Branzburg v. Hayes
408 U.S. 665 (1972)

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U.S. Supreme Court

Branzburg v. Hayes, 408 U.S. 665 (1972)

Branzburg v. Hayes

No. 70-85

Argued February 23, 1972

Decided June 29, 1972*

408 U.S. 665

Syllabus

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. Pp. 408 U. S. 679-709.

No. 705, 461 S.W.2d 345, and Kentucky Court of Appeals judgment in unreported case of Branzburg v. Meigs, and No. 70-94, 358 Mass. 604, 266 N.E.2d 297, affirmed; No. 70-57, 434 F.2d 1081, reversed.

WHITE, J., wrote the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 408 U. S. 709. DOUGLAS, J., filed a dissenting opinion, post, p. 408 U. S. 711. STEWART, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 408 U. S. 725.

Page 408 U. S. 667

Primary Holding
A reporter cannot claim First Amendment protection in withholding confidentially received information from a grand jury.
Facts
Branzburg declined to testify before a state grand jury about information that he had obtained for a newspaper in an investigation of drug activities. Pappas also refused to testify on his experiences inside Black Panther headquarters, even though he was a TV reporter who had not written any articles. Another reporter named Caldwell had interviewed Black Panther leaders and written stories about them, but he refused to testify before a federal grand jury that was investigating threats against the President and traveling across state lines to incite a riot. Branzburg and Pappas were held in contempt, although Caldwell was not.

Opinions

Majority

  • Byron Raymond White (Author)
  • Warren Earl Burger
  • Harry Andrew Blackmun
  • Lewis Franklin Powell, Jr.
  • William Hubbs Rehnquist

There is no testimonial privilege for reporters that goes beyond protections for ordinary citizens. Civil and criminal laws of general applicability may affect the press and cause some mild burden on speech without violating the First Amendment. The reporter can be expected to release this information to political groups, and grand jury proceedings are held in secret. There was no reason to expect that the reporters necessarily would be called to testify at trial, and they would have access to protections for informants that the police provide.

There is a stronger public interest in deterring crime than in preserving the flow of news. The information sought by the grand jury was relevant to the potential indictments, and it was limited in scope.

Concurrence

  • Lewis Franklin Powell, Jr. (Author)

In the event that the requested testimony is only tangentially related to the subject of the investigation, a grand jury witness still has the opportunity to quash the subpoena.

Dissent

  • Potter Stewart (Author)
  • William Joseph Brennan, Jr.
  • Thurgood Marshall

Journalist sources should not be stripped of the shield of confidentiality, nor should reporters. This may lead to the loss of valuable information and the chilling of public debate. Most sources would choose to remain silent rather than risk exposing themselves by providing information.

Dissent

  • William Orville Douglas (Author)

Case Commentary

The aftermath of this decision saw states institute journalism shield laws that allow media to refrain from disclosing confidential sources in many situations.

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