Branzburg v. Hayes, 408 U.S. 665 (1972) (full-text).
Factual Background Edit
The reporters in all three of the cases decided in Branzburg had sought a privilege not to testify before grand juries. After explaining the grounds on which journalists seek a privilege, the Court noted that the reporters in the cases it was considering were seeking only a qualified privilege not to testify:
- Although the newsmen in these cases do not claim an absolute privilege against official interrogation in all circumstances, they assert that the reporter should not be forced either to appear or to testify before a grand jury or at trial until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to a crime the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned by the disclosure.
U.S. Supreme Court Proceedings Edit
Majority opinion Edit
The U.S. Supreme Court wrote that journalists claim
- that to gather news it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment.
The Court held, nonetheless, that the First Amendment did not provide even a qualified privilege for journalists to refuse “to appear and testify before state or federal grand juries.” The only situation it mentioned in which the First Amendment would allow a reporter to refuse to testify was in the case of “grand jury investigations . . . instituted or conducted other than in good faith. . . . Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification.”
Powell's concurring opinion Edit
Branzburg was a 5-4 decision, and, though Justice Powell was one of the five in the majority, he also wrote a concurring opinion in which he found that reporters have a qualified privilege to refuse to testify regarding criminal conduct:
- 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. 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.
Powell’s opinion leaves it uncertain whether the [[First Amendment] provides a qualified privilege for journalists to refuse to testify before grand juries. But "courts in almost every circuit around the country interpreted Justice Powell’s concurrence, along with parts of the Court’s opinion, to create a balancing test when faced with compulsory process for press testimony and documents outside the grand jury context."
- ↑ 408 U.S. at 680.
- ↑ Id. at 667.
- ↑ Id. at 707-08.
- ↑ Id. at 710.
- ↑ Justice Stewart’s dissenting opinion in Branzburg referred to “Justice Powell’s enigmatic concurring opinion.” Id. at 725. Judge Tatel of the D.C. Circuit wrote, "Though providing the majority’s essential fifth vote, he [Powell] wrote separately to outline a 'case-by-case' approach that fits uncomfortably, to say the least, with the Branzburg majority’s categorical rejection of the reporters' claims." In re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 987 (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005) (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006).
- ↑ Association of the Bar of the City of New York, The Federal Common Law of Journalists’ Privilege: A Position Paper (2005) at 4-5.