408 U.S. 665 (1972)
In November 1969, Paul Branzburg, a staff reporter for the Courier-Journal newspaper in Louisville, Kentucky, published an article describing his observations of two individuals synthesizing hashish from marijuana in Jefferson County.1
The article included a photograph and stated that Branzburg had promised not to reveal the identities of the two.2 He was subsequently subpoenaed by the Jefferson County grand jury and refused to identify the individuals he had observed.3 A state trial court ordered him to answer, and the Kentucky Court of Appeals denied his petition for relief.4
In January 1971, Branzburg published a second article detailing drug use in Frankfort, Kentucky, based on interviews with several dozen users over two weeks.5 He was subpoenaed by the Franklin County grand jury to testify about violations of drug statutes.6 The Court of Appeals denied the requested writs and rejected his First Amendment claim.7 This Court granted certiorari.8
In July 1970, Paul Pappas, a television newsman-photographer, was assigned to cover civil disorders in New Bedford, Massachusetts, involving the Black Panthers.9 He entered Panther headquarters under an agreement not to disclose what he saw or heard inside except for an anticipated police raid, which did not occur.10 Two months later, he was summoned before the Bristol County grand jury but refused to answer questions about his observations inside the headquarters.11 The Massachusetts Supreme Judicial Court held that he must appear and testify.
In February 1970, Earl Caldwell, a New York Times reporter covering the Black Panther Party in San Francisco, received a subpoena to appear before a federal grand jury investigating possible violations of federal law by the group, including threats against the President.12 The District Court denied the motion to quash but issued a protective order. Caldwell refused to appear and was held in contempt.13 The Court of Appeals reversed, recognizing a qualified privilege.14 This Court granted certiorari and consolidated the cases.15
Whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment?16
No. The Court applied this rule to the established facts that Branzburg had observed and written about specific drug crimes in Kentucky.19 Pappas had entered Panther headquarters during civil disorders in Massachusetts.20 Caldwell had written articles about the Black Panthers based on interviews while a federal grand jury investigated threats and other crimes.21 The public interest in law enforcement and effective grand jury proceedings outweighs the incidental burden on news gathering in these instances.22
The press has no constitutional right of special access to information not available to the public generally.23 The First Amendment does not invalidate every incidental burdening of the press that results from enforcement of generally applicable criminal statutes.24
Requiring the reporters to appear and testify does not abridge their First Amendment rights.25
Related opinions on this issue
Justice Powell concurred to emphasize the limited nature of the Court's holding.26 The decision does not leave newsmen without constitutional rights with respect to gathering and disseminating news.27 The Court does not hold that newsmen subpoenaed to testify before a grand jury are without constitutional rights with respect to the gathering and dissemination of news.
Courts remain available to issue protective orders when a grand jury investigation lacks good faith or when the relationship between the testimony sought and the investigation is remote or tenuous.28 If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered.
The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. This approach preserves the traditional method of adjudicating such questions rather than creating an absolute bar.29
Justice Douglas dissented on the ground that the First Amendment affords reporters an absolute privilege against appearing before a grand jury unless the reporter is implicated in crime.30 The Court today holds that a newsman may be required to testify before a grand jury about his confidential sources even though the information was obtained in the course of newsgathering. I dissent.
The First Amendment guarantees freedom of the press. That freedom includes the right to gather news. Without that right, the press cannot function.
The right to gather news necessarily includes the right to protect confidential sources. Without that protection, many sources would dry up. The flow of information to the public would be severely curtailed.
The cases before us involve classic examples of the press performing its function of informing the public about matters of great public concern: drug use among the young, the activities of militant black groups. The public interest in such information is manifest. It is my view that there is no "compelling need" that can be shown which qualifies the reporter's immunity from appearing or testifying before a grand jury, unless the reporter himself is implicated in a crime.
His immunity in my view is therefore quite complete, for, absent his involvement in a crime, the First Amendment protects him against an appearance before a grand jury and if he is involved in a crime, the Fifth Amendment stands as a barrier.
Joined by Justice Brennan, Justice Marshall
Justice Stewart dissented and would have recognized a qualified First Amendment privilege.31 The Court today rejects the claim that the First Amendment affords journalists a constitutional privilege not to disclose their confidential sources to grand juries. I cannot agree.
