Farr v. Pitchess, 72-3171

• Decision Date: 07 August 1975
• Docket Number: No. 72-3171,72-3171
• Citation: 522 F.2d 464
• Parties: 1 Media L. Rep. 2557 William T. FARR, Petitioner-Appellant, v. Peter J. PITCHESS, Sheriff of Los Angeles County, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 464

522 F.2d 464

1 Media L. Rep. 2557

William T. FARR, Petitioner-Appellant, v. Peter J. PITCHESS, Sheriff of Los Angeles County, Respondent-Appellee.

No. 72-3171.

United States Court of Appeals, Ninth Circuit.

Aug. 7, 1975.

Rehearing and Rehearing En Banc Denied Sept. 12, 1975.

Mark E. Hurwitz (argued), Orange, Cal., for petitioner-appellant.

William F. Stewart, Deputy County Counsel (argued), Los Angeles, Cal., for respondent-appellee.

OPINION

Before BROWNING and CHOY, Circuit Judges, and McNICHOLS, ^* District Judge.

McNICHOLS, District Judge:

This appeal presents the no-longer novel question regarding the extent of protection afforded by the First Amendment "free press" provision to a newspaper reporter who resists judicially ordered disclosure of his news sources. William T. Farr, appellant, is a newsman who was sent to jail by a California State Court after being adjudged in contempt for refusing to name the allegedly confidential suppliers of certain information. Unsuccessful in obtaining relief in the state courts, he sought a Writ of Habeas Corpus in the United States District Court. His petition was denied and the instant appeal ensued. Jurisdiction below was based on 28 U.S.C. § 2254; our jurisdiction is found in 28 U.S.C. § 1291.

The controversy initially arose against a background of the widely publicized Los Angeles trial of Charles Manson and his "family" for first-degree murder. The state trial judge, mindful of his obligation to take such steps as the circumstances required to insure a fair trial to the defendants, undertook to control the release of prejudicial information. To avoid publication of out-of-court statements, an order was promulgated prohibiting any attorney, court attache, or witness from releasing for public dissemination the contents or nature of proposed trial testimony or other evidence.

Subsequent to the entry of this order, and during the early course of a lengthy trial, the Deputy District Attorney, having responsibility for the prosecution, obtained the written statement of one Virginia Graham, a potential witness. This statement purported to report a confession made to Graham by Susan Atkins, a Manson co-defendant. The confession, as related, implicated Manson and revealed plans by Manson and others to murder, in a most bizarre manner, several show business personalities. Pursuant to court directives, each attorney of record and the judge were provided a transcript of the Graham statement. No other copies were to be released. The court found the statements to be inadmissible as evidence against the defendants.

Enter the petitioner-appellant, William T. Farr, then a reporter for the Los Angeles Herald Examiner, assigned to cover the Manson trial. A few days after the Graham statement had been delivered to counsel and determined to be inadmissible as evidence, Farr obtained two copies, apparently from two, separate individuals. Word of this breach of security was somehow communicated to the trial judge who summoned appellant to his chambers. An extensive colloquy ensued, the details of which are not relevant here, in view of the disposition we make of the case. It is sufficient to note that Farr rejected the invitation of the judge to disclose the name or names of those from whom he received copies of the Graham statement. Farr indicated that he had promised confidentiality to the two persons involved.

The following day's edition of the Herald Examiner carried Farr's by-line over a story with full and lurid details curried from the supposed confession disclosed in the Graham statement.

Seven months later, and one month after a jury verdict against the Manson defendants had been entered, the trial judge formally ordered appellant to appear and show cause why he should not be compelled to disclose the names of the persons who had supplied him with copies of the Graham statement. The purpose of this proceeding was to uncover the identity of those persons violating the publicity order. After a series of hearings at which the then living attorneys involved each denied, under oath, having given the material to the newsman, and at which Farr continued to refuse to answer specific questions as to identity, appellant was adjudged to be in contempt and ordered incarcerated until he divulged the names.

Appellant's brief raises four separately stated constitutional grounds for relief on each of which it is contended the trial judge erroneously ruled. We have determined that only the First Amendment issue involving the construction and effect of the free press provision merits discussion. ¹

Farr contends that, under the facts of this case, he had a right, protected by the First Amendment provision regarding free press, to refuse to disclose to the court the names of the individuals who had furnished him newsworthy information under a promise of confidentiality. In taking that position he concedes, as he must, that the persons, whose identity he protects, were, to his knowledge, forbidden by court order to supply the very information he received. It likewise must be accepted factually that the ostensible purpose of the court order was to protect the right of the Manson defendants to a fair trial, free of prejudicial publicity.

The pertinent language of the First Amendment to the Constitution of the United States provides: "Congress shall make no law(s) . . . abridging the freedom of speech, or of the press; . . .". Until very recent times, it was not seriously thought by most that this provision of the First Amendment gave any personal right to a newspaper reporter to keep confidential his sources of information. Historically, freedom of the press, as guaranteed by the Constitution, meant absence of restraint upon publication usually prior to publication, i. e., censorship. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Garland v. Torre, 259 F.2d 545 (2nd Cir. 1958).

A change has been in the making in more recent times. Several states have enacted legislation aimed at carving out a privilege against disclosure of news sources. The Congress of the United States has flirted with such legislation. More in point, the Supreme Court of the United States has considered the question and appears to have fashioned at least a partial First Amendment shield available to newsmen who are subjected to various demands to divulge the source of confidentially secured information. Branzburg v. Hayes, In re Pappas, and United States v. Caldwell, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), form a trilogy of cases reported together and generally hereafter terminated Branzburg, wherein the Supreme Court faced the question of the right of the grand jury to require disclosure by newsmen. Justice White wrote for four justices and the short concurrence of Justice Powell was needed to obtain a plurality. The Branzburg Court dealt precisely with the First Amendment free press provision as it affected testimony sought to be produced before a grand jury. However, the opinion appears to teach broadly enough to be applied to other civil or criminal judicial proceedings as well. Recent cases have so held. Carey v. Hume, 160 U.S.App.D.C. 365, 492 F.2d 631 (1974), petition for writ of...