Branzburg v. Hayes

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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 drug 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.

1 Facts
2 Decision
3 Subsequent history
4 Quotes about the case
5 See Also
6 References

[edit] 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.

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.

[edit] 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. This 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.

[edit] Subsequent history

July, 2004 – Branzburg was cited as precedent by United States District Court Chief Judge 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:

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.

[edit] 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^[2]