BRANZBURG v. HAYES

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Argument of Griswold

Chief Justice Mr. Chief Justice Berger: -- number 70-57, United State against Caldwell.

Mr. Solicitor General.

Mr. Griswold: May it please the Court.

This case is here on a writ of certiorari to review a decision of the Ninth Circuit Court of Appeals.

The question raised relates to the obligation of a newspaperman to appear before a grand jury.

The court below held that he need not even appear.

We think that decision was wrong, and that it goes far beyond anything that can be found in the words of the First Amendment, and beyond anything that can fairly or properly be implied from that provision.

The case arises in this setting.

In November 1969, David Hilliard, the Chief of Staff of the Black Panther Party, stated publicly in a speech, “We will kill Richard Nixon.”

This speech was televised live, and rebroadcast over many stations.

As a result Hilliard was indicted in December 1969, charged with making threats against the life of the President of the United States contrary to Section 871 of Title 18 of the United States Code.

The threat was repeated in three subsequent issues of the weekly periodical called 'The Black Panther.

' Numerous public statements of a similar nature were reported as being made during the same period by members or friends of the Black Panther Party in various parts of the country.

The respondent in this case, Mr. Caldwell, is a newspaper man, employed by the New York Times.

He wrote a series of articles about the Black Panther Party, three of which appear in the printed record.

One of these was published in the New York Times on December 14, 1969.

It appears in full at pages 11 to 16, of the Appendix.

In this article, the respondent reported on a conversation he had with Hilliard and others at the Panther's Headquarters in Berkeley California.

He quoted Hilliard as making the following statement, and this appears on page 13 of the record.

“We are special,” Mr. Hilliard said recently, “We advocate the very direct overthrow of the Government by way of force and violence, by picking up guns and moving against it because we recognize it as being oppressive and in recognizing that we know that the only solution to it is armed struggle.”

And then Mr. Caldwell went to say in the article, "In their role as the vanguard in a revolutionary struggle, the Panthers have picked up guns.”

Some weeks after the publication of this article, the first subpoena was issued to Mr. Caldwell, on January 30, 1970.

This was a subpoena duces tecum.

It appears on page 20 of the Appendix, but it was not pressed and it is now involved in this case.

The second subpoena was issued on March 15, 1970, it appears on page 21 of the Appendix.

It is a subpoena to testify only.

Most of the proceedings in the District Court were taken with respect to it, but the grand jury to which that subpoena was returnable, expired early in May, 1970.

A new grand jury was in empaneled and a new subpoena, the third subpoena was served on May 22, 1970.

It's that subpoena which is involved here.

The decision of the District Court related to it, but by order of the District Court, the proceedings relating to the earlier subpoena were incorporated into these proceedings, and therefore, we refer to one or the other interchangeably.

A motion was filed to quash the May 22, subpoena, it appears on pages 98, 99 of the Appendix.

It states, the grounds of this motion are identical to the grounds of (Inaudible) motion to quash grand jury subpoenas filed March 17, 1970, and it was with respect to the earlier motion to quash that Mr. Amsterdam stated, and this is on page 36 of the Appendix, right in the middle of the page, the essential claim of the motion to quash is that Mr. Caldwell's very appearance before the grand jury under the broad terms of these subpoenas will irreparably breached and damage associations and means of freedom of speech and of the press, protected by the First Amendment.

The District Court, Judge Zirpoli in the Northern District of California, denied the motion to quash and directed the respondent to appear, but subject to very specific conditions.

The District Court's order of April 7 which was where he made the determination, appears at pages 94–97 of the Appendix, and the corresponding order of June 4 appears at pages 104 and 105 of the Appendix.

The relevant portion of the order actually involved is on page 105 and it reads as follows.

It is hereby ordered that Earl Caldwell is directed to appear before the grand jury pursuant to the subpoena of May 22, 1970 and in so doing, he shall not be required to reveal confidential associations, sources, or information received, developed, or maintained by him as a professional journalist in the course of his efforts to gather news for dissemination to the public through the press or other news media.

Two, that specifically without limiting paragraph one, Mr. Caldwell shall not be required to answer questions, concerning statements made to him, or information given to him by members of the Black Panther Party, unless such statements or information were given to him for public information, for publication or public disclosure.

And third, that to assure the effectuation of this order Mr. Caldwell shall be permitted to consult with his counsel at anytime he wishes during the course of his appearance before the grand jury.

Thus, the issue here is an exceedingly narrower.

The respondent has been granted protection against revealing confidential sources and confidential statements.

The government did not appeal from that part of Judge Zirpoli's order and this was partly because we did not think that it was appealable.

It is clear, however, that these limitations are in no way at issue here.

The only issue here is that expressed in Mr. Amsterdam's words, in the show cause hearing before Judge Zirpoli, when he said and this appears on page 108 of the Appendix in the transcript of the hearing before Judge Zirpoli just below the middle of the page.

