434 F.2d 1081 (9th Cir. 1970), 26025, Caldwell v. United States

Docket Nº:26025.
Citation:434 F.2d 1081
Party Name:Application of Earl Caldwell and New York Times Company for an Order Quashing Grand Jury Subpoenas. v. UNITED STATES of America, Appellee. Earl CALDWELL, Appellant,
Case Date:November 16, 1970
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1081

434 F.2d 1081 (9th Cir. 1970)

Application of Earl Caldwell and New York Times Company for an Order Quashing Grand Jury Subpoenas.

Earl CALDWELL, Appellant,

v.

UNITED STATES of America, Appellee.

No. 26025.

United States Court of Appeals, Ninth Circuit.

November 16, 1970

Page 1082

Anthony G. Amsterdam, Stanford, Cal. (argued); Chas. S. Ralston, San Francisco, Cal., and William B. Turner, NAACP Legal Defense, San Francisco, Cal., for appellant.

Sidney M. Glazer (argued), Victor C. Woerheide, Richard L. Darst, Criminal Division, U.S. Dept. of Justice, Washington, D.C.; James L. Browning, Jr. U.S. Atty., San Francisco, Cal. for appellee.

Melvin L. Wulf, Joel M. Gora, American Civil Liberties Union, New York City, Paul N. Halvonik, Charles C. Marson, ACLU, San Francisco, Cal; A.L. Wirin, Fred Okrand, Lawrence R. Sperber, ACLU, Los Angeles, Cal., Leo P. Larkin, Jr., Stanley Godofsky, John J. Sheehy, of Royall, Koegel & Wells, New York City, for The Washington Post Company and Newsweek, Inc., Irwin Karp, New Jersey, New Jersey, for Authors League of America, Inc.; John B. Bates, for New York Times; John Bates, of Pillsbury, Madison, & Sutro; Morris M. Doyle of McCutchen, Doyle, Brown & Enerson, San Francisco, Cal.; Alan J. Hruska of Cravath, Swaine & Moore, New York City; Rudolph Kass, of Brown, Rudnick, Freed & Gesmer, Boston, Mass; Stanley Godofsky of Royall, Koegel & Wells, New York City; Robert M. Dunne of Dunne, Phelps & Mills, San Francisco, Cal., for amici curiae.

Before MERRILL and ELY, Circuit Judges, and JAMESON, District Judge [*]

Page 1083

MERRILL, Circuit Judge:

Earl Caldwell appeals from an order holding him in contempt of court for disregard of an order directing him to appear before the Grand Jury of the United States District Court for the Northern District of California pursuant to a subpoena issued by the Grand Jury.

Appellant is a black news reporter for the New York Times. He has become a specialist in the reporting of news concerning the Black Panther Party. The Grand Jury is engaged in a general investigation of the Black Panthers and the possibility that they are engaged in criminal activities contrary to federal law.

In order to protect First Amendment interests asserted by appellant, the District Court order of attendance, which appellant disregarded, expressly granted appellant the privilege of silence as to certain matters until such time as the Government should demonstrate 'a compelling and over-riding national interest in requiring Mr. Caldwell's testimony which cannot be served by any alternative means.' This protective order provided:

'(1) That * * * he shall not be required to reveal confidential associations, sources or information received, developed or maintained by him as a professional journalist in the course of his efforts to gather news for dissemination to the public through the press or other news media. (2) That specifically, without limiting paragraph (1), Mr. Caldwell shall not be required to answer questions concerning statements made to him or information given to him by members of the Black Panther Party unless such statements or information were given to him for publication or public disclosure. (3) That, to assure the effectuation of this order, Mr. Caldwell shall be permitted to consult with his counsel at any time he wishes during the course of his appearance before the grand jury * * *.'

Appellant contends that the privilege granted by the District Court will not suffice to protect the First Amendment interests at stake; that unless a specific need for his testimony can be shown by the United States he should be excused from attendance before the Grand Jury altogether. Thus it is not the scope of the interrogation to which he must submit that is here at issue; it is whether he need attend at all.

The case is one of first impression and one in which news media have shown great interest and have accordingly favored us with briefs as amici curiae. As is true with many problems recently confronted by the courts, the case presents vital questions of public policy: questions as to how competing public interests shall be balanced. The issues require us to turn our attention to the underlying conflict between public interests and the nature of such competing interests. 1

While the United States has not appealed from the grant of privilege by the District Court (which it opposed below) and the propriety of that grant is thus not directly involved here, appellant's contentions here rest upon the same First Amendment foundation as did the protective order granted below. Thus, before we can decide whether the First Amendment requires more than a protective order delimiting the scope of interrogation, we must first decide whether it requires any privilege at all.

