Branzburg v. Hayes: Unveiling Implications

Fall 2019

Introduction

When looking at the body of case law regarding the use of sources, the landmark decision that is often referenced is the 1972 case of Branzburg v Hayes. Despite setting a standard and precedent for future lawsuits, there is some disagreement among courts and justices about the application of the Supreme Court’s ruling in this case. Sometimes it is used in the narrow sense of the context of grand juries and in other instances it is used broadly to restrict what reporters can and cannot do and report on. In the smaller cases leading up to Branzburg, grand juries sought information from three reporters about the identities of their sources. The three reporters in question each refused to appear or answer the court (McInnis). Questions as to what is the proper interpretation of the somewhat opaque opinions in Branzburg remain as various authors in law journals of repute stake their opinions on either side of the divide.

There is still much confusion about what the Branzburg ruling actually means and how courts should apply it to current cases. Applying concepts from John Rawls’ Veil of Ignorance may shed light on the interests of the three main parties who have a stake in this debate over disclosure of sources: the reporters, the courts/government/grand jury, and the confidential sources themselves. In this paper, I will be arguing for a qualified privilege for reporters that requires that discretion occur on the part of the courts and government.

What is Reporters’ Privilege?

Reporters’ privilege has both supporters and opponents. There is a tension between the great positives that anonymous whistleblowers afford and the dangers and risks it creates for the pursuit of justice in the court system. In the context of Branzburg, it is important to note that the privilege that reporters ask for is a qualified privilege. “Reporters generally do not argue for an absolute privilege” (The Yale Law Journal 1205). Defendants of reporters’ privilege have contended that “newspapers have a community obligation to expose waste and corruption which may be difficult to fulfill unless informants can be assured anonymity (Stanford Law Review 542). Depending on one’s perspective, a qualified privilege may be too much or not enough.

Anonymity for sources and informants comes with drawbacks that one may not consider initially. “Assurance of anonymity may encourage an informant to communicate information to newsmen which should be conveyed directly to the police or other public agencies which may be unable to protect his identity (Stanford Law Review 542). This can be a hinderance when wrongdoing that has occurred needs to be addressed through these kinds of channels. Another issue arises when anonymous sources disclose false information without any fear of consequences. Opponents of reporter’s privilege may hold the view that “to allow journalists an immunity not given to the general public would place them in a special class under the Constitution” (Stanford Law Review 545). Additionally, some scholars who have considered this concept believe that there is “an absence of evidence that the enforcement of the testimonial duty will cut down the flow of news” (Stanford Law Review 545). This remains to be seen.

History/Background of the Case

The ruling of Branzburg v. Hayes is actually in response to three cases that each deal with confidential sources and newsgathering. The first case involved a reporter for the Louisville Journal-Courier named Paul Branzburg who uncovered information about drug manufacture and trade in Kentucky in the 1960s (Kelly 205). Law enforcement wanted Branzburg to reveal his sources as they investigated the drug activity. Branzburg refused to testify, even when subpoenaed to appear in court before a grand jury. The Commissioner in Branzburg v Pound wrote “The harm which ultimately might result to society from letting the reporter maintain his silence as to the identity of those seen by him in the commission of the crime in the instant case might not be earth-shaking but we must consider where such a course could lead us” (Court of Appeals of Kentucky). Chief Justice Edward P. Hill Jr. dissented in this case writing, “However, I am unable to find any authority from any state refusing to give such privilege a broad interpretation when a statute has been enacted by the legislature of such state safeguarding that privilege” (Court of Appeals of Kentucky). Even though the initial circumstances were with small concerns, this case pointed to the larger issue at hand – to come to an official decision from the highest court.

The second case included in the Branzburg ruling was about Earl Caldwell, a New York Times reporter, who refused to disclose the notes and tape recordings of his interviews with the Black Panther Party (McInnis). The third case followed the investigation related to television reporter Paul Pappas information he gathered about the Black Panthers after spending some hours at their headquarters (Calvert et al. 396). Justice Cutter of the Massachusetts Supreme Court wrote in In the Matter of Paul Pappas, “We regard the report as having submitted for our determination the correctness of the presiding judge's rulings on the motion to quash [Pappa’s subpoena]” (Massachusetts Supreme Court). The key uniting factor for Branzburg, Caldwell, and Pappas was that each one had promised their sources anonymity and feared that disclosing this information held in confidence would hinder or impair their ability to participate in effective newsgathering (McInnis). These three cases were addressed together in the Branzburg v. Hayes ruling due to the reporters’ similar actions and stances. These three cases over the course of only a couple years prompted a response from the US Supreme Court on the matter.

