Branzburg v. Hayes
Decided on June 29, 1972; 408 US 665


Three reporters challenge subpoenas requiring them to testify about
illegal actions they witnessed while investigating


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed:  First Amendment (Press, Speech, Association) 

B. Legal Question Presented: 

Does the First Amendment protect news reporters who refuse to testify before state or federal grand juries and refuse to reveal confidential sources and information?

II. CASE SUMMARY:

A. Background:

Subpoenas were issued by a federal grand jury to respondent Earl Caldwell, a reporter for the New York Times assigned to cover the Black Panther Party and other black militant groups.  He was ordered to testify before a grand jury and to bring with him notes and tape recordings of interviews given to him for publication by Black Panther Party officers and spokesmen concerning the aims, purposes, and activities of the organization. He objected to the scope of the subpoena and to testifying, and he filed a motion to quash (annul) them, citing the First Amendment and freedom of the press.

The District Court denied the motion to quash, but accepted Caldwell's First Amendment arguments. However, another subpoena was issued when a new grand jury was elected, and Caldwell was ordered to testify before the new grand jury.  He was held in contempt of the court when he failed to appear. Caldwell appealed the contempt order and the Court of Appeals reversed.

Similarly, Branzburg, a reporter, after observing and interviewing a number of people synthesizing and using drugs in a two-county area, wrote a story for a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. Branzburg refused to testify and potentially disclose the identities of his confidential sources. The trial Judge denied his motion to quash the subpoenas and he was directed to testify before a grand jury.  Bransburg appealed and the Court of Appeals affirmed the lower court's judgment, requiring him to testify.

Similarly, another reporter (Pappas) covering activity within the Black Panther organization, was called to testify before grand juries and reveal trusted information. Like Caldwell and Branzburg, Pappas also refused to appear before the state grand juries. Pappas appealed to the Massachusetts Supreme Judicial Court, which ruled against his plea to not testify.

Caldwell, Branzburg and Pappas appealed to the US Supreme Court; certiorari was granted and the three cases were consolidated.

B. Counsel of Record:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Edgar A. Zingman argued the cause for petitioner in Branzburg v. MeigsWith him on the briefs was Robert C. Ewald.

E.
Barrett Prettyman, Jr., argued the cause for petitioner in In re Pappas. With him on the briefs was William H. Carey.

Anthony G. Amsterdam argued the cause for respondent in US v. Caldwell.
With him on the brief were Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, and William Bennett Turner.
Edwin A. Schroering, Jr., argued the cause for respondents in Branzburg v. Meigs. With him on the brief was W. C. Fisher, Jr.

Joseph J.
Hurley, First Assistant Attorney General, argued the cause for respondent, Commonwealth of Massachusetts, in In re Pappas.  With him on the brief were Robert H. Quinn, Attorney General, Walter H. Mayo III, Assistant Attorney General, and Lawrence T. Bench, Deputy Assistant Attorney General.

Solicitor General Griswold argued the cause for the United States in US v. Caldwell. With him on the briefs were Assistant Attorney General Wilson, Assistant Attorney General Petersen, William Bradford Reynolds, Beatrice Rosenberg and Sidney M. Glazer.
C. The Arguments:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Melvin L. Wulf, Paul N. Halvonik, A. L. Wirin, Fred Okrand, and Lawrence R. Sperber filed a brief for the American Civil Liberties Union, urging affirmance in United States v. Caldwell.

Additional briefs of amici curiae urging affirmance in US v. Caldwell were filed by Irwin Karp for the Authors League of America, Inc.; by W. Theodore Pierson and J. Laurent Scharff for the Radio Television News Directors Association; and by Earle K. Moore and Samuel Rabinove for the Office of Communication of the United Church of Christ et al.

And, briefs of amici curiae urging affirmance in US v. Caldwell and reversal in Branzburg v. Meigs and In re Pappas were filed by Alexander M. Bickel, Lawrence J. McKay, Floyd Abrams, Daniel Sheehan, Corydon B. Dunham, Clarence J. Fried, Alan J. Hruska, Robert S. Rifkind, Anthony A. Dean, and Edward C. Wallace for New York Times Co., Inc., et al.; by Don H. Reuben, Lawrence Gunnels, Steven L. Bashwiner; and Thomas F. Ging for Chicago Tribune Co.; by Arthur B. Hanson for the American Newspaper Publishers Association; and by Irving Leuchter for the American Newspaper Guild, AFL-CIO, CLC.

Other briefs of amici curiae in US v. Caldwell were filed by Leo P. Larkin, Jr., Stanley Godofsky, and John J. Sheehy for Washington Post Co. et al.; by Richard M. Schmidt, Jr., for the American Society of Newspaper Editors et al.; by Roger A. Clark for the National Press Photographers Association, Inc.

Also, William Bradford Reynolds argued the cause for the United States as amicus curiae urging affirmance in Branzburg v. Meigs and US v. Caldwell. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, and Beatrice Rosenberg.
John T. Corrigan filed a brief for the National District Attorneys Association urging reversal in US v. Caldwell and affirmance in In re Pappas.
IV. THE SUPREME COURT'S DECISION:

"We turn, therefore, to the disposition of the cases before us. From what we have said, it necessarily follows that the decision in United States v. Caldwell must be reversed. If there is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good-faith grand jury investigation, then it is a fortiori true that there is no privilege to refuse to appear before such a grand jury until the Government demonstrates some 'compelling need' for a newsman's testimony...

The decisions in Branzburg v. Hayes and Branzburg v. Meigs, must be affirmed. Here, petitioner refused to answer questions that directly related to criminal conduct that he had observed and written about. The Kentucky Court of Appeals noted that marijuana is defined as a narcotic drug by statute, and that unlicensed possession or compounding of it is a felony punishable by both fine and imprisonment. It held that petitioner 'saw the commission of the statutory felonies of unlawful possession of marijuana and the unlawful conversion of it into hashish.' Petitioner may be presumed to have observed similar violations of the state narcotics laws during the research he did for the story that forms the basis of the subpoena in Branzburg v. Meigs. In both cases, if what petitioner wrote was true, he had direct information to provide the grand jury concerning the commission of serious crimes.

The only question presented at the present time in In re Pappas, is whether petitioner Pappas must appear before the grand jury to testify pursuant to subpoena. The Massachusetts Supreme Judicial Court characterized the record in this case as 'meager,' and it is not clear what petitioner will be asked by the grand jury. It is not even clear that he will be asked to divulge information received in confidence. We affirm the decision of the Massachusetts Supreme Judicial Court and hold that petitioner must appear before the grand jury to answer the questions put to him, subject, of course, to the supervision of the presiding judge as to 'the propriety, purposes, and scope of the grand jury inquiry and the pertinence of the probable testimony.'"

Justice Vote: 4 Pro vs. 5 Con

  • White, B. Con (Wrote majority opinion)
  • Blackmun, H. Con (Joined majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Burger, W. Con (Joined majority opinion)
  • Powell, L. Con (Wrote concurring opinion)
  • Douglas, W. Pro (Wrote dissenting opinion)
  • Stewart, J. Pro (Wrote dissenting opinion)
  • Brennan, W. Pro (Joined Stewart's dissent)
  • Marshall, T.  Pro (Joined Stewart's dissent)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU filed as amicus curiae urging affirmance (specifically for Caldwell), the US Supreme Court reversed the Court of Appeal's judgment regarding Caldwell and affirmed judgments regarding Branzburg and Pappas, in a 5-4 vote giving ACLU an apparent loss.