Application of Caldwell, Misc. No. 10426.

• Citation: 311 F. Supp. 358
• Decision Date: 08 April 1970
• Docket Number: Misc. No. 10426.
• Court: U.S. District Court — Northern District of California
• Parties: Application of Earl CALDWELL and the New York Times Company for an Order Quashing Subpoenas.

311 F. Supp. 358

Application of Earl CALDWELL and the New York Times Company for an Order Quashing Subpoenas.

Misc. No. 10426.

United States District Court, N. D. California.

April 6, 1970.

Supplemental Opinion April 8, 1970.

Anthony G. Amsterdam, Stanford, Cal., Charles Stephen Ralston, San Francisco, Cal., for Earl Caldwell.

Pillsbury, Madison & Sutro, John B. Bates, Armando M. Menocal, III, William S. Mailliard, Jr., San Francisco, Cal., for The New York Times Co.

James L. Browning, Jr., U. S. Atty., San Francisco, Cal., Victor C. Woerheide, Jr., Jerome K. Heilbron, Sp. Attys., Dept. of Justice, Washington, D. C., for United States.

MEMORANDUM OPINION

ZIRPOLI, District Judge.

This matter comes before the Court on the motion of Earl Caldwell (a full time staff reporter of the newspaper, The New York Times) and The New York Times Company, publisher of the newspaper and employer of Mr. Caldwell, to quash a subpoena ad testificandum summoning Mr. Caldwell to appear and give testimony relative to interviews with officers and spokesmen of the Black Panther Party, which interviews conducted by Mr. Caldwell, movants assert were confidential and within the scope of a relationship of trust maintained by him as a professional journalist with members of the Panther Party. The subpoena was issued by the Federal Grand Jury sitting in this District and served on Mr. Caldwell on March 16, 1970.^*

Preliminarily, the Court is called upon to determine the standing of The New York Times Company, publisher of the newspaper, to join with its full time staff reporter, Earl Caldwell, to challenge the grand jury subpoena of March 16, 1970.

Based upon the Supreme Court's teachings, "the gist of the question of standing" is whether the party seeking relief has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions". Baker v. Carr (1962) 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed. 2d 663.

That personal "stake" or interest need not be a strict "legal interest" in the controversy, such as "one of property." It is sufficient for the purposes of standing, if the party seeking relief shows that the challenged action has and will cause him "injury in fact, economic or otherwise." See decision of the Supreme Court in Association of Data Processing Service Organizations, Inc., et al. v. Camp, et al., decided March 3, 1970 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed. 2d 184.

The New York Times Company has such an interest in the work product of Mr. Caldwell and the knowledge he has acquired in the course of his employment as a full time reporter for it. This is clearly evidenced by the affidavit of Mr. John B. Bates and is not disputed. Accordingly, the Court finds that The New York Times Company has standing to join in the application to quash the subpoena served on Earl Caldwell on March 16, 1970.

The standing of The New York Times Company to join in the instant motion having been established, the Court now directs its attention to the issues presented by the motion. Movants contend that the contents of Mr. Caldwell's interviews under the circumstances here presented are protected against compulsory disclosure by the First Amendment to the Constitution, and that the compelled appearance of Mr. Caldwell before the grand jury will have a drastic chilling and repressive effect on First Amendment freedoms. Accordingly, they ask that the subpoena be quashed; or alternatively, that the subpoena be limited so as to protect Mr. Caldwell's confidential relations.

The relief sought presents issues of significant magnitude, issues that go to the very core of the First Amendment, the resolution of which may well be determinative of the scope of the journalist's privilege in sensitive areas of freedom of speech, press and association not heretofore fully explored and decided by the Supreme Court of the United States.

Reduced to their simplest terms the questions presented are:

1. Must Earl Caldwell appear before the grand jury in response to the subpoena issued March 16, 1970?

2. If he must appear, should the Court issue a protective order limiting the interrogation of Mr. Caldwell?

The short answer to these questions is "yes" as to each question.

1. Mr. Caldwell must respond to the subpoena. It has long been settled "that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the government is bound to perform upon being properly summoned" (Blair v. United States (1919) 250 U.S. 273, 281, 39 S.Ct. 468, 471, 63 L.Ed. 979 (emphasis added); United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 94 L.Ed. 884.

2. On the facts of this case, he is entitled to a protective order. When the exercise of the grand jury power of testimonial compulsion so necessary to the effective functioning of the court may impinge upon or repress First Amendment rights of freedom of speech, press and association, which centuries of experience have found to be indispensable to the survival of a free society, such power shall not be exercised in a manner likely to do so until there has been a clear showing of a compelling and overriding national interest that cannot be served by alternative means.

Accordingly, it is the order of the Court that Earl Caldwell shall respond to the subpoena and appear before the grand jury when directed to do so, but that he need not reveal confidential associations that impinge upon the effective exercise of his First Amendment right to gather news for dissemination to the public through the press or other recognized media until such time as a compelling and overriding national interest which cannot be alternatively served has been established to the satisfaction of the Court.

The contention of movants that the subpoenas "are very probably based upon information obtained by the Government through electronic surveillance" is, upon the facts before the Court, one that movants do not at this posture of the grand jury investigation have standing to raise and to the degree that movants seek to quash the...