Despite the controversy surrounding the Branzburg case, the press has benefited from being specifically named in the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The press is the only private, commercial group mentioned in this amendment. “The press has, to a greater or lesser degree, enjoyed a privileged status among professions since the nation’s founding through its inclusion in the First Amendment (Kelly 202). This status does not have solid footing in the eyes of the courts, however, due to rulings like that of Branzburg v. Hayes.

Some historical precedent for the ruling in Branzburg comes from Attorney-General v. Mulholland, a 1963 British case on the subject, in which the Queen’s Bench stated: “The judge will respect the confidences which each member of these honourable professions [clergyman, bankers, doctors] receives in the course of it, and will not direct him to answer unless not only it is relevant but also it is a proper and, indeed, necessary question in the course of justice to be put and answered”(Kelly 207). The Justices consulted this case when considering the case of Branzburg. This understanding of a balanced/measured approach based on the need for justice can be found in the similar position taken by Justice Powell in his somewhat baffling concurrence to the majority.

The Ruling and Opinions

The ruling of the Court in Branzburg is considered by some scholars to be one of the most controversial to come out of Warren Burger’s Court. The Supreme Court reshuffled in October 1971 when two justices, Hugo Black and John Harlan, left (Kelly 214). Black was a huge supporter of the press and went to great lengths to protect speech. In the Pentagon Papers case, Black wrote “The Government’s power to censure the press was abolished so that the press would remain forever free to censure the Government” (Kelly 217). With Black’s departure, Justice White stepped into the gap.

Of the nine Supreme Court justices who were on the bench in 1972, four of them sided with the majority opinion (Justices Burger, Blackmun, Rehnquist, and White who wrote the majority opinion), four dissented (Justices Douglas, Stewart, Brennan, and Marshall), and one concurred with the majority in an opaque manner that has caused much discussion and debate (Justice Powell). Writing in the opinion, Justice White wrote, “Although the newsmen in these cases do not claim an absolute privilege against official interrogation in all circumstances, they assert that the reporter should not be forced either to appear or to testify before a grand jury or at trial until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to a crime the grand jury is investigating” (Supreme Court). The majority opinion held that no constitutional privilege exists for reporters, either absolute or qualified (Kelly 204). “What [Branzburg] seems to amount to, for me, is an all out attack on the grand jury system,” wrote Justice Blackmun in his personal notes regarding the case (Kelly 206).

There are a couple limitations of the majority opinion that have been highlighted by authors for the Journal of Criminal Law and Criminology. Firstly, Justice White’s qualification that grand jury investigations must be in “good faith” is not a strong enough safeguard against unjust treatment of reporters (Sytsma, Curt L., et al. 220). The potential for abuse is especially high in cases where the judiciary is seeking the executive branch’s best interest. “Thus, one proponent of a federal statutory newsman’s privilege insists that so long as ‘the Government possesses the right to subpoena reporters to compel disclosure of confidential information, it possesses the power to harass and intimidate the press’” (Sytsma, Curt L., et al. 220).

Second, another possible flaw with White’s opinion is that grand jury questioning of reporters is purported to occur only when it is relevant to the immediate investigation. Restraint is needed to keep this principle in practice, especially when “relevance” is not clearly defined. “If the rules are ‘twisted into instruments for coercing the press into the role of government agents,’ public trust in the news media will be materially undermined” (Sytsma, Curt L., et al. 221). This would make the job of the free press much harder if the audience did not believe the intentions behind the press’s newsgathering practices. Also, the independence of the press would be put in great danger if it was reduced to the “investigative arm” of the government (Sytsma, Curt L., et al. 221).

The concurring opinion was not entirely in support of the hard line drawn by the majority. “Although he joined the majority in rejecting a constitutional privilege, Powell did so only assuming a base level of judicial and prosecutorial discretion. He suggested a balancing test for an evidentiary privilege in his dissent (Kelly 208).

The dissenting opinions in Branzburg suggested that reporters should have to testify before grand juries only “when the government shows a compelling interest in the testimony (McInnis). In this view, the burden of proof lies on the government prosecutors to do their due diligence to act wisely. “Justice Potter Steward authored the dissent in Branzburg, finding a constitutional privilege for reporters and excoriating ‘[t]he Court’s crabbed view of the First Amendment’” (Kelly 211).

