408 U.S. 665 (1972), argued 22–23 Feb. 1972, decided 29 June 1972 by vote of 5 to 4; White for the Court, Stewart, Brennan, Marshall, and Douglas in dissent. Social unrest during the early 1970s prompted an increased grand jury interest in information collected by investigative reporters who often claimed First Amendment privilege to protect the confidentiality of sources.
Paul Branzburg of the Louisville Courier-Journal moved to quash a Kentucky grand jury subpoena that sought additional information about his story on the manufacture of hashish. Television journalist Paul Pappas refused to answer a Massachusetts grand jury's questions about his coverage of the Black Panthers. A Northern District of California federal grand jury held New York Times reporter Earl Caldwell in contempt for refusing to appear to answer questions about the Black Panthers. A Ninth Circuit Court of Appeals later reversed the ruling.
The U.S. Supreme Court, in a sharply divided vote, decided against a special First Amendment privilege for the press. Justice Byron White relied on common law and case law to hold that a reporter's responsibility to a grand jury did not differ from any other citizen. The grand jury, he said, was entitled to “everyman's evidence” (p. 688). White concluded that only legislatures could establish additional protection for reporters’ testimonial privilege.
Justice Potter Stewart, dissenting for himself, William Brennan, and Thurgood Marshall, argued that protecting the confidentiality of sources was essential to newsgathering. He thus would have required the showing of a compelling interest before a grand jury could obtain privileged information from reporters. Justice William O. Douglas also dissented vigorously and emphasized the importance of the public's access to information.
The Branzburg case prompted spirited discussion and a movement for shield laws to protect the press. A number of states added statutes or modified those in place, but shield proponents were unable to persuade Congress to pass a national privilege protection law. Nearly twenty years later in Cohen v. Cowles Media (1991), White again wrote for a majority of five to deny a claim of a special press privilege. The Court held that the First Amendment does not protect a newspaper from litigation if an editor, asserting the public's right to information, breaks a reporter's promise of confidentiality to a source.
Carol E. Jensen