Branzburg v. Hayes
1972 U.S. Lexis 132
“Together with 70-94, In re Pappas, on certiorari to the Supreme Judicial Court of Massachusetts, also
argued February 23, 1972, and No. 70-57, United States v. Caldwell, on certiorari to the United States
Court of Appeals for the Ninth Circuit, argued February 22, 1972.”
VOTE: 5-4
OPINIONS: Justice White wrote the majority opinion. Justice Powell concurred with the Court’s opinion;
Justice Powell wrote a separate opinion that stated the limited nature of the case. Justice Douglas wrote
dissenting opinion; he wrote that a newsman has an absolute right not to appear before a grand jury. Justice
Stewart wrote dissenting opinion and was joined by Justices Brennan and Marshall. Justice Stewart
dissented on the grounds that before a newsman reveals confidences, the information must be proven to be
relevant for the case.
FACTS: Three separate cases all decided under Branzburg v. Hayes
Branzburg was a Kentucky paper’s staff reporter and he took photos of someone who was working
with the illegal substance, hashish. When he was asked to present the names of the persons in the
photography, he refused to do so. He claimed the First Amendment protected the right to confidentiality.
Paul Pappas was a television news personality in Massachusetts. He was allowed access to a
barricaded location to cover a news conference given by the Black Panthers. Though he expected a police
raid, when that did not occur he did not run the story. Several months later he was asked to give details
about the Black Panthers, he refused claiming First Amendment rights that protected confidential sources.
Earl Caldwell was an African American reporter for the New York Times who refused to give
notes and recordings he had gained from interviewing members of the Black Panther party. He was
subpoenaed for information and called to testify against the Black Panther party in court. He claimed that
the government had no compelling interest in his court appearance.
In all three cases the gentleman were subpoenaed and refused to willingly supply information to a
grand jury.
DECISION: The Court upheld the lower court rulings in Branzburg and In re Pappas, and reversed the
lower court decision in the Caldwell case. The majority of the Court said that reporters must comply with
grand jury subpoenas.
RATIONALE: The U.S. Supreme Court ruled that reporters were obligated to surrender to the subpoenas
of a grand jury just as other citizens do. Reporters are also obligated to answer questions related to an
investigation.
Though Justice Powell concurred with the opinion he stated that in some cases if a reporter is
made to reveal confidential sources, it could be in violation of First Amendment rights. He stated that there
should be a balance and that depending on the case, a constitutional shield should be in place for reporters.
Justice Stewart dissented and said that a reporter should only have to reveal sources if the
government could prove: probable cause to believe that there is clearly relevant information in violation of
a law, if the information could not be obtained in any other way, and there should be a compelling and
overriding interest in the information.
IMPORTANCE: Although the three-part test to assessing information was put in the dissenting opinion,
many lower courts use this test in accessing journalist’s privilege cases.
This case did give journalists at least a limited right to withhold information that is confidential.
Many lower courts use a balancing approach to ruling on journalist’s confidentiality and look to
Branzburg’s dissenting opinion as a guideline.