Branzburg v. Hayes In the Matter of Paul Pappas, Petitioner. United States, Petitioner, v. Earl Caldwell. — 85, 70 8212 94, 70 8212 57

• Citation: 33 L.Ed.2d 626,92 S.Ct. 2646,408 U.S. 665
• Decision Date: 29 June 1972
• Docket Number: Nos. 70,s. 70
• Parties: Paul M. BRANZBURG, Petitioner, v. John P. HAYES, Judge, etc., et al. In the Matter of Paul PAPPAS, Petitioner. UNITED STATES, Petitioner, v. Earl CALDWELL. —85, 70—94, 70—57
• Court: United States Supreme Court

408 U.S. 665

92 S.Ct. 2646

33 L.Ed.2d 626

Paul M. BRANZBURG, Petitioner,

v John P. HAYES, Judge, etc., et al.

In the Matter of Paul PAPPAS, Petitioner.

UNITED STATES, Petitioner,

v. Earl CALDWELL.

Nos. 70—85, 70—94, 70—57.

Argued Feb. 22, 23, 1972.

Decided June 29, 1972.

Syllabus

The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof. Pp. 679—709.

No. 70—85, 461 S.W.2d 345, and Kentucky Court of Appeals judgment in unreported case of Branzburg v. Meigs; and No. 70—94, 358 Mass. 604, 266 N.E.2d 297, affirmed; No. 70—57, 434 F.2d 1081, reversed.

On Writ of Certiorari to the Court of Appeals of Kentucky.

On Writ of Certiorari to the Supreme Judicial Court of Massachusetts.

On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit.

Edgar A. Zingman, Louisville, Ky., for petitioner Paul M. Branzburg in No. 70—85; Robert C. Ewald, Louisville, Ky., on the briefs.

E. Barrett Prettyman, Jr., Washington, D.C., for petitioner, the Commonwealth of Mass. in No. 70—94; William H. Carey, New Bedford, Mass., on the briefs.

Solicitor Gen., Erwin Griswold for the United States in No. 70—57; David A. Wilson, Jr., Peterson, Asst. Attys. Gen., William Bradford Reynolds, Beatrice Rosenberg, and Sidney M. Glazer, Washington, D.C., on the briefs.

Edwin A. Schroeting, Jr., Louisville, Ky., for respondents John P. Hayes and others in No. 70—85; W. C. Fisher, Jr., Louisville, Ky., on the brief.

Joseph J. Hurley, First Asst. Atty. Gen., for respondent, Commonwealth of Mass., in No. 70—94; Robert H. Quinn, Atty. Gen., Walter H. Mayo III, Asst. Atty. Gen., and Lawrence T. Bench, Deputy Asst. Atty. Gen., on the brief.

Anthony G. Amsterdam, Washington, D.C., for respondent Earl Caldwell in No. 70—57; Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, New York City, and William Bennett Turner, San Francisco, Cal., on the brief.

William Bradford Reynolds, Washington, D.C., for the United States as amicus curiae urging affirmance in Nos. 70—85 and 70—94; Sol. Gen. Erwin Griswold, Asst. Atty. Gen., David B. Wilson, Jr., and Beatrice Rosenberg, Washington, D.C., on the brief.

Briefs of amici curiae urging affirmance in No. 70—57 and reversal in Nos. 70—85 and 70—94 were filed by Alexander M. Bickel, New Haven, Conn., Lawrence J. McKay, Floyd Abrams, Daniel Sheehan, Corydon B. Dunham, Clarence Fried, Alan J. Hruska, New York City, Robert S. Rifkind, Washington, D.C., Anthony A. Dean, and Edward C. Wallace, New York City, for New York Times Co., Inc., and others; by Don H. Reuben, Lawrence Gunnels, Steven L. Bashwiner, and Thomas F. Ging., Chicago, Ill., for Chicago Tribune Co.; by Arthur B. Hanson, Washington, D.C., for American Newspaper Publishers Assn.; and by Irving Leuchter, Newark, N.J., for American Newspaper Guild, AFL-CIO, CLC.