THE PROTECTIVE ORDER

The proceedings below were initiated by a motion by appellant to quash subpoenas issued by the Grand Jury. 2 In

Page 1084

his moving papers appellant's position was that the 'inevitable effect of the subpoenas will be to suppress vital First Amendment freedoms of Mr. Caldwell, of the New York Times, of the news media, and of militant political groups by driving a wedge of distrust and silence between the news media and the militants, and that this Court should not countenance a use of its process entailing so drastic an incursion upon First Amendment freedoms in the absence of compelling governmental interest-- not shown here-- in requiring Mr. Caldwell's appearance before the Grand Jury.'

Amici curiae solidly supported appellant in this position. The fact that the subpoenas would have a 'chilling effect' on First Amendment freedoms was impressively asserted in affidavits of newsmen of recognized stature, to a considerable extent based upon recited experience. Appellant's own history is related in his moving papers:

'Earl Caldwell has been covering the Panthers almost since the Party's beginnings. Initially received hesitatingly and with caution, he has gradually won the confidence and trust of Party leaders and rank-and-file members. As a result, Panthers will now discuss Party views and activities freely with Mr. Caldwell. * * * Their confidences have enabled him to write informed and balanced stories concerning the Black Panther Party which are unavailable to most other newsmen. If Mr. Caldwell were to disclose Black Panther confidences to governmental officials, the grand jury, or any other person, he would thereby destroy the relationship of trust which he presently enjoys with the Panthers and other militant groups. They would refuse to speak to him; they would become even more reluctant than they are now to speak to any newsmen; and the news media would thereby be vitally hampered in their ability to cover the views and activities of the militants.'

The response of the United States disputed the contention that First Amendment freedoms were endangered.

'Newsmen filing affidavits herein allege that they fear, in effect, that the Black Panthers will refrain from furnishing them with news. This contention is specious. Despite some assertions by Black Panther leaders to the contrary, the Black Panthers in fact depend on the mass media for their constant endeavor to maintain themselves in the public eye and thus gain adherents and continued support. They have continued unceasingly to exploit the facilities of the mass media for their own purposes.'

Assuming, arguendo, that this statement is correct, it is not fully responsive to the claim that First Amendment freedoms are endangered. The premise underlying the Government's statement is that First Amendment interests in this area are adequately safeguarded as long as potential news makers do not cease using the media as vehicles for their communication with the public. But the First Amendment means more than that. It exists to preserve an 'untrammeled press as a vital source of public information,' Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936). Its objective is the maximization of the 'spectrum of available knowledge,' Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Thus, it is not enough that Black Panther press releases and public addresses by Panther leaders may continue unabated in the wake of subpoenas such as the one here in question. It is not enough that the public's knowledge of groups such as the Black Panthers should be confined to their deliberate public pronouncements or distant news accounts of their occasional dramatic forays into the public view.

The need for an untrammeled press takes on special urgency in times of widespread protest and dissent. In such times the First Amendment protections

Page 1085

exist to maintain communication with dissenting groups and to provide the public with a wide range of information about the nature of protest and heterodoxy. See, e.g., Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).

The affidavits contained in this record required the conclusion of the District Court that 'compelled disclosure of information received by a journalist within the scope of such confidential relationships jeopardizes those relationships and thereby impairs the journalist's ability to gather, analyse, and publish the news.'

Accordingly we agree with the District Court that First Amendment freedoms are here in jeopardy.

On the other side of the balance is the scope of the Grand Jury's investigative power.

In his moving papers appellant complained that the Government had not disclosed the subject, direction or scope of the Grand Jury inquiry and that efforts of counsel to obtain some specification had been unavailing.

'Government counsel has said only that the grand jury has 'broad investigative powers,' that he cannot 'limit the...

