Branzburg v. Hayes, 408 U.S. 665 (1972)

In Branzburg, the Supreme Court confronted an issue of continuing controversy: May journalists who are called to testify before grand juries protect the identities of their confidential sources? Branzburg is the only case to date in which the Court has squarely addressed whether the First Amendment provides a ‘‘reporter’s privilege.’’

The case involved a reporter from the Louisville Courier-Journal who had published stories about illegal drug activity, as well as journalists from the New York Times and a Massachusetts television station who had reported on the Black Panthers. All had been called before grand juries and asked to reveal confidential information about what they had seen or heard during their reporting.

Advocates for the reporter’s privilege argue that it is grounded in the historic role of the press in holding government officials accountable and keeping citizens informed on matters of public concern. The First Amendment protects the freedom to publish and broadcast the news, but this freedom means little, advocates note, without constitutional protections for the freedom to gather the news.

In Branzburg, the Supreme Court held that the First Amendment did not provide a journalist’s privilege. A plurality of four justices declined to erect what they called ‘‘a virtually impenetrable constitutional shield, beyond legislative or judicial control’’ by giving journalists a privilege not enjoyed by most other citizens. The Court’s holding was limited to times when a news source is implicated in a crime or possesses information relevant to a grand jury’s work. Justice Byron White emphasized that the decision should not threaten ‘‘the vast bulk of confidential relationships between reporters and their sources.’’

Justice Lewis Powell, who provided the crucial fifth vote in Branzburg, wrote separately to emphasize what he saw as limited scope of the Court’s holding. In an important concurring opinion, Powell said that courts should balance on a case-by-case basis the rights and needs of journalists with the traditional obligation of all citizens to testify about criminal conduct. When subpoenas threaten to improperly impair the news-gathering process, Powell said, ‘‘the courts will be available to [journalists] under circumstances where legitimate First Amendment interests require protection.’’ In dissent, Justice Potter Stewart said a reporter’s constitutional right to a confidential relationship with a source stems from the broad social interest in the free flow of information. Thus, he said, the Constitution protects journalistic freedom ‘‘not for the benefit of the press so much as for the benefit of all of us.’’

In the years since Branzburg, more than half of the states have enacted statutes providing some limited form of a reporter’s privilege. But there is no such federal law, and federal courts asked to shield journalists from testifying have continued to invoke Branzburg and hold that a reporter’s privilege cannot be inferred out of the First Amendment. In a famous case in 2005, a judge jailed a New York Times reporter who refused to testify in an investigation concerning the leak of a CIA officer’s identity by members of the George W. Bush administration.

STEVE SANDERS

References and Further Reading

• Pracene, Ulan C., ed. Journalists, Shield Laws and the First Amendment. New York: Novinka Books, 2005.