The only cause which we have to show is that Mr. Caldwell has a constitutional right not to appear before the Grand Jury.

” The Court of Appeals below sustained this contention in it's entirety and held that the respondent need not even appear before the grand jury and despite the broad protection which has been afforded to him by the District Court's order.

Justice Potter Stewart: In a way, is it despite or is it in view of the broad protection that's been applied to it.

Now since he has been given so much protection and since that's not been appealed from and is not an issue here and is the question that it maybe an issue that is view of this law protection, what possible purpose for his appearance before the grand jury will do?

Mr. Griswold: I think that, that is perhaps an appropriate interpretation of the decision of the Court of Appeals and it is exemplified at page 125 in the opinion of the Court of Appeals.

Now appellant asserted in affidavit that there is nothing to which he could testify beyond that which he has already made public and for which therefore, his appearance is unnecessary and I question whether his appearance is unnecessary just because it appears in an article, there is some difference between testimony under oath and a newspaper article that is not protected by the District Court's order.

This is a rather definitive and positive statement, but I think its basis in the record is (Inaudible) and unattenuated.

Justice Potter Stewart: Now the whole paragraph now goes to that point --

Mr. Griswold: Yes, but this particular statement can rest only on the affidavit of Earl Caldwell which appears at pages 17-19 of the Appendix.

This is an affidavit intended to be self-serving and without any executors and of course without cross examination and the only passage in the affidavit which bears any relation to this is on page 18 of the appendix about two inches above the bottom of the page where Mr. Caldwell said, “Generally” and generally certainly leaves quite a lot of room for discussion.

“Generally, those matters which were made on a confidential or on a non-confidential or for publication basis have been published in articles I have written in 'The New York Times.' Conversely any matters which I have not thus far disclosed in published articles would have been given to me based on the understanding that they were confidential and would not be published.

”Well, in the first place what that word generally covers, what the exceptions maybe because obviously when you say generally, you recognize that there are exceptions, does not in any way appear and it is surely a legitimate subject of inquiry but there other aspects of the matter.

Mr. Hilliard has quoted in the article written by the respondent.

That certainly is no longer confidential.

What were the circumstances in which it was said?

Was it after an evening of drinks when people were talking pretty freely and loosely?

Was it puffing or boosting as a means of attracting attention?

Could it had been said in jest?

The government and the grand jury are as much interested in establishing the innocence of Mr. Hillard as in getting a further indictment against him.

This has not begun to cover the field of questions which an experienced examiner could direct his respondent within the limitations imposed by the District Court.

But it isn't sufficient it seems to me to show that this key statement in the opinion of the court below has no adequate foundation in the record.

Justice William J. Brennan: And Mr. Solicitor General what about -- what is this Court of Appeals trying to -- is this, I am looking at 125, “if this is true and the government apparently has not believed it's necessary to excuse.

” The next --

Mr. Griswold: I don't know what it is meant by the government apparently has not believed it necessary to dispute it as disputed it in --

Justice William J. Brennan: So it has disputed now --

Mr. Griswold: -- consistently all the way along.

It disputed it and counter affidavits before Judge Zirpoli, It disputed it in the Court of Appeals and it is trying to dispute it here.

Justice William J. Brennan: Well, are you suggesting the Court of Appeals thought that the government agreed with the appellant's assertion on first sentence, doesn't it?

Mr. Griswold: Well, if the Court of Appeals believed that, it was against every effort made to disabuse with such a belief.

The government has accepted the restriction as I believe it had to, I don't think it had any choice.

Conceivably we could have sought mandamus to compel the judge to remove this restriction.

That would have involved long delays which at that time we were anxious to avoid and we did not foresee the long delay which had occurred.

We thought that the Court of Appeals would decide the case the other way and we could get on with the inquiry.

We felt that the order, that the limitation was not appealable and that in our judgment discretion it was not wise to seek a review of it by a mandamus, but it by no means follows that we accepted it, thought it was correct, thought that it was warranted or indeed that it completely foreclosed any possible inquiry of Mr. Caldwell before the grand jury.

I believe that the decision of the Court of Appeals that he need not even appear is unprecedented.

I know of no other decision that is held with a newsman or any other person need not appear before a grand jury.

I suppose that everyone in the country except, the President of the United States, was amenable to subpoena before a grand jury, subject only to the privilege against self-incrimination after he got there and to the control of the court as to specific questions that might be put to him, such control being exercised after he appeared and it was known what those questions were and the reasons why he felt that he should not be required to answer them.

Justice Potter Stewart: Where is the exception to the President of United States come from?

Mr. Griswold: In Separation of Powers, I suppose, by historical derivations from the King, it's simply a matter of common constitutional law.

Justice Potter Stewart: What if the President of United States were an eyewitness to --?

Mr. Griswold: I think, if I go back, if my mind goes back as far as, Livingston and Jefferson and the President was held not amenable to suit and I understand that he is commonly regarded as not amenable to process of the courts.

Justice Potter Stewart: I don't think Jeremy Bentham would be with you.