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50 practice notes
  • 68 M.J. 511 (N.M.Ct.Crim.App. 2009), NMCCA 200800183, United States v. Wuterich
    • United States
    • Federal Cases Military Appeals
    • August 31, 2009
    ...were subpoenaed to testify about what they had observed, the petitioner in the final appeal before the Court, Caldwell v. United States, 434 F.2d 1081 (9th Cir.1970), was the subject of a subpoena for a reporter's notes and tape recordings of interviews with members of the Black Panther Par......
  • 618 P.2d 536 (Wash.App. Div. 1 1980), 7284-6, Senear v. Daily Journal American
    • United States
    • Washington Court of Appeals of Washington
    • October 20, 1980
    ...E. g., E. Cleary, McCormick's Handbook of the Law of Evidence § 77, at 159 (2d ed. 1972) cites with approval Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970), which utilized a balancing process in determining whether a newsperson must reveal confidential news sources to a grand jury......
  • 358 Mass. 604 (1971), In re Pappas
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • January 29, 1971
    ...and the amici seem greatly to rely on one recent case which goes substantially beyond existing authority. See Caldwell v. United States, 434 F.2d 1081 (9th Cir.), a revg. 311 F.Supp. 358, 359 (N.D.Cal.). In that case, application was made to the District Court to quash a subpoena requiring ......
  • Outtakes, hidden cameras, and the First Amendment: a reporter's privilege.
    • United States
    • William and Mary Law Review Vol. 38 Nbr. 5, July 1997
    • July 1, 1997
    ...to the public that is the foundation for the privilege"). (24.) 408 U.S. 665 (1972). (25.) See Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970), rev'd sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972); Branzburg v. Meigs, 503 S.W.2d 748 (Ky. 1971), aff'd sub nom. Branzburg, 408 ......
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43 cases
  • 68 M.J. 511 (N.M.Ct.Crim.App. 2009), NMCCA 200800183, United States v. Wuterich
    • United States
    • Federal Cases Military Appeals
    • August 31, 2009
    ...were subpoenaed to testify about what they had observed, the petitioner in the final appeal before the Court, Caldwell v. United States, 434 F.2d 1081 (9th Cir.1970), was the subject of a subpoena for a reporter's notes and tape recordings of interviews with members of the Black Panther Par......
  • 618 P.2d 536 (Wash.App. Div. 1 1980), 7284-6, Senear v. Daily Journal American
    • United States
    • Washington Court of Appeals of Washington
    • October 20, 1980
    ...E. g., E. Cleary, McCormick's Handbook of the Law of Evidence § 77, at 159 (2d ed. 1972) cites with approval Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970), which utilized a balancing process in determining whether a newsperson must reveal confidential news sources to a grand jury......
  • 358 Mass. 604 (1971), In re Pappas
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • January 29, 1971
    ...and the amici seem greatly to rely on one recent case which goes substantially beyond existing authority. See Caldwell v. United States, 434 F.2d 1081 (9th Cir.), a revg. 311 F.Supp. 358, 359 (N.D.Cal.). In that case, application was made to the District Court to quash a subpoena requiring ......
  • 581 P.2d 812 (Kan. 1978), 49268, State v. Sandstrom
    • United States
    • Kansas Supreme Court of Kansas
    • July 21, 1978
    ...had seen while inside the headquarters, including the identity of the persons he had observed. The last case, Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970), arose from a grand jury investigation of numerous crimes, including threats against the President of the United States, mai......
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6 books & journal articles
  • Outtakes, hidden cameras, and the First Amendment: a reporter's privilege.
    • United States
    • William and Mary Law Review Vol. 38 Nbr. 5, July 1997
    • July 1, 1997
    ...to the public that is the foundation for the privilege"). (24.) 408 U.S. 665 (1972). (25.) See Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970), rev'd sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972); Branzburg v. Meigs, 503 S.W.2d 748 (Ky. 1971), aff'd sub nom. Branzburg, 408 ......
  • The De Facto Reporter's Privilege.
    • United States
    • Yale Law Journal Vol. 127 Nbr. 5, March 2018
    • March 1, 2018
    ...we think the public's right to know outweighs the appellant's right of privilege"). (55.) See, e.g., Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970), rev'd sub nom. Branzburg v. Hayes, 408 U.S. 665 (1972); In re Grand Jury Witnesses, 322 F. Supp. 573 (N.D. Cal. 1970); Branzbur......
  • FOUND AND LOST: RECLAIMING THE PRESS PRIVILEGE FOR NONCONFIDENTIAL INFORMATION.
    • United States
    • Albany Law Review Vol. 80 Nbr. 4, June 2017
    • June 22, 2017
    ...In re Pappas. 266 N.E.2d 297. 298 (Mass. 1971). (32) United States v. Caldwell. 402 U.S. 942. 942 (1971); see Caldwell v. United States. 434 F.2d 1081, 1082, 1083 (9th Cir. 1970). (33) Branzburg, 408 U.S. at 667. 693; Caldwell. 434 F.2d at 1082; In re Pappas. 266 N.E.2d at 298. (34) See, e.......
  • The underprivileged profession: the case for Supreme Court recognition of the journalist's privilege.
    • United States
    • University of Pennsylvania Law Review Vol. 154 Nbr. 1, November 2005
    • November 1, 2005
    ...him for documents and testimony, and the Ninth Circuit upheld his refusal to appear or produce documents. Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970). Paul Pappas was a television news reporter stationed in Providence, Rhode Island, who had covered the Black Panthers in New Bed......
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