The free flow of information to the public is one of the most important values protected by the First Amendment. That flow depends in large measure on the ability of journalists to promise confidentiality to their sources. The majority's holding will have a chilling effect on newsgathering.
Sources will be unwilling to speak if they know their identities may be revealed. The Government has not shown that the incremental benefit to law enforcement from forcing reporters to testify outweighs the substantial harm to First Amendment values. When a reporter is asked to appear before a grand jury and reveal confidences, I would hold that the government must (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.
The government failed to meet this burden in the cases before the Court.
Whether the First Amendment affords newsmen a privilege to refuse to appear before a grand jury or to refuse to answer questions about information obtained in confidence from sources?32
No. The Court applied this rule to the established facts that Branzburg refused to identify individuals he personally observed committing drug felonies.36 Pappas refused to describe events inside Panther headquarters during civil disorders.37 Caldwell refused to appear at all despite a protective order.38 The Court held that the preference for anonymity of sources involved in or possessing information about criminal conduct is not absolute.39 It does not override the public interest in effective grand jury proceedings.40
The First Amendment does not afford newsmen any such privilege.41
Related opinions on this issue
Justice Powell's concurrence underscored that the holding is narrow.42 The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering and dissemination of news. The Court holds only that a newsman may not invoke the First Amendment to refuse to answer questions put to him in good faith by a grand jury conducting an authorized investigation.
The Court does not hold that a newsman is never entitled to protect his sources. The Court holds only that the First Amendment does not create a constitutional privilege with respect to the use of confidential sources in the context of a grand jury investigation. In short, the Court is not holding that the press is without constitutional protection in this area.
It is holding only that the First Amendment does not create an absolute privilege. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered.
The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.
Justice Douglas dissented on the ground that the First Amendment protects the right to gather news, which necessarily includes the right to protect confidential sources.4344 The Court today holds that a newsman may be required to testify before a grand jury about his confidential sources even though the information was obtained in the course of newsgathering. I dissent.
The First Amendment guarantees freedom of the press. That freedom includes the right to gather news. Without that right, the press cannot function.
The right to gather news necessarily includes the right to protect confidential sources. Without that protection, many sources would dry up. The flow of information to the public would be severely curtailed.
The cases before us involve classic examples of the press performing its function of informing the public about matters of great public concern: drug use among the young, the activities of militant black groups. The public interest in such information is manifest. It is my view that there is no "compelling need" that can be shown which qualifies the reporter's immunity from appearing or testifying before a grand jury, unless the reporter himself is implicated in a crime.
His immunity in my view is therefore quite complete, for, absent his involvement in a crime, the First Amendment protects him against an appearance before a grand jury and if he is involved in a crime, the Fifth Amendment stands as a barrier.
Joined by Justice Brennan, Justice Marshall
Justice Stewart dissented and would have required the government to satisfy a three-part test of relevance, necessity, and compelling need before compelling disclosure of confidential information.45 The Court today rejects the claim that the First Amendment affords journalists a constitutional privilege not to disclose their confidential sources to grand juries. I cannot agree.
The free flow of information to the public is one of the most important values protected by the First Amendment. That flow depends in large measure on the ability of journalists to promise confidentiality to their sources. The majority's holding will have a chilling effect on newsgathering.
Sources will be unwilling to speak if they know their identities may be revealed. The Government has not shown that the incremental benefit to law enforcement from forcing reporters to testify outweighs the substantial harm to First Amendment values. When a reporter is asked to appear before a grand jury and reveal confidences, I would hold that the government must (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.
Whether a newsman's agreement to conceal the criminal conduct of his source receives First Amendment protection?46
No. The Court applied this rule to the established facts that Branzburg had promised confidentiality to individuals he observed manufacturing hashish, a felony under Kentucky law.50 The other reporters similarly sought to withhold observations of activities under grand jury investigation.51 The Court held that concealment of crime and agreements to do so receive no constitutional protection.52 The duty of every citizen to furnish relevant evidence to a grand jury applies equally to reporters.53
A newsman's agreement to conceal criminal conduct receives no First Amendment protection.54