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Branzburg v. Hayes

    Brief Fact Summary. After being requested to testify in front of grand juries as to the identities and activities of their confidential sources, three journalists unsuccessfully claimed that the identity of their confidential sources was protected by the First Amendment of the United States Constitution (Constitution).

    Synopsis of Rule of Law. Requiring reporters to disclose confidential information to grand juries serves a “compelling” state interest and does not violate the First Amendment of the Constitution.

    Facts. Three journalists refused to appear and testify in front of grand juries as to the identities and activities of some of their confidential sources from which they obtained information in order to write articles. The reporters sought a conditional privilege that would have barred their mandatory appearance in front of the grand jury unless the Government could demonstrate that they possessed information relevant to a crime and that the information they possessed was unavailable from other sources.

    Issue. Whether requiring newsmen to appear and testify in front of grand juries about information they received in confidence violates their rights to freedom of speech and press under the First Amendment of the Constitution?

    Held. No. News gathering qualifies for First Amendment constitutional protection. However, these cases involve no intrusions upon speech or assembly and no penalty, civil or criminal, related to the content of the material is at issue here. The great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation. We cannot interpret the First Amendment of the Constitution to grant newsmen a testimonial privilege that other citizens do not enjoy. The requirement that a state’s interest must be “compelling and paramount” to justify even an indirect burden on First Amendment constitutional rights are met here. The investigation of a crime by the grand jury implements a governmental fundamental role of securing the safety of the person and property of the citizen. Further, the state has the necessary interests in extirpating the trafficking of drugs etc. and these reporters could supply
    information to aid the government in addressing these interests. Therefore, requiring newsmen to appear and testify in front of grand juries about information that they received in confidence does not violate their rights to freedom of speech and press.

    Dissent. This decision allows federal authorities to undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of the government.
    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 report herself is implicated in a crime.
    Concurrence. This is a narrow holding. The Court is not holding that newsmen subpoenaed to testify before a grand jury are not without constitutional rights with respect to gathering news or in safeguarding their sources. If a grand jury is not conducted with good faith, the newsmen are not without a remedy.

    Discussion. In response to this case, which exposes reporters to being called in to testify in front of grand juries, many states passed “shield” laws providing at least a qualified privilege against revelation of journalists’ sources.


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