Responses and interpretations of these opinions has been far from uniform. “Some courts and commentators, moreover, have concluded that Branzburg was a five to four victory for the press, with Justice Powell’s concurrence plus the four dissenters actually creating a qualified reporter’s privilege- the exact holding Justice White’s opinion rejected (West 1952). One cannot help but marvel at the wildly different conclusions that have come out of the facts of this case.

According to Sonja West writing for the Michigan Law Review, “Justice Powell’s concurrence advocated a case-by-case balancing approach and thus left an opening for a constitutionally based privilege” (1951). Adam Liptak, writing for the New York Times, comments that although many press lawyers over the years have used Branzburg to their advantage in lower courts – this has not gone unnoticed (Liptak). Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit wrote in 2003, “A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege.” Given its unique status as a disputed ruling, Branzburg remains relevant to all concerned with media law today.

Implications of Branzburg

While some justices and historians believe that there is still room for interpretation of Branzburg, others see it as a plain answer that there is not a constitutional allowance for reporters to have any special privilege that would distinguish them from any other citizen. One particular area of focus has been Powell’s opinion. “From the moment it appeared, Powell’s opinion has been treated as everything from the controlling opinion to a side note akin to dictum” (Kelly 208).

As Judge Sentelle wrote for the Circuit Court of Appeals for the District of Columbia, “The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter” (West 1951). The majority opinion very much hinged their conclusion of their analysis of the situation by putting a great deal of weight and trust in the discretion of judges and prosecutors to investigate in good faith and not abuse their power beyond reasonable limits (Kelly 204). This strong assumption has been brought on board by some later courts and rejected by others. Burger, who lead the Court at the time, assumed that prosecutors would use considerable discretion in seeking subpoenas and that judges would do likewise when upholding them (Kelly 214).

Confusion regarding how Powell’s concurring opinion should be read comes down to some specifics regarding the wording. The opinion opens with the words: “Mr. Justice Powell, concurring.” Scholar Sonja West investigates this wording closely in the article title, “Concurring in Part & Concurring in the Confusion.” According to West, “if the comma had been followed by one of the other phrases in the justices’ handbag, such as ‘concurring in part,’ ‘concurring in the judgment’, ‘concurring in the result’ or some combination thereof, then the panel would have viewed Branzburg quite differently (1953). In some ways, perhaps the majority opinion in this case should not be considered the true majority as not all five justices who concurred, concurred fully with it. Therefore, Powell’s opinion should not be considered in the majority opinion against reporters’ privilege.

Newsgathering, the First Amendment, and the Use of Anonymous Sources

One must consider that the act of pure expression and the act of newsgathering are separate and are seen as individual items that deserved different levels of protection, according to some interpretations of the Constitution. “Only a few cases have touched upon the first amendment’s protection of news gathering, as distinct from publication itself (Stanford Law Review 543). Some judicial opinions have qualified the First Amendment to protect the freedom of expression rather than newsgathering. One may consider, however, that to limit and curtail the ability for a journalist or reporter to gather the information they might need to write a story in the process of newsgathering in effect limits freedom of expression.

Within the case of Branzburg, the requirements of newsgathering were mentioned and asserted. “The reporters, however, asserted that First Amendment protection of the press includes the right to gather news and that as part of that right the press can refuse to disclose its sources (The Yale Law Journal 1205). The discourse in Branzburg elevated the act of newsgathering to something that is to be protected.

The Rights of Sources

An important party in this debate over the disclosure of confidential sources is that of the sources themselves. “In Branzburg the Court … declared that the interest of the grand jury in considering all information relating to possible wrongdoing prevailed over the interests of the reporters” (The Yale Law Journal 1203). Justice White’s majority opinion said the privilege claimed was for the reporter, not the source (The Yale Law Journal 1207). The Court did not clearly address the effects on the source disclosure of identity in a court case would cause. For example, revealing the identity of the source could incriminate the source, break the sources’ trust of the reporter, and limit what gets reported and brought out into the light of day. These rights for sources include the right to anonymous speech and a right to engage in confidential association (The Yale Law Journal 1208). Firstly, in the case of Talley v. California, the Supreme Court ruled that the ordinance to require the author’s name on all handbills of opinion would constitute a direct restraint on expression and First Amendment activity out of the people’s fear of identification and reprisal (The Yale Law Journal 1209). Revealing one’s identity has great potential to limit one’s free expression of ideas. Secondly, in a series of cases during the 1950s and 1960s, including Bates v. City of Little Rock, the Court “recognized that the Constitution protects citizens’ right to join in confidential associations” (The Yale Law Journal 1209).

