Subpoenas to Reporters

‘‘It is axiomatic, and a principle fundamental to our constitutional way of life, that where the press remains free so too will a people remain free’’ Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972).

Although there are currently forty-nine states and the District of Columbia that recognize some type of privilege in which journalists are protected from disclosing information they receive, there is no explicit protection for reporters under federal law. The United States Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972), declined to quash grand jury subpoenas issued to journalists with a ruling that a reporter does not have a First Amendment protection to refuse a grand jury subpoena in an investigation.

However, the Court did state that Congress and states were free within First Amendment limits to determine whether a newsman’s privilege is necessary. Subsequently courts in almost every jurisdiction around the country interpreted the Courts’ opinion in establishing a Balancing Test in the protection of a free press under the First Amendment. As governmental policy has evolved since Branzburg, the guidance regarding the issuance of subpoenas to members of the news media, for telephone records of the news media, or the indictment or arrest of members of the news media are now set forth in section 50.10 of title 28 of the Code of Federal Regulations.

ROBERT DON GIFFORD

References and Further Reading

• United States Attorney’s Manual, Section 9-11.255—Grand Jury Subpoenas to Lawyers and Members of the News Media.

Cases and Statutes Cited

• 28 C.F.R. } 50.10
• Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972)
• Branzburg v. Hayes, 408 U.S. 665 (1972)