Key Documents: Section I. Journalism, Media, and the Law - Reporter's Privilege to Withhold Information

Introduction

Paul Branzburg wrote investigative pieces for the Louisville Courier-Journal in 1969 and 1971 where he gave first-hand accounts of illegal drug activities. He then battled two separate grand jury orders to reveal the identities of his sources. Branzburg lost his fight at both the state appellate level and in a tight 5–4 decision at the Supreme Court. But a rare, landmark dissenting opinion turned Branzburg v. Hayes into a qualified victory—as well as a clear defeat—for the right of journalists to protect their confidential sources in court.

The plight of two other journalists, who had also defied grand juries in a similar fashion, was bundled into the Branzburg case. Justice Byron White wrote a majority opinion that specifically rejected the First Amendment as a buffer against compelling journalists to testify in criminal cases in front of a grand jury. White believed the Court could not ascribe to the idea that “it is better to write about crime than to do something about it.” He also gave little credence to the notion that reporter testimony would stifle the cooperation of news sources down the line. Yet, White said that there was some merit to First Amendment protection of confidential sources, and legislatures rather than courts should be deciding on reporter privilege in this area.

Justice Potter Stewart wrote a dissenting opinion that spelled out the parameters for journalists to have a somewhat limited right to protect sources. Stewart said a First Amendment privilege for reporters to refuse to testify should be guaranteed except where the government met a “heavy burden of justification” to suggest otherwise. Stewart's Branzburg Test required officials to show: probable cause to believe that a reporter has information clearly relevant to a specific violation of law, the information sought cannot be obtained by alternate means less destructive of the First Amendment values, a compelling and overriding interest in the information. Lower courts have demonstrated a tendency to apply Stewart's limited privilege test when grand juries don't come into play, and White's call for legislators to handle reporter-source protection issues has helped lay the groundwork for shield laws in more than 30 states.

—Glenn Lewis Volume Editor

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

No. 70-85 Argued February 23, 1972 Decided June 29, 1972

Opinion of the Court by MR. JUSTICE WHITE, announced by THE CHIEF JUSTICE.

The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not.

I

The writ of certiorari in No. 70-85, Branzburg v. Hayes and Meigs, brings before us two judgments of the Kentucky Court of Appeals, both involving petitioner Branzburg, a staff reporter for the Courier-Journal, a daily newspaper published in Louisville, Kentucky.

On November 15, 1969, the Courier-Journal carried a story under petitioner's by-line describing in detail his observations of two young residents of Jefferson County synthesizing hashish from marihuana, an activity which, they asserted, earned them about $5,000 in three weeks. The article included a photograph of a pair of hands working above a laboratory table on which was a substance identified by the caption as hashish. The article stated that petitioner had promised not to [408 U.S. 665, 668] reveal the identity of the two hashish makers. Petitioner was shortly subpoenaed by the Jefferson County grand jury; he appeared, but refused to identify the individuals he had seen possessing marihuana or the persons he had seen making hashish from marihuana. A state trial court judge ordered petitioner to answer these questions and rejected his contention that the Kentucky reporters' privilege statute, Ky. Rev. Stat. 421.100 (1962), the First Amendment of the United States Constitution, or 1, 2, and 8 of the Kentucky Constitution authorized his refusal to answer. Petitioner then sought prohibition and mandamus in the Kentucky Court of Appeals on the same grounds, but the Court of Appeals denied the petition. Branzburg v. [408 U.S. 665, 669] Pound, 461 S. W. 2d 345 (1970), as modified on denial of rehearing, Jan. 22, 1971. It held that petitioner had abandoned his First Amendment argument in a supplemental memorandum he had filed and tacitly rejected his argument based on the Kentucky Constitution. It also construed Ky. Rev. Stat. 421.100 as affording a newsman the privilege of refusing to divulge the identity of an informant who supplied him with information, but held that the statute did not permit a reporter to refuse to testify about events he had observed personally, including the identities of those persons he had observed.

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