Newspapers in Kentucky | Louisville, Kentucky ... Confiscated hashish. ... Earl Caldwell (born c. ... The New York Times is a daily newspaper published in New York City and distributed internationally. ... The Black Panther Party (originally called the Black Panther Party for Self-Defense) was a revolutionary Black nationalist organization in the United States that formed in the late 1960s and grew to national prominence before falling apart due to factional rivalries stirred up by the Federal Bureau of Investigation. ... This article is about the U.S. State. ...

All three reporters were called to testify before grand juries about illegal actions they might have witnessed. All three refused, citing privilege under the Press Clause, and were held in contempt. A grand jury is a type of common law jury; responsible for investigating alleged crimes, examining evidence, and issuing indictments. ... For other uses, see Contempt (disambiguation). ...

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)^[2]

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. The United States Court of Appeals for the District of Columbia Circuit, known informally as the D.C. Circuit, is the federal appellate court for the U.S. district court in Washington, D.C. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are...

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 to subpoena recordings of a key witness possessed by a group of journalists. Posner emphasized that Powell had sided with the majority and that courts asserting a reporters privilege in regard to nonconfidential sources "may be skating on thin ice." Richard Allen Posner (born January 11, 1939 in New York City) is currently a judge on the United States Court of Appeals for the Seventh Circuit. ...

In July 2004, Branzburg was cited as precedent by United States District Court Chief Justice 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: Map of the boundaries of the United States Courts of Appeals and United States District Courts The United States district courts are the general trial courts of the United States federal court system. ... Chief Judge Thomas F. Hogan Chief Judge Thomas F. Hogan was appointed to the United States District Court for the District of Columbia in August 1982 by Republican President Ronald Reagan and became Chief Judge on June 19, 2001. ... This article is about the television network. ... Timothy John Russert, Jr. ... “TIME” redirects here. ... Matthew Cooper is a reporter with TIME magazine, 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. ... “CIA” redirects here. ... Valerie Elise Plame Wilson (born Valerie Elise Plame 19 April 1963, in Anchorage, Alaska), known as Valerie Plame, Valerie E. Wilson, and Valerie Plame Wilson, is a former United States CIA officer who worked as a classified covert intelligence agent for over twenty years and the wife of former Ambassador...

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.[2] The Times purports that Justice Powell wrote the following:

I will make clear in an opinion - unless the court's opinnion is clear - that there is a privilege analagous 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? [3]

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' (as it was called in prefeminist America) 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 Abrams^[3]

Floyd Abrams is a famous First Amendment lawyer. ...

See also

• List of United States Supreme Court cases, volume 408
• Shield law

This is a list of all the United States Supreme Court cases from volume 408 of the United States Reports: Laird v. ... Shield laws are laws to protect a reporters right to keep their source confidential. ...

References

1. ^ 408 U.S. 665 (Full text of the opinion courtesy of Findlaw.com)
2. ^ [1]
3. ^ Floyd Abrams, Speaking Freely, published by Viking Press (2005), Page 3.