Jeremy Bentham said that the King had to appear, didn't he?

Justice William H. Rehnquist: Well, John Marshall said, the President didn't have to appear, didn't he, in the trial of Aaron Burr --

Mr. Griswold: In the Trial of Aaron Burr, he said he did not have to appear and I repeat I believe that's what Livingston and Jefferson decided.

It's just one of those historical (Inaudible) anomalous rules which one learns in school and which I had supposed with --

Justice Potter Stewart: I guess, I didn't learn it -- [Laugher]

Mr. Griswold: -- which I had supposed was unquestioned --

Chief Justice Mr. Chief Justice Berger: And which probably doesn't hurt anybody very much?[Laughter]

Mr. Griswold: And there was a case following the civil war, if I recall too, it was somebody against Johnson.

South Carolina against Johnson could it be in which it was held when President Johnson was not amenable to suit.

Though the question actually involved in this case is a relatively narrow one, there is a constant effort to treat the case on a broader basis in the numerous briefs which have been filed.

But this Court has called upon here to decide only, whether a reporter can refuse to appear and testify before a grand jury about matters concededly non-confidential in nature on the ground that his appearance alone would jeopardize confidential relationships and thereby have a Chilling Effect on the freedom of the press guaranteed by the First Amendment, the First Amendment.

It's clear there's no privilege to newspaperman at Common Law.

A number of states have adopted statutes granting a privilege to newspaper reporters, but there has never been a federal statute to this effect and Bills which were granted have never come out of the committee.

Thus the respondent's position must rest exclusively on constitutional grounds, namely, that the First Amendment protects not only the right to print and publish without abridgment, but also provides a constitutionally protected right to have a wholly unconstrained road in gathering the news.

There is no foundation for this in the language of the First Amendment, surely in it's historical background or in prior decisions of this Court.

Nevertheless, whatever this Court may do about the reporter's privilege generally, it should not justify his refusal even to appear before a grand jury, to testify only to matters concededly non-confidential in nature.

Most of the material in this record, consisting largely of affidavits prepared by well known newsman is not relevant to this issue.

Since with few exceptions they deal with the questions of confidential sources and confidential material, they were filed before Judge Zirpoli's opinion.

Nevertheless, the position that the reporter to need not even appear to answer the questions with respect to non-confidential material is argued vigorously, one might even say extravagantly.

Thus counsel for the respondent in his brief says, “to an extent never previously shown, this record documents, the devastating effect that the compulsion of newsman's testimony has upon freedom of the press.

Yet as I have indicated with only one exception, the items relied on deal with confidential sources and confidential material which are not involved here and they are based solely on affidavits from newsman which are in their nature self-serving, and never subject to cross examination.

These affidavits do show that there is a reaching out among journalists for a reported source privilege.

But such a desire among newsman as heretofore fallen short of establishing a constitutional right.

Since the briefs were filed in this case, we have a new source of information about this.

I am not sure just what it's status is, but there has been made available within the past two weeks, a study report of the Reporters' Committee on Freedom of the Press.

This seems to be an ad hoc group of which Mr. Fred P. Graham of the New York Times has listed as coordinator.

The work was done by Professor Vince Blasi of the University of Michigan Law School.

It's clearly a thoughtful, through and reasonably objective report subject to the comment that the information summarized was obtained only from reporters and others connected with the communications media.

In addition, a portion of the report has just been published in an article in the Michigan Law Review for December 1971.

This is the Newsman's privilege and empirical study in 70 Michigan Law Review 229.

Now perhaps it's just my academic background that makes me regret that the Professor Blasi does not disclose in his Michigan article that his study was in fact commissioned by the Reporter's Committee.

As I have indicated though within the plan that he has adopted, he appears to have done a careful and thoughtful job and the court may find some useful materials in the study or in the article.

One thing that does appear I think, is that reporters generally are much less intense about this than is the respondent's brief.

Professor Blasi says for example, that the average newsman in the population survey relies on regular confidential sources in 22.2% of his stories and on first time confidential sources, in 12.2 2% of his stories.

Another item of possible interest, it appears he asked his respondents, “In the last 18 months, has your coverage of any story been adversely affected by the possibility that you might be of subpoenaed.

Of the 887 newsman who answered this question, 8% said yes, 10.9% said, I am not sure and 81.1% said no.

And again, in the respondent's brief in this case, a reporter Anthony Ripley is referred to and the statement is made that “Anthony Ripley was destroyed by being subjected to a subpoena,” that's on page 75 of the Respondent's Brief.

But Professor Blasi says in his report these incidents were personally very upsetting directly, but they did not significantly interfere with his reporting career.

He subsequently was able to do a superb investigative story on the shootout in Cleveland.

Anthony Ripley's case is thus not as it is sometimes cited to be, referring to the brief in this case, an example of the subpoena causing an intolerable interference with news quote.