Modern issues of Confidentiality and Looking to the Future

The Branzburg issue was initially seen as a strong rebuke against the actions of the press and there is still uncertainty for how Branzburg will be viewed in our modern context. “There is a particular minefield for reporters in the federal-state divide. Reporters covering a breaking story often pay little heed to the potential jurisdictional turns as case may take down the line” (Kelly 222). As law evolves in the context of our society, concerns for privacy, confidentiality, and the place of the press in all of it will surely increase.

In the modern Internet age, there is little to no privacy left to be found for anyone. This makes a promise of anonymity very hard to keep. The common citizen in a developed country has a smartphone in their pocket that can photograph, record video and audio, and communicate to the wider Internet community with an alarming sense of immediacy. More modern cases such as Carey v. Hume and Zerilli v. Smith take their cue from Branzburg in standing against special treatment of reporters.

Application of John Rawls’ Veil of Ignorance

When investigating the various parties involved with the Branzburg ruling, John Rawls’ Veil of Ignorance came to mind. A subset of the Golden Rule, this ethical model asks the decisionmaker in the situation to consider how various parties would react in the situation and what the consequences of the action would be for them. Specifically, this rule “suppresses self-interested behavior on the part of decisionmakers; it does so by subjecting the decisionmakers to uncertainty about the distribution of benefits and burdens that will result from the decision” (Vermeule 399). This thought experiment has been re-envisioned and challenged many times by various academics, but it still stands as a helpful school of ethical thought.

Many stakeholders should be considered when examining Branzburg v. Hayes through Rawls’ model including the litigants, the justice system, the journalist, the source, and society as a whole. Each group has certain goods and goals they wish to claim.

The litigants in any lawsuit are either trying to win or defend themselves. They would claim the right to a fair trial and point to conditions in the Sixth Amendment to the Constitution about the right to know who their accusers are and the nature of the charges and evidence against them. For litigants, revealing the identity of the reporter’s source would respect their constitutionally guaranteed rights and possibly help them as they navigate the lawsuit. Therefore, the litigants would probably be opposed to reporters’ privilege.

For the justice system, the main goal is to see justice served and determine the truth. It is quite difficult to ascertain the particulars of a case without knowing all the information, including the identities of the connected parties. Additionally, members of the justice system would probably hold that standing in the way of justice is worse than having one’s identity revealed against one’s wishes. The justice system, as seen in the majority opinion, recognizes the problems that can arise out of the use of anonymous sources and holds getting the truth as more important. “[The immunity given to journalists as part of reporters’ privilege] would be especially unwarranted in the absence of evidence that the enforcement of the testimonial duty will cut down the flow of news” (Stanford Law Review 545). The Branzburg ruling demonstrated how the justice system, although still not of one mind, does not recognize reporters’ privilege.

The journalist’s primary concern is to gather news and exercise their full freedom of expression given to them under the First Amendment. They would claim the right to free speech and the right of freedom of the press. Revealing information given to them in confidence would hinder their work and limit what stories they could cover. Although truth-telling is important to all media professionals, the journalists in particular have many ethical considerations to honor when it comes to telling newsworthy stories that expose corruption and wrongdoing. When considering the rights and wants of the journalist, one might wonder “how would the reporter feel about breaking the confidence entrusted to them by the anonymous source?” The media would claim their right to do their job to the best of their ability while respecting the privacy of their interview subjects. Anonymous sources are useful to journalists as without them, the news would be less accurate and reliable. “Reporters are no better than their sources of information. Without good and reliable sources, ‘the real news simply dries up, and the whole truth steadily recedes behind a wall of image-mongering, denial and even outright lies’” (Goldfarb 183).

Perhaps the party with the most to lose in this thought experiment is the source itself. The source is the most vulnerable member of this situation, for as soon as they disclose their secret information - they become subject to whatever the journalist does with the information. One such question to consider would be “what would the informant feel/how would they react if their identity was revealed by the reporter under a subpoena issued by the court?” One may guess that the informant would not be pleased and may in fact suffer repercussions and personal damage if revealed. Depending on what kind of whistleblowing the source is participating in, there could be a range of consequences: from losing one’s job to the threat of physical bodily harm.

