Branzburg v. Hayes
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''Branzburg v. Hayes'', 408 U.S. 665 (1972), was a
landmark decision Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly u ...
of the
US Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point of ...
invalidating the use of the
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...
as a defense for reporters summoned to testify before a
grand jury A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a pe ...
. The case was argued February 23, 1972, and decided June 29 of the same year. The reporters lost their case by a vote of 5–4. This case is cited for the rule that in federal courts, a reporter may not generally avoid testifying in a criminal grand jury, and is one of a limited number of cases in which the U.S. Supreme Court has considered the use of ''
reporters' privilege Reporter's privilege in the United States (also journalist's privilege, newsman's privilege, or press privilege), is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or s ...
''.


Facts

Paul Branzburg of The (
Louisville Louisville ( , , ) is the largest city in the Commonwealth of Kentucky and the 28th most-populous city in the United States. Louisville is the historical seat and, since 2003, the nominal seat of Jefferson County, on the Indiana border. ...
) ''
Courier-Journal ''The Courier-Journal'', also known as the ''Louisville Courier Journal'' (and informally ''The C-J'' or ''The Courier''), is the highest circulation newspaper in Kentucky. It is owned by Gannett and billed as "Part of the ''USA Today'' Ne ...
'', in the course of his reporting duties, witnessed people manufacturing and using
hashish Hashish ( ar, حشيش, ()), also known as hash, "dry herb, hay" is a drug made by compressing and processing parts of the cannabis plant, typically focusing on flowering buds (female flowers) containing the most trichomes. European Monitorin ...
. He wrote two articles concerning drug use in Kentucky. The first featured unidentified hands holding hashish, while the second included
marijuana Cannabis, also known as marijuana among other names, is a psychoactive drug from the cannabis plant. Native to Central or South Asia, the cannabis plant has been used as a drug for both recreational and entheogenic purposes and in various tra ...
users as sources. These sources requested not to be identified. Both of the articles were brought to attention of law-enforcement personnel. Branzburg was subpoenaed before a
grand jury A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a pe ...
for both of the articles. He was ordered to name his sources.
Earl Caldwell Earl Welton "Teach" Caldwell (April 9, 1905 – September 15, 1981) was an American professional baseball pitcher whose career saw him win more than 330 games over 29 seasons, 1926 to 1954, including 33 victories in Major League Baseball (MLB) a ...
, a reporter for ''
The New York Times ''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...
'', conducted extensive interviews with the leaders of
The Black Panthers The Black Panther Party (BPP), originally the Black Panther Party for Self-Defense, was a Marxist-Leninist and black power political organization founded by college students Bobby Seale and Huey P. Newton in October 1966 in Oakland, Califo ...
, and Paul Pappas, a
Massachusetts Massachusetts (Massachusett language, Massachusett: ''Muhsachuweesut assachusett writing systems, məhswatʃəwiːsət'' English: , ), officially the Commonwealth of Massachusetts, is the most populous U.S. state, state in the New England ...
television reporter, who also reported on The Black Panthers, spending several hours in their headquarters were similarly
subpoena A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of ...
ed around the same time as was Paul Branzburg. All three reporters were called to testify before separate grand juries about illegal actions they might have witnessed. They refused, citing a privilege under the Press Clause, and were held in
contempt Contempt is a pattern of attitudes and behaviour, often towards an individual or a group, but sometimes towards an ideology, which has the characteristics of disgust and anger. The word originated in 1393 in Old French contempt, contemps, ...
.


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." 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." He did not overlook the importance of a free press, however, and he 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, 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, 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 exists but was simply not warranted in the specific case of ''Branzburg''. In ''Zerilli v. Smith'' the
Court of Appeals for the D.C. Circuit The United States Court of Appeals for the District of Columbia Circuit (in case citations, D.C. Cir.) is one of the thirteen United States Courts of Appeals. It has the smallest geographical jurisdiction of any of the U.S. federal appellate cou ...
concluded that the reporter's privilege existed and that 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'', Judge Posner reaffirmed the majority's opinion in ''Branzburg'' in a case concerning a refusal to stay an order, in a terrorism case in
Ireland Ireland ( ; ga, Éire ; Ulster Scots dialect, Ulster-Scots: ) is an island in the Atlantic Ocean, North Atlantic Ocean, in Northwestern Europe, north-western Europe. It is separated from Great Britain to its east by the North Channel (Grea ...
, to subpoena recordings of a key witness possessed by a group of journalists. Posner used 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 The United States district courts are the trial courts of the United States federal judiciary, U.S. federal judiciary. There is one district court for each United States federal judicial district, federal judicial district, which each cover o ...
Chief Judge Thomas Hogan in a memorandum opinion denying a motion to quash two grand jury subpoenas issued to reporters.
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Washington Bureau Chief
Tim Russert Timothy John Russert (May 7, 1950 – June 13, 2008) 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, Wa ...
and ''
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'' magazine reporter Matthew Cooper challenged the subpoenas issued in connection with the leak of the identity of former
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operative
Valerie Plame Valerie Elise Plame (born August 13, 1963) is an American writer, spy novelist, and former Central Intelligence Agency (CIA) officer. As the subject of the 2003 Plame affair, also known as the CIA leak scandal, Plame's identity as a CIA officer ...
, 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. In 2007, the ''New York Times'' published Justice Powell's notes of the court's private conference on a form that looks like a scorecard. 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?


Quotes

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 Abrams Floyd Abrams (born in July 9, 1936) is an American attorney at Cahill Gordon & Reindel. He is an expert on constitutional law and has argued in 13 cases before the Supreme Court of the United States. Abrams represented ''The New York Times'' ...
Floyd Abrams Floyd Abrams (born in July 9, 1936) is an American attorney at Cahill Gordon & Reindel. He is an expert on constitutional law and has argued in 13 cases before the Supreme Court of the United States. Abrams represented ''The New York Times'' ...
, '' Speaking Freely'', published by
Viking Press Viking Press (formally Viking Penguin, also listed as Viking Books) is an American publishing company owned by Penguin Random House. It was founded in New York City on March 1, 1925, by Harold K. Guinzburg and George S. Oppenheim and then acquire ...
(2005), p. 3.


See also

*
List of United States Supreme Court cases, volume 408 This is a list of all the United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court ca ...
*
Free Flow of Information Act The Free Flow of Information Act is a bill intended to provide a news reporter with the right to refuse to testify as to information or sources of information obtained during the newsgathering and dissemination process. While numerous U.S. states h ...
*
Reporter's privilege Reporter's privilege in the United States (also journalist's privilege, newsman's privilege, or press privilege), is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or s ...
*
Shield laws in the United States A shield law is legislation designed to protect reporters' privilege. This privilege involves the right of news reporters to refuse to testify as to the information and/or sources of information obtained during the news gathering and disseminatio ...
*In the film '' Nothing But the Truth'', ''Branzburg v. Hayes'' case is quoted and discussed. *In the television series '' The Newsroom'', the case is cited and discussed in relation to the Federal government's subpoena to news anchor Will McAvoy to reveal a source. ("Contempt", Season 3)


References


External links

* {{DEFAULTSORT:Branzburg V. Hayes United States Supreme Court cases United States Free Speech Clause case law 1972 in United States case law United States evidentiary privilege case law United States grand jury case law United States Supreme Court cases of the Burger Court The Courier-Journal