If there were a reported privilege not even to appear before a grand jury, found by this Court for the first time somewhere in the penumbra of the First Amendment where it's surely not within it's terms, how far is it to extend?

To whom is it to be made available?

Surely, it could not be limited to what might be called the established press like 'The New York Times' nor can it be limited to daily newspapers, or to newspapers.

It would have to apply to radio and television reporting.

It would also have to apply to the foreign language press, the underground press, the college press.

It would have to apply to magazines and surely to pamphleteers.

What about people who write books?

And there are beginning to be assertions that there is an academic privilege, a privilege by academic persons not to testify about activities in which they have been engaged which bear some relation to their fields of interest and scholarship.

If a privilege is not even to appear before grand jury is established on the part of the established press, I find it difficult to see where the limit can fairly be drawn with respect to anyone who publishes in any form or speaks, whether in the classroom or on the platform or on the street corner or an Union Square.

There maybe safeguards which are appropriate in particular cases.

This is not an issue in this case, but to hold that any person has a privilege not even to appear before a grand jury without a single question being asked, goes beyond anything that has yet been decided and seems to us to go too far.

The grand jury should not in this case, any more than in other cases, be required to predetermine and disclose the scope of it's investigation as a condition to calling the reporter who has undertaken to make public any statements including allegedly direct quotations from a number of people.

The press plays a great role in this country and rightly so.

It has almost unlimited freedom to print what it pleases without prior restraint.

As this Court's decisions last June in 'The New York Times' against the United States shows.

But as I read the opinions in that case, though a majority of the Court opposed prior restraint on the facts of that case, there was also a majority of the Court that seemed to say that the press can be held responsible through criminal sanctions when they are applicable, for what it does decide to print.

Surely, such possible criminal sanctions or civil liabilities for malicious libel which as far as I know, have never been barred, malicious libel, must have a chilling effect on the press to utilize that overused phrase.

What this means is that the press, though having great freedom to print, likewise has many responsibilities of citizenship.

Just as the press is responsible and can be held responsible for its actions, reporters are citizens and retain the responsibilities of citizenship at the very least.

Whereas here, protection has been given against disclosing confidential sources or confidential information, there is no basis for giving a privilege not even to appear before a grand jury.

Since the court below in effect established such a privilege, which judgment should be reversed.

Chief Justice Mr. Chief Justice Berger: Thank you Mr. Solicitor General.

Mr. Amsterdam?

Argument of Anthony G. Amsterdam

Mr. Anthony G. Amsterdam: Mr. Chief Justice, may it please the Court.

If constitutional adjudication were a process of picking the general legal doctrine that fitted a case most closely and applying it mechanically to result a specific controversy then the present case would involve an interactively difficult problem.

The government stands on a categorical imperative that the grand jury is entitled every man’s evidence.

We would I suppose have to stand on a categorical imperative with equal abstraction on the other side that government may not abridge the freedom of the press and the court would have to pick between the two.

Of course, that is not the issue, that is not our position.

But it is the government's position which stands I think rather woodenly on a proposition that whatever protection the First Amendment may give against specific questioning by grand jury, the obligation of a witness to appear before the grand jury is so absolute, saving only perhaps the President of the United States, that no situation, no conflict with any other right, however extreme, can qualify the grand jury’s right to have every witness appear before it.

Justice William O. Douglas: I suppose here occurrence would give the opportunity to -- or there is a chance that the witness might change his mind or breakdown or be swatted out of his own position?

Mr. Anthony G. Amsterdam: Well, that is certainly one of the dangers involved in his appearance and one of the reasons why we think his non-appearance, and particularly in very narrow circumstances of this case is not required.

We think the government's position --

Justice Thurgood Marshall.: What happens to Fifth Amendment cases?

Now Fifth Amendment cases you have to do it, don't you?

Mr. Anthony G. Amsterdam: Yes, but the Fifth Amendment privilege Mr. Justice Marshall is based on quite a different footing.

The Fifth Amendment privilege is based on the notion that the evidence that one gives may result in harm by incrimination.

Nothing that underlies the Fifth Amendment depends on the effect of testimony upon one’s relations with other people.

Chief Justice Mr. Chief Justice Berger: Well, the harm might be much greater in the case of the Fifth Amendment situation than in the first, might it?

He might go to jail for --

Mr. Anthony G. Amsterdam: I cannot conceive of any way in which his appearance before the grand jury would incur much harm under the Fifth Amendment, let alone more than in this case to the First.

Chief Justice Mr. Chief Justice Berger: What if the circumstances were such that he requred with or at least close enough to some organized another desperate criminal group that he might get shot on his way to the grand jury as soon as it became known.

Would you think that would afford an excuse for going?

Mr. Anthony G. Amsterdam: No, perhaps I misunderstand the question.

I have no doubt that no one maybe exempted from appearance before a grand jury, nor indeed from answering questions, simply because of considerations of personal safety.