John T. Corrigan, Cleveland, Ohio, filed a brief for the National District Attorneys Association urging reversal in No. 70 57 and affirmance in No. 70—94.

Briefs of amici cruiae urging affirmance in No. 70—57 were filed by Irwin Karp, New York City, for Authors League of America, Inc.; by W. Theodore Pierson and J. Laurent Scharff, Washington, D.C., for Radio Television News Directors Assn.; and by Earle K. Moore and Samuel Rabinove, New York City, for Office of Communication of the United Church of Christ and others.

Briefs of amici curiae in No. 70—57 were filed by Leo P. Larkin, Jr., Stanley Godofsky, and John J. Sheehy, New York City, for Washington Post Co. and others; by Richard M. Schmidt, Jr., for American Society of Newspaper Editors and others; by Roger A. Clark, New York City, for National Press Photographers Assn.; and by Melvin L. Wulf, New York City, Paul N. Halvonik, San Francisco, Cal., A. L. Wirin, Fred Okrand and Lawrence R. Sperber, Los Angeles, Cal., for American Civil Liberties Union and others.

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 reveal the identity of the two hashish makers.¹ 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. ² A state trial court judge³ ordered petitioner to answer these questions and rejected his contention that the Kentucky reporters' privilege statute, Ky.Rev.Stat. § 421.100 (1962),⁴ 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 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.

The second case involving petitioner Branzburg arose out of his later story published on January 10, 1971, which described in detail the use of drugs in Frankfort, Kentucky. The article reported that in order to provide a comprehensive survey of the 'drug scene' in Frankfort, petitioner had 'spent two weeks interviewing several dozen drug users in the capital city' and had seen some of them smoking marihuana. A number of conversations with and observations of several unnamed drug users were recounted. Subpoenaed to appear before a Franklin County grand jury 'to testify in the matter of violation of statutes concerning use and sale of drugs,' petitioner Branzburg moved to quash the summons;⁵ the motion was denied, al- though an order was issued protecting Branzburg from revealing 'confidential associations, sources or information' but requiring that he 'answer any questions which concern or pertain to any criminal act, the commission of which was actually observed by (him).' Prior to the time he was slated to appear before the grand jury, petitioner sought mandamus and prohibition from the Kentucky Court of Appeals, arguing that if he were forced to go before the grand jury or to answer questions regarding the identity of informants or disclose information given to him in confidence, his effectiveness as a reporter would be greatly damaged. The Court of Appeals once again denied the requested writs, reaffirming its construction of Ky.Rev.Stat. § 421.100, and rejecting petitioner's claim of a First Amendment privilege. It distinguished Caldwell v. United States, 434 F.2d 1081 (CA9 1970), and it also announced its 'misgivings' about that decision, asserting that it represented 'a drastic departure from the generally recognized rule that the sources of information of a newspaper reporter are not privileged under the First Amendment.' It characterized petitioner's fear that his ability to obtain news would be destroyed as 'so tenuous that it does not, in the opinion of this court, present an issue of abridgement of the freedom of the press within the meaning of that term as used in the Constitution of the United States.'

Petitioner sought a writ of certiorari to review both judgments of the Kentucky Court of Appeals, and we granted the writ.⁶ 402 U.S. 942, 91 S.Ct. 1616, 29 L.Ed.2d 109 (1971).

In re Pappas, No. 70—94, originated when petitioner Pappas, a television newsman-photographer working out of the Providence, Rhode Island, office of a New Bedford, Massachusetts, television station, was called to New Bedford on July 30, 1970, to report on civil disorders there which involved fires and other turmoil. He intended to cover a Black Panther news conference at that group's headquarters in a boarded-up store. Petitioner found the streets around the store barricaded, but he ultimately gained entrance to the area and recorded and photographed a prepared statement read by one of the Black Panther leaders at about 3 p.m.⁷ He then asked for and received permission to re-enter the area. Returning at about 9 o'clock, he was allowed to enter and remain inside Panther headquarters. As a condition of entry, Pappas agreed not to disclose anything he saw or heard inside the store except an anticipated police raid, which Pappas, 'on his own,' was free to photograph and report as he wished. Pappas stayed inside the headquarters for about three...