Embedded Files
(Justice Byron White wrote the majority opinion for the Supreme Court)
In 1969, Paul Branzburg received a tip. Some dope dealers would be making hashish, and the dealers wanted Branzburg there to report on the process. Branzburg, a reporter for the Louisville Courier Journal, had made the underground dope trade his beat and over time had earned the trust of his sources. Branzburg’s long hair and easy going demeanor belied his background, a graduate of both Harvard School of Law and Columbia School of Journalism.
He struck a source deal with with the two hashish processors. In exchange for telling him about their illegal business—and the $5,000 they made every three weeks—Branzburg agreed not to use their real names in the article. Accompanying the story was a photograph that Branzburg took showing a pair of hands hovering over a table holding a substance the caption identified as hashish.
Days after the story ran, Branzburg was subpoenaed. Prosecutors wanted to know everything he knew about the hashish makers.
Branzburg refused to answer, citing the “Kentucky newsman’s privilege law,” a state “shield law” that exempted journalists from revealing confidential sources. Nevertheless, Branzburg was held in contempt for refusing to cooperate and set free until appeal.
Not long afterward, Branzburg was called in front of a grand jury to testify about a story he wrote exposing the rampant use of drugs among doctors, lawyers and lawmakers in the capital. This time, Branzburg moved to quash the subpoena.
“I had a reputation for keeping my mouth shut, but if I’d gone in there and [one of the drug dealers] had subsequently gotten busted— and someone was sure to, some were high school kids who were very careless—they would suspect I had named them. It was a real fear for me.”
But his appeal, in which he sought protection under the First Amendment, was rejected by the Kentucky Court of Appeals.
At the same time Branzburg was challenging the court decisions, two other reporters were facing similar threats. In July 1970 Paul Pappas was a newsman-photographer for the television station WTEV, working out of the Providence, Rhode Island bureau. He received a call from his colleague Truman Taylor in the main newsroom in New Bedford, Massachusetts. Racial violence and civil disorder had broken out in New Bedford. “They seem to be burning down New Bedford,” Taylor said, and ordered Pappas to cover the Black Panther news conference. (The Black Panthers were a revolutionary black nationalist and socialist organization formed in 1966.) When he arrived at the so-called Panther headquarters, which was little more than a seemingly abandoned, boarded-up storefront, he was told the group expected a police raid.
The reporter and the Panthers came to an agreement: If the raid went down, Pappas could report it; if not, he would keep mum. “Anything I saw or heard while inside the building would not be revealed to anyone.”
There was no raid and Pappas did not file a story.
Weeks later, Pappas was subpoenaed to appear before a grand jury and Pappas’ lawyer filed a motion to quash the subpoena like Branzburg had done. As a news reporter, the lawyer claimed, Pappas was “not required to divulge information learned by him in the confidence of his promise in gathering that information.” The motion was rejected.
New York Times reporter Earl Caldwell trailing Martin Luther King.
Meanwhile, Earl Caldwell was also reporting on the civil unrest of the Sixties. One of the few African-American journalists working at a major newspaper, Caldwell spent a year traveling the country as part of a New York Times team of reporters covering racial tensions, before moving to the San Francisco bureau in 1968. There, he continued writing about race and so-called black militants. He immersed himself with the Black Panthers and spent days in their company, holed up with them and recording their conversations. One afternoon, mere minutes after filing a piece on the Panthers, FBI agents appeared in his newsroom to question him about the story, which had only just been sent to his editors. After a few tense minutes, the agents left; eventually Caldwell was issued a summons to appear before a grand jury about his reportage of the Black Panther organization.
All four cases wound up at the Supreme Court. On June 29, 1972, by a narrow 5-4 margin, the United States Supreme Court delivered a stunning decision. Justice White penned the majority decision:
The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury’s investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.Branzburg v. Hayes was the first time the Supreme Court directly addressed a reporter’s right to protect his or her sources. Critics considered the ruling a crushing blow to free press.
The pivotal fifth dissenting opinion offered by Justice Powell, however, offered “wiggle room” regarding a journalist’s rights.
... no harassment of newsmen will be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered.” Powell continued: “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.After the Branzburg ruling, the Justice Department issued regulations for federal prosecutors which, to some degree, has mitigated the Court’s decision. The guidelines require that any demands on reporters “be as narrowly defined as possible,” that news organizations receive advanced notice of a subpoena, and that the Attorney General approve all subpoenas before they are issued to the press. In a 1973 interview with Rolling Stone magazine, Caldwell spoke of the effect the Court decision had on his ability to report unfettered. “When I first came out West to cover the Panthers, they used to grab me and accuse me of being a cop.” I would say ‘I’m a reporter!’ But they never would believe that. I had to go through hell to convince those guys that I was who I was and that’s all I was.... then it turned out that I hadn’t even known about me. I was a spy. The government really did have a right to everything I had. I was a spy.”
When the Supreme Court decision was issued, Branzburg fled Kentucky and his six months sentence for his original contempt charge. He got a job reporting for the Detroit Free Press but nevertheless faced extradition to Kentucky. “If I’d done dope reporting by talking to cops and reading academic studies, there would have been no problem,” Branzburg told Rolling Stone. “But you know, nine-tenths of the stuff you get that way is hogwash.”
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