Lastly, it would appropriate to consider the rights and claims of the society as a whole. On one hand, the public deserves to know critical information that serves the public interest in order to prevent harm. On the other hand, American culture and society often looks down upon the media as corrupted and those journalists as one who would break promises while newsgathering. If the media becomes the arm of the government, then society loses its “watchdog” and may suffer consequences at the hands of the government as a result.

While telling the truth is of paramount importance, how should one balance the pursuit of justice with the needs and respect for the interests of the source? The Veil of Ignorance is not reflected in the Supreme Court’s ruling in Branzburg v. Hayes because the decisionmakers on the Court did not act with the more vulnerable parties in mind. If no reporters’ privilege was granted at all then the press would not be able to perform their role as one of the key checks on the government (Goldfarb 178). The Supreme Court ruling in this case reflected a more Utilitarian view in that it served the needs of the majority (litigants and justice system) rather than one that honored the smaller parties as outlined above in John Rawls’ Veil of Ignorance.

Conclusions/Personal Opinions

Given the body of scholarly work regarding the Branzburg ruling, I believe that a qualified reporters’ privilege would be in the best interest of all concerned: the reporter, the source, and the government. My approach to considering Branzburg would probably fall under the school of thought known as Aristotle’s Golden Mean. While anonymity should not stand in the way of justice with a complete and unchecked reporter’s privilege, neither should the government have the ability to wantonly abuse the freedom of the press which is guaranteed in the First Amendment. No reporters’ privilege at all in any case has the potential for more harm than good when it comes to the press acting in its crucial role as the “watchdog” of the government. Seeking to reflect Justice Powell’s concurrence on the federal level would allow for the act of newsgathering, either anonymous or not, to occupy its proper place in the free press that exists in the United States.

Works Cited

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Court of Appeals of Kentucky. “BRANZBURG v. POUND: 461 S.W.2d 345 (1970).” Leagle,

Court of Appeals of Kentucky, www.leagle.com/decision/1970806461sw2d3451792.

Goldfarb, Ronald. “JOURNALISTS: THE REACH OF THE FIRST AMENDMENT AND THE VALUE OF THE ANONYMOUS SOURCE.” In Confidence: When to Protect Secrecy and When to Require Disclosure, edited by Ronald Goldfarb, Yale University Press, 2009, pp. 177–202.

Kelly, Sean W. “Black and White and Read All over: Press Protection after ‘Branzburg.’” Duke Law Journal, vol. 57, no. 1, Oct. 2007, pp. 199–230. JSTOR, www.jstor.org/stable/40040591.

Liptak, Adam. “A Justice’s Scribbles on Journalists’ Rights.” The New York Times, 7 Oct. 2007, p. 44, www.nytimes.com/2007/10/07/weekinreview/07liptak.html.

Massachusetts Supreme Court. “IN THE MATTER OF PAUL PAPPAS.” Justia Law, Justia US Law, law.justia.com/cases/massachusetts/supreme-court/volumes/358/358mass604.html.

McInnis, Tom. “Branzburg v. Hayes (1972).” The First Amendment Encylopedia, Middle Tennessee State University, www.mtsu.edu/first-amendment/article/740/branzburg-v-hayes.

“The Rights of Sources. The Critical Element in the Clash over Reporter's Privilege.” The Yale Law Journal, vol. 88, May 1979, pp. 1202–1217.

Supreme Court. Branzburg v Hayes. 29 June 1979. Legal Information Institute, www.law.cornell.edu/supremecourt/text/408/665#writing-USSC_CR_0408_0665_ZD1.

Sytsma, Curt L., et al. “THE NEWSMAN'S PRIVILEGE AFTER BRANZBURG V. HAYES: WHITHER NOW?” Journal of Criminal Law & Criminology, vol. 64, no. 2, June 1973, pp. 218–239.

Vermeule, Adrian. “Veil of Ignorance Rules in Constitutional Law.” Yale Law Journal, vol. 111, no. 2, 1 Nov. 2001, p. 399+.

West, Sonja R. “Concurring in Part & Concurring in the Confusion.” Michigan Law Review, vol. 104, Aug. 2006, pp. 1951–1960.