Branzburg v. Hayes, in re Pappas; United States v. Caldwell, 408 U.S. 205; 92 S. Ct. 2646; 33 L. Ed. 2d 626 (1972)

Facts—On November 15, 1969, the Louisville Courier-Journal carried a story under Paul Branzburg’s byline describing in detail the drug activities of two persons. He was subpoenaed by the Jefferson County grand jury, but he refused to identify the two hashish makers since he had promised them not to reveal their identity. Branzburg maintained that if forced to reveal confidential sources, reporters would be measurably deterred from furnishing publishable information, and that this would work to the detriment of a free press. This case was combined with similar cases where reporters had been investigating the Black Panther organization.

Question—Must reporters respond to grand jury subpoenas and answer questions relevant to an investigation into the commission of a crime?

Decision—Yes.

Reasons—J. White (5–4). The great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering such questions. The First Amendment interest asserted by newsmen is out weighed by the general obligation of citizens to appear before a grand jury or at trial, pursuant to a subpoena, and to give what information they possess. Public interest in law enforcement and in ensuring effective grand jury proceedings outweighs the consequential but uncertain burden on news gathering.

Dissenters led by J. Stewart and J. Douglas stressed reporters’ need for confidentiality and the important role that they play in providing for public access to information that might otherwise be unavailable.

Note—As one consequence of Branzburg, some states have passed “shield laws” that extend privileged communication to journalists as it has been open to spouses, doctors, lawyers, and clergy.