Branzburg v. Hayes 1972

Petitioner: Paul M. Branzburg.

Respondents: Judge John P. Hayes, et al.

Petitioner's Claim: That the First Amendment gives news reporters a privilege protecting the confidentiality of their sources of information.

Chief Lawyer for Petitioner: Edgar A. Zingman

Chief Lawyer for Respondents: Edwin A. Schroering, Jr.

Justices for the Court: Harry A. Blackmun, Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, Byron R. White

Justices Dissenting: William J. Brennan, Jr., William O. Douglas, Thurgood Marshall, Potter Stewart

Date of Decision: June 29, 1972

Decision: The First Amendment does not give news reporters a privilege to keep their sources secret from the government.

Significance: News reporters must share information about criminal activity with grand jury investigations just like every other citizen.

Protecting his informants

Paul Branzburg was a reporter for a Kentucky newspaper called the Louisville Courier-Journal. In 1969 the newspaper printed an article by Branzburg describing two people making hashish from marijuana; both are illegal drugs. In the article Branzburg said he promised the two people he would not reveal their identities.

In 1971 the newspaper printed another article by Branzburg on use of illegal drugs. He wrote the second article after spending two weeks watching and interviewing dozens of drug users in Frankfort, Kentucky. Again Branzburg promised not to reveal the identities of the drug users.

On both occasions Branzburg was called to testify before a Kentucky grand jury. (A grand jury is a group of people who review evidence presented by the state to determine if it has enough evidence to charge someone with a crime.) Branzburg refused to reveal the identities of the people he had interviewed. He said the First Amend-ment gave him a privilege, or right, to keep his sources confidential, meaning secret. Branzburg said that without the privilege, sources would not talk to him for fear they would be drawn into a grand jury investigation. If sources stopped talking to him, he would not be able to report the news. Branzburg said that would violate the First Amendment's guarantee of freedom of the press.

In both instances a state judge disagreed with Branzburg and ordered him to answer the grand jury's questions. Branzburg appealed to the Kentucky Court of Appeals, which denied his requests for protection. Branzburg then appealed to the U.S. Supreme Court. The Supreme Court agreed to consider his case along with two other cases. The other cases involved journalists who refused to testify before grand juries about their investigation and interviews of the Black Panther Party, a radical group that wanted to overthrow the federal government.

Journalists are citizens too

The Supreme Court voted 5–4 against a reporter's privilege. Writing for the Court, Justice Byron R. White analyzed the importance of grand jury investigations and the freedom of the press.

Justice White said that under the U.S. Constitution, grand juries play the important role of reviewing evidence to determine if there is enough to charge someone with a crime. Grand juries cannot do this job properly unless they review all available evidence. Every citizen has a duty to share any evidence he or she has with the grand jury. Justice White said journalists are citizens too, so they do not deserve a special privilege. He supported this decision by referring to prior Supreme Court cases that decided the press must obey labor, business, and tax laws as well.

Justice White agreed that the freedom of the press is important. The First Amendment protects the press by saying, "Congress shall make no law . . . abridging the freedom . . . of the press." States must recognize this freedom under the Due Process Clause of the Fourteenth Amendment. Justice White said, however, that the main reason for the freedom of the press is to prevent government from controlling what is published. He said requiring news reporters to testify before grand juries does not stop them from printing their stories.

Justice White rejected the argument that journalists would not be able to investigate the news without a privilege to keep sources secret. Justice White said the press had operated successfully in the United States without such a privilege for almost 200 years.

Freedom no more?

Four justices dissented, meaning they disagreed with the Court's decision. Justice Potter Stewart wrote an opinion for himself and Justices William J. Brennan, Jr., and Thurgood Marshall. Justice Stewart said the Supreme Court's decision ignored evidence that journalists would lose confidential sources without a privilege. Losing sources would make it harder to report the news. Stewart said this infringes on the freedom of the press.

In Stewart's opinion, the government should be allowed to force journalists to testify before grand juries only when it can show three things: (1) that the reporter probably has information about an actual crime; (2) that the government cannot get the information from anywhere else; and (3) that the government's need for the information is more important than the freedom of the press.

Justice William O. Douglas also wrote a dissenting opinion. Unlike Stewart, Douglas did not think journalists could ever be forced to testify before a grand jury. Douglas said the press does the important job of keeping U.S. citizens informed about public issues. Without a privilege, the press would stop being a government watchdog. Eventually it would be controlled by the government, reporting only the news the government wanted it to report.

REVEALING SOURCES

I n Branzburg the media fought for the right to keep its sources secret. In Cohen v. Cowles Media Co., it fought for the right to reveal its sources. Dan Cohen was the public relations director for a candidate for Minnesota governor in 1982. Cohen gave two Minnesota newspapers, the Pioneer Press and the Star Tribune, incomplete information about the opposing candidate. Although the newspapers promised to keep Cohen's name secret, they ended up printing his name as the source of the information. Cohen lost his job over the incident.

Cohen sued the Minnesota newspapers for fraud and breach of contract. The newspapers tried to get the case thrown out of court. They said the First Amendment guarantee of freedom of the press protected their right to print Cohen's name. The U.S. Supreme Court ruled in favor of Cohen, saying the media can be sued for breaking promises to keep sources secret.

Suggestions for further reading

Evans, J. Edward. Freedom of the Press. Minneapolis, MN: Lerner Publications Company, 1990.

Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.

Goldman, David J. The Freedom of the Press in America. Minneapolis, MN: Lerner Publications Company, 1967.

Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Mikula, Mark, and L. Mpho Mabunda, eds. Great American Court Cases: Vol. I, Individual Liberties. Detroit, MI: Gale Group, 1999.

Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.

Schwartz, Bernard. Freedom of the Press. New York, NY: Facts on File, 1992.

Steins, Richard. Censorship: How Does It Conflict with Freedom? New York, NY: Twenty-First Century Books, 1995.

Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside, NJ: Enslow Publishers, Inc., 1995.

Zerman, Melvyn B. Taking on the Press: Constitutional Rights in Conflict. New York, NY: Crowell, 1986.