408 U.S. 665 (1972), 70, United States v. Caldwell

Docket Nº:No. 70--57.
Citation:408 U.S. 665, 92 S.Ct. 2686, 33 L.Ed.2d 657
Party Name:UNITED STATES, Petitioner, v. Earl CALDWELL.
Case Date:June 29, 1972
Court:United States Supreme Court

Page 665

408 U.S. 665 (1972)

92 S.Ct. 2686, 33 L.Ed.2d 657

UNITED STATES, Petitioner,



No. 70--57.

United States Supreme Court.

June 29, 1972

Dissenting Opinion.

For majority opinion see 92 S.Ct. 2646.

Page 711

[92 S.Ct. 2686] Mr. Justice DOUGLAS, dissenting.

Caldwell, a black, is a reporter for the New York Times and was assigned to San Francisco with the hope that he could report on the activities and attitudes of the Black Panther Party. Caldwell in time gained the complete confidence of its members and wrote in-depth articles about them.

He was subpoenaed to appear and testify before a federal grand jury and to bring with him notes and tapes covering interviews with its members. A hearing on a motion to quash was held. The District Court ruled that while Caldwell had to appear before the grand jury, he did not have to reveal confidential communications unless the court was satisfied that there was a 'compelling and overriding national interest.' See Application of Caldwell, 311 F.Supp. 358, 362. Caldwell filed a notice of appeal and the Court of Appeals dismissed the appeal without opinion.

Shortly thereafter a new grand jury was impanelled and it issued a new subpoena for Caldwell to testify. On a motion to quash, the District Court issued an order substantially identical to its earlier one.

Caldwell refused to appear and was held in contempt. On appeal, the Court of Appeals vacated the judgment of contempt. It said that the revealing of confidential sources of information jeopardized a First Amendment freedom and that Caldwell did not have to appear before the grand jury absent a showing that there was a 'compelling and overriding national interest' in pursuing such an interrogation.

The District Court had found that Caldwell's knowledge of the activities of the Black Panthers 'derived in substantial part' from information obtained 'within the scope of a relationship of trust and confidence.' Id., at 361. It also found that confidential relationships of this sort are commonly developed and maintained by

Page 712

professional journalists, and are indispensable to their work of gathering, analyzing, and publishing the news.

The District Court further had found that compelled disclosure of information received by a journalist within the scope of such confidential relationships jeopardized those relationships and thereby impaired the journalist's ability to gather, analyze, and publish the news.

The District Court, finally, had found that, without a protective order delimiting [92 S.Ct. 2687] the scope of interrogation of Earl Caldwell by the grand jury, his appearance and examination before the jury would severely impair and damage his confidential relationships with members of the Black Panther Party and other militants, and thereby severely impair and damage his ability to gather, analyze, and publish news concerning them; and that it would also damage and impair the abilities of all reporters to gather, analyze, and publish news concerning them.

The Court of Appeals agreed with the findings of the District Court but held that Caldwell did not have to appear at all before the grand jury absent a 'compelling need' shown by the Government. 9 Cir., 434 F.2d 1081.

It is my view that these is no 'compelling need' that can be shown which qualifies the reporter's immunity from appearing or testifying before a grand jury, unless the reporter himself is implicated in a crime. His immunity in my view is therefore quite complete, for, absent his involvement in a crime, the First Amendment protects him against an appearance before a grand jury and if he is involved in a crime, the Fifth Amendment stands as a barrier. Since in my view there is no area of inquiry not protected by a privilege, the reporter need not appear for the futile purpose of invoking one to each question. And, since in my view a newsman has an absolute right not to appear before a grand jury, it follows for me that a journalist who voluntarily appears before that body may invoke his First Amendment privilege to specific questions.

Page 713

The basic issue is the extent to which the First Amendment (which is applicable to investigating committees, Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929; Baird v. State Bar of Arizona, 401 U.S. 1, 6--7, 91 S.Ct. 702, 705--707, 27 L.Ed.2d 639; In re Stolar, 401 U.S. 23, 91 S.Ct. 713, 27 L.Ed.2d 657) must yield to the Government's asserted need to know a reporter's unprinted information.

The starting point for decision pretty well marks the range within which the end result lies. The New York Times, whose reporting functions are at issue here, takes the amazing position that First Amendment rights are to be balanced against other needs or conveniences of government. 1 My belief is that all of the 'balancing' was done by those who wrote the Bill of Rights. By casting the First Amendment in absolute terms, they repudiated the timid, watered-down, emasculated versions of the First Amendment which both the Government and the New York Times advance in the case.

My view is close to that of the late Alexander Meiklejohn: (FN2)

'For the understanding of these principles it is essential to keep clear the crucial difference between 'the rights' of the governed and 'the powers' of the governors. And at this point, the title 'Bill of Rights' is lamentably inaccurate as a designation

Page 714

of the first ten amendments. They are not a 'Bill or Rights' but a 'Bill of Powers and Rights.' The Second through the Ninth Amendments limit the powers of the subordinate agencies [92 S.Ct. 2688] in order that due regard shall be paid to the private 'rights' of the governed.' The First and Tenth Amendments protect the governing 'powers' of the people from abridgment by the agencies which are established as their servants. In the field of our 'rights,' each one of us can claim 'due process of law.' In the field of our governing 'powers,' the notion of 'due process' is irrelevant.'

He also believed that '(s)elf-government can exist only insofar as the voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express,' 3 and that '(p)ublic discussions of public issues, together with the spreading of information and opinion bearing on those issues, must have a freedom unabridged by our agents. Though they govern us, we, in a deeper sense, govern them. Over our governing, they have no power. Over their governing we have sovereign power.' 4

Two principles which follow from this understanding of the First Amendment are at stake here. One is that the people, the ultimate governors, must have absolute freedom of, and therefore privacy of, their individual opinions and beliefs regardless of how suspect or strange they may appear to others. Ancillary to that principle is the conclusion that an individual must also have absolute privacy over whatever information he may generate in the course of testing his opinions and beliefs. In this regard, Caldwell's status as a reporter is less relevant than is his status as a student who affirmatively pursued empirical research to enlarge his own intellectual viewpoint.

Page 715

The second principle is that effective self-government cannot succeed unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and re-examination. In this respect, Caldwell's status as a news-gatherer and an integral part of that process becomes critical.

Page I

Government has many interests that compete with the First Amendment. Congressional investigations determine how existing laws actually operate or whether new laws are needed. While congressional committees have broad powers, they are subject to the restraints of the First Amendment. As we said in Watkins v. United States, 354 U.S., at 197, 77 S.Ct., at 1184: 'Clearly, an investigation is subject to the command that the Congress shall make no law abridging freedom of speech or press or assembly. While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless an investigation is part of lawmaking. It is justified solely as an adjunct to the legislative process. The First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking.'

Hence, matters of belief, ideology, religious practices, social philosophy, and the like are beyond the pale and of no rightful concern of government, unless the belief or the speech, or other expression has been translated into action. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628; Baird v. State Bar of Arizona, 401 U.S., at 6--7, 91 S.Ct., at 705--707; In re Stolar, 401 U.S. 23, 91 S.Ct. 713, 27 L.Ed.2d 657.

Also at stake here is Caldwell's privacy of association. We have held that '(i)nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.'

Page 716

NAACP v. Alabama ex rel. Patterson, 357 U.S., at 462, 78 S.Ct., at 1172; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405.

[92 S.Ct. 2689] As I said in Gibson v. Florida Legislative Investigation Committee, 372 U.S., at 565, 83 S.Ct., at 903: 'the associational rights protected by the First Amendment . . . cover the entire spectrum in political ideology...

To continue reading