But in terms of Mr. Justice Marshall’s question as to why one may compel a witness to appear in front of the grand jury without a prejudice for Fifth and I think Your Honor's question in regards to what criteria for the Fifth would be incurred, there is no criteria to the the Fifth.

When a question is asked, he claims it.

If the government overbears him in anyway as Mr. Justice Douglas suggested and the evidence is sought to be used against him, we have of course self-incrimination in violation of the Constitution and it simply can’t be used.

The Fifth Amendment in short is protectable by the process of having to respond to a particular question.

The First Amendment privilege which I hope to develop on the basis of the record here, rested on very different footing all together.

It rested on the impact of the interrogative process, on relations between the reporter and his sources which are not protected in the way that the Fifth Amendment could adequately be protected before the grand jury.

The -- it's our position that --

Chief Justice Mr. Chief Justice Berger: What does it reach?

The point I was trying to flush out Mr. Amsterdam, what does a man having witnessed a gang slaying to make it more concrete, and he is at least thought by the police to have been a witness although they are not sure and they serve a subpoena on him in the usual course and he goes into the District Court and says that if I go to that grand jury, my friends will never believe that I didn’t tell something and I will be shot and you have just said that considerations of personal safety would never be an excuse for staying away.

Mr. Anthony G. Amsterdam: That's correct Your Honor.

Chief Justice Mr. Chief Justice Berger: Considerations of being able to gather news at some future date too should be an excuse?

Mr. Anthony G. Amsterdam: Yes, Your Honor.

I --

Chief Justice Mr. Chief Justice Berger: It's more important than his life.

The reporter's life --

Mr. Anthony G. Amsterdam: Nothing is more important than life, but one doesn’t reason back within the fact that deprivation of life maybe involved that other rights can’t be taken away by a process which jeopardizes specific constitutional guarantees.

The question in this case we think is as the government has stated whether or not Mr. Caldwell is required to appear.

I would answer Your Honor’s question as to whether a witness was required to answer any specific question in the same way and which I answer the question whether he is obliged to appear.

Fear for the safety of life would be no defense to refuse to answer to a specific question.

Fear for the safety of life would be no excuse for not appearing at all.

The government is drawing a distinction between appearing and answering a specific question.

Surely, that distinction draws no sustenance from the fact that a grand jury witness is not permitted to refuse to appear because his life maybe in jeopardy, he is also not permitted to refuse to answer questions because his life maybe in jeopardy.

That is I think a totally different issue from the issue here where it's not the witness’ right primarily that is at stake at all.

What is primarily involved is the impact of the process of subpoenaing witnesses who are newsmen with the inevitable effect on the editorial decisions which are made, which I'll come back to, and also the process of gathering news upon the free flow of information of the problem, that I think poses a totally different problem than any question of personal safety of any one particular witness.

The government states the grand jury’s right to the testimony of every man in terms which I think bring to mind Justice Holmes’ favorite aphorism that every right tends to declare itself absolute to it's logical extreme, followed of course by the observation that in fact every right is not absolute to it's logical extreme, but is limited by the neighborhood of other principles which come to hold water, to hold their own against that right when a certain point is reached.

The question in this case very simply is whether the point has been reached, at which the general right which we do not contest at all of a grand jury to have the testimony of every man, to have every man appear is to be accommodated at all to concerns for the First Amendment.

We take a very different views from the government.

We don't stand on the proposition that nothing that the grand jury does which affects the First Amendment maybe permitted.

We don't take the position that the First Amendment is the end of the grand jury.

What we think is involved is the accommodation of two very, very important concerns.

The grand jury’s investigative process on the one hand and the reporter's investigative process on the other.

And we think that the Court of Appeals properly, again on the narrow facts of this case struck the balance between those two by saying that, although ordinarily any witness must appear before a grand jury, that in a case of reporters, on the showing made on this record.

The government may compel appearance only by making a foundation showing which it has never made or attempted to make in this case.

Well, the government has presented the case in this Court both in its brief and the argument by taking really two positions.

But, the one that most stands on is that even if Mr. Caldwell has a right as a journalist protected by the First Amendment not to answer specific questions, but nevertheless he must appear.

Then the government appears to take the position, although is not argued separately this morning in detail that in fact the journalist doesn't even have any protection against specific questions.

Now, that way of phrasing the matter kind of requires me to argue my case backwards.

I would like to start logically by demonstrating that as the Court of Appeals found and through the processes by which it found it, that a reporter does have some constitutional protection if there is some First Amendment interest implicated and the subpoena-compelled testimony of newsmen.

And that, that First Amendment interest requires some accommodation with the grand jury process and then I would like to proceed to discover what accommodation is required in this case.

But since my argument time is limited and there are two other cases that follow this one, it will be of primarily with the question of whether the reporter has any First Amendment protection at all, I think I would like to start with the same position that the government took in this case and assume the validity of Judge Zirpoli's order and ask whether if Judge Zirpoli's order is proper and if this Court would affirm it, Mr. Caldwell should be entirely excused from appearing, then in what time I have left after that I can come back, if I can and deal with the question of the propriety of the order.

Now, in dealing with that question I think it is very important to follow the course of litigation in this case and the positions that the parties have taken in it.

The litigation began by the service of the subpoena on Mr. Caldwell, it had a duces tecum rider which made very clear that he was to be questioned about the Black Panthers.

Mr. Caldwell filed an affidavit in support of a motion to quash that subpoena which was cited that among other things, he had no unpublished, non-confidential information about the Black Panthers.

I will read the specific terms in that affidavit for one second, but first thing I want to point out is this affidavit was not filed at latterly stage of this proceeding with an intent to ride himself into the protection of the district judge's orders.

This was quite at the very beginning before everybody had the faintest idea what the district judge's order was going to be.

And Mr. Caldwell, the reason for the work generally at the beginning I should note of the quotation I am going to read which Mr. Griswold is focussed on is to explain the immediately preceding sentences in which Mr. Caldwell makes clear that to write a Panther's function with the press doesn't involve an on the record off the record type of a thing, it's an understanding of what is confidential and what is not.

It is in that context that he says generally, those matters which were made on non-confidential or for publication basis have been published in articles I have written in the New York Times.

Now, we get to the converse preposition which is the important one and which is qualified by generally, conversely any matters which I have not thus far disclosed in published articles would have been given to me based on the understanding, that they were confidential and would not be published is a certain quite categorically that he does not have unpublished non confidential material about the Black Panthers.

Now the government putting numerous affidavits, made no contest on this point whatsoever.

The District Court came down with an order granting Mr. Caldwell a protection against specific questioning but requiring to go before the Grand Jury.

During the course of proceedings under that when that Grand Jury expired, a new subpoena was issued, the government again had a full blown chance to contest factually the proposition on which the Court of Appeals later was to make its finding that Mr. Caldwell had no unpublished non-confidential information to give the Grand Jury.

The government made no such showing.

Justice William H. Rehnquist: Mr. Amsterdam isn't a place where the government ordinarily contest that before the Grand Jury itself.

The government may not want -- may not know what Caldwell will be able to testify to and customarily it brings him before a Grand Jury to find out what its testimony would be?

Mr. Anthony G. Amsterdam: I have no doubt that if there were no reason to give him protection against appearing before the Grand Jury, that a perfectly proper place to explore that question would be before the Grand Jury.

But where the claim is made, as it was in this case, that there are serious constitutional implications, harms to the First Amendment of his very appearance, then it quietly and properly inquire I believe whether there is anything that the government could get out of him if he went in front of the Grand Jury.

Justice William H. Rehnquist: Isn't the government have to build in disadvantage in that sort of a proceeding in that the witness such as Mr. Caldwell here will have his version of what the government could get out of him first supplied by an affidavit and the government not having to have the advantage of examining, very likely simply does not know what it may get out of him?

Mr. Anthony G. Amsterdam: Well, that is precisely we think the implication of this Court's decisions for example in legislative investigation area, that although government is at a disadvantage in starting investigations, it may not start them in a way that has a drastic effect on the First Amendment simply on speculation.

I agree that in many cases it maybe difficult for the government to know what a reporter knows.

But, Mr. Justice Rehnquist, the government subpoenaed this man for a reason I suppose.

We think it is based in part on electronic eavesdropping, but the government says it subpoenaed him on basis of his stories.

Now if there were any evidence in the stories that he had non confidential, unpublished information or if the government provide other information that we think it has about Mr. Caldwell's communication with the Panthers, there would be no difficulty Your Honors establishing what the government thinks that Mr. Caldwell knows.

The government has not even suggested in this case anything that maybe non confidential and Mr. Caldwell has in many ways in which the government could go about making such a showing in face of his writings, anything that he had said outside of his writings, that the government may have overheard in terms of his communications with the Panthers something very much in issue in background of this case.

Justice Byron R. White: Mr. Amsterdam, what about calling him to -- get him to put on the record what he has written in the story?

The non confidential information that a Grand Jury may will want to hear in order to -- as a -- to get it on sworn form and in order to get his own reaction to it?

Mr. Anthony G. Amsterdam: Mr Justice White, I cannot deny and do not deny that it would be admissible evidence before a Grand Jury to have Mr. Caldwell come in and authenticate his story, I do not deny that.

Nor do I assert is what he published was confidential, his publication of it makes very clear that it was not confidential.

What I do assert what I think the Court of Appeals very plainly believed or is it there a certain implements to investigation which are so de minimis, so marginal, so totally insignificant, that any significant First Amendment harmony other side plainly out raged them in the same way in which the state cannot, even though it has an interest in prohibiting street littering, it cannot forbid to giving out handbooks.

Now let us look for a moment at what Mr. Caldwell's authentication of this article would tell a Grand Jury.

Chief Justice Mr. Chief Justice Berger: Before you get to that, let me ask you this because it may relate to it?

Suppose the articles that were actually published showed concrete evidence of indictable offenses, do you think that the Grand Jury could just put those articles in the record of the Grand Jury and then indict on that basis or do you think that they ought to have the duty to call him and make the same statements under oath?

Mr. Anthony G. Amsterdam: Well, Your Honor, do I think that the Grand Jury could or properly should subpoena the reporter?

I think that if the reporter's statement describes the elements of indictable offenses that the authentication of the story would in many but not all cases provide valuable information for the Grand Jury.

Now one of the tests we propose as a foundation for calling a reporter before the Grand Jury is that, that information not be available through means that are less destructive of First Amendment interest.

So I am not in answering Your Honor's question suggesting that I think that, that witness could always be called, but it was there would be totally different case in this case.

Because here what we have is authentication, if any, of a proposition that David Hilliard said that the Black Panthers were revolutionary group and that this was serious.

Let me suggest this way, what that would add to the Grand Jury's information is charitably described as zero.

Justice Byron R. White: Well, what are you pushing that anytime a court would decide that he doesn't have that -- he is authenticating his published stories would not contribute much, you can't call it, but in a lot of other circumstances you could, is that your suggestion?

Mr. Anthony G. Amsterdam: Alright then Mr. Justice White, actually approach what basically is that that kind of accommodative judgment is what the stand off, if you will, of the Grand Jury institution embodied in the Fifth Amendment and the First Amendment across the board.

Justice Thurgood Marshall.: Mr. Amsterdam, is there any other group that can tell a Grand Jury or can't be subpoenaed?

Mr. Anthony G. Amsterdam: I am sorry, Mr. Justice Marshall, is there are any other --

Justice Thurgood Marshall.: Group of people in the United States, when they get a Grand Jury subpoena, can say I won't come?

Mr. Anthony G. Amsterdam: Oh! Yes, Your honor, there are a number of people --

Justice Thurgood Marshall.: Who?

Mr. Anthony G. Amsterdam: Well, one case is, for example, Window Glass Workers Workers case we cited in our brief.

It's not a matter of a group if an individual --

Justice Thurgood Marshall.: Well, you're talking about a group.

You said anybody who has the word reporter in his vocabulary, is it, or did you draw a line?

Mr. Anthony G. Amsterdam: I would suppose that there were constitutional rules and I think that the First Amendment might be one of them, which might very well preclude other people from being called before the Grand Jury than reporters.

I think that, for example, if the Grand Jury called before it, individuals who were members of the NAACP in Little Rock that in particular circumstances with a particular balancing test, this Court might very well find that the very appearance of those people before the Grand Jury was so destructive of First Amendment interest that they could not be called.

Justice Thurgood Marshall.: Well, I am speaking about 1972?

In California, what proof is there that has this privilege of not even going, I mean, a lawyer can go to the Grand Jury and say what you want for me would violate the lawyer-client privilege, and I won't tell you, the doctor can say and they have their privileges fairly established, but they go and raised that privilege, but as I understand your point, they don't even have to go to the Grand Jury?

Mr. Anthony G. Amsterdam: To start with that is not necessarily my point, that is not the basis -- is not the basis on which the Court of Appeals' decision rests.

My point is that if the defendant -- if the Grand Jury witness is so completely protected by the protective order that he needs to answer no questions which could be of any use to the government, that it would be a futile exercise to make him appear and that would violate the First Amendment, if the fact of appearance would have a significant --

Justice William J. Brennan: Well, may I ask Mr. Amsterdam, let's take this very protective order, an article which had been published in the New York Times attributing to someone, an admission that he had committed a murder.

In that circumstance, would this very protective order, would that be a situation in which he would have to appear where the balance would be that he must appear?

Mr. Anthony G. Amsterdam: I think with one qualification, again, Your Honor, that I think the government should have to show also unavailability of equal information could not be served, but if we put that one aside, and I am willing to put it aside because I don't need to reach it, for the purposes of this case, then I would say that the government could call it.

Justice William J. Brennan: Well, then all you are asking is, as I understand it a principle which requires a balance in which balance made in this case, opts in favor of affirmance of the Court of Appeal, that's all there is to it?

Mr. Anthony G. Amsterdam: Precisely.

Now Your Honor, I think this is very important.

Mr. Justice Marshall, the court below tool this thing in two bites and I would like to take it in two bites if I can.

Bite one is the question whether or not this witness was entitled to some kind of protection against open-ended questioning before the Grand Jury which might intrude on First Amendment relations.

Now we argue that its open-ended appearance before the Grand Jury would have a devastating effect on the free flow of information, that's central to the First Amendment.

Justice Thurgood Marshall.: Let's get to this point.

Wouldn't it be, you wouldn't raise the question, as I understand a part of the opinion of the Court of Appeals is that government has a responsibility for showing what they need you for, is that right?

Mr. Anthony G. Amsterdam: On the narrow facts of this case, that's correct, but let me --

Justice Thurgood Marshall.: What would happen for example, if Mr. Caldwell was talking to members of the high pollutant fly people, a confidentially etcetera, and he gets subpoenaed and he says I don't have to come because whatever I heard was confidential, and the government shows, yeah, but while you were there they brought out two dead bodies.

Mr. Anthony G. Amsterdam: That would meet the government's burden.

Justice Thurgood Marshall.: You have no problem with it.

Mr. Anthony G. Amsterdam: No problem and the Court of Appeals decision leaves that open, and the thing that has been I think totally ignored in the government's argument is Court is that that is open.

Not only has the government at every opportunity below failed to claim, that there weren't any dead bodies working around here or any non-confidential information, but the Court of Appeals sort of leaves it to the government to show that on remand.

The Court of Appeals, the only holding in this case is that they are very narrow and this appears on page 25.

It says if any competing public interest is ever to arise in a case such as this, that is any competing need where the testimony of a witness, where First Amendment liberties are threatened by the mere appearance at a Grand Jury investigation, it would be on an occasion in which the witness or in with his privilege can still serve a useful purpose before the Grand Jury.

Considering the scope of the privilege embodied in the protective order these occasions would seem to be unusual.

It is not asking too much of the government to show that such an occasion is presented here.

We stand or not, we think this Court plainly ought to affirm it, because it's plainly read.

Justice William J. Brennan: Then in any event you are not asking or suggesting that First Amendment in this area requires a prophylactic rule?

Mr. Anthony G. Amsterdam: Absolutely not.

Justice William J. Brennan: That the reporter need not, that even appeal.

Mr. Anthony G. Amsterdam: Absolutely not Your Honor.

We are seeking to sustain this decision on the ground below that the witness had a privilege, embodied in Judge Zirpoli's order which would, in fact have so totally deprived his appearance of in fact, have so totally deprived his appearance of meaning that the residual harm which would have been done to the First Amendment rights far outweighed the residual benefit that would have been done to the Grand Jury's investigative process.

Now --

Chief Justice Mr. Chief Justice Berger: Is it possible that the Court of Appeals had no factual basis on which to reach that conclusion?

Mr. Anthony G. Amsterdam: It is not possible that they had no factual basis in which to reach it --

Chief Justice Mr. Chief Justice Berger: But I suppose, you would be saying that it would not be possible for us to make that conclusion on this record?

Mr. Anthony G. Amsterdam: No, I think first of all, due deference to the Court of Appeals' conclusion which stated not only that it reached it on the basis of the record, but that the government had not contested it, would not permit this Court to offset the point.

We would be satisfied but I think it would be inappropriate for the Court to offset it because the Court of Appeals' judgment allows the matter to be litigated by the government in the District Court where it can be far better litigated than by inferences such as what the word generally means on a court record in this Court.

Now my time is so close to running, and I would just like to spend a minute or two more on why I think the residual harm of mere appearance in this case does outweigh the residual benefit of mere, for example, authentication of the article.

The government is wrong in its assertion that only one, I think it said here, two in its brief, that the reporters below claimed that mere appearance would have a devastating effect on First Amendment rights.

In fact, there are six reporters who said this.

The pages in the record cited in the footnote on page 53 of our brief will give the Court those page references.

The government has also made some reference to Professor Blasi's study.

There are several things that ought to be said about Professor Blasi's study and not the least of which appears on page 69 of it nothing in the opinion of every reporter with whom I discussed the matter, would be more damaging to source relationships in a Supreme Court reversal of the Ninth Circuit's Caldwell holding.

Several newsmen told me initially they were extremely worried by the subpoena spread three years ago, but now their anxieties have greatly subsided as a result of the strong stand taken by the journalism profession, and their tentative victories in Court.

However, a Supreme Court declaration of the First Amendment is in no ways abridged by the practice of subpoenaing reporters would be administered set off a way that anxiety among sources but [Voice Overlap] holding would ---

Justice Potter Stewart: Mr. Amsterdam, I have the Michigan Law Review version of it --

Mr. Anthony G. Amsterdam: I have the full scale study, I believe that these are available --

Justice Potter Stewart: I have that in my office, I just wanted if there was a cross page reference.

Mr. Anthony G. Amsterdam: Page 69, it is at footnote, if the footnote is the same, it would be footnote 215 in that area.

Justice Potter Stewart: Thank you.

Mr. Anthony G. Amsterdam: The next point that I want to make about the Blasi's study, I think demonstrates importance of not litigating fact questions in this Court, but rather sticking to the record which I think is very clear on such questions, the source reliance and chilling effect.

The government has mentioned a fact that 8% of reporters say that in he last 18 months they had not been affected by the subpoena controversy.

The Blasi study nowhere says when the reporters were asked that question and when answered it.

In fact, the questionnaire went out in the third week of July of 1971 and answers were tabulated until October 28, 1971.

Eighteen-and-one-half months after the Caldwell decision by the District Court.

The Caldwell decision by the District Court had been given very wide publicity, as giving newsman a general protection.

