Branzburg v. Hayes

Brief Fact Summary. The Petitioner, Branzburg (Petitioner), a newsman, alleges he has a First Amendment constitutional right to refuse to disclose in front of a grand jury, information he received from confidential sources.

Synopsis of Rule of Law. Newsmen do not have a First Amendment constitutional right to refuse to testify in front of grand juries regarding confidential information they received in the course of their news collection.

Facts. The Petitioner published several articles describing unlawful drug activities. He refused, on First Amendment constitutional grounds, to disclose to a state grand jury the identities of persons whose activities he described. The Petitioner claims that in the gathering of news, it is often necessary for reporters to agree not to identify their sources. Also, if the reporter is forced by a grand jury to reveal these confidences, then their sources will often refuse to disclose publishable news, all to the detriment of the free flow of information protected by the First Amendment of the United States Constitution (Constitution). The heart of the Petitioner’s claim is that the burden on newsgathering resulting from compelling reporters to disclose confidential information, outweighs public interest in obtaining the information.

Issue. 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 of the Constitution?

Held. No. The Supreme Court of the United States (Supreme Court) found that requiring reporters to disclose confidential information to grand juries served a “compelling” and “paramount” state interest and did not violate the First Amendment of the Constitution. The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation. The average citizen is often forced to disclose information received in confidence when summoned to testify in court

Dissent. The Supreme Court invited state and federal authorities to undermine the historic independence of the press, by attempting to make the journalistic profession an investigative arm of government. The government should have to show when asking a reporter to appear before a grand jury and reveal confidences that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law and demonstrate that the information sought cannot be obtained by alternative means less destructive of the First Amendment constitutional rights and demonstrate a compelling and overriding interest in the information
Concurrence. If the newsman believes the grand jury is not being conducted in good faith, 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 the freedom of the press and the obligation of all citizens to giver relevant testimony with respect to criminal conduct.

Discussion. Newsmen are not protected by the First Amendment of the Constitution to refuse to testify before a grand jury regarding information pertinent to a criminal investigation, on a theory they receive this information in confidence and to disseminate such information would obstruct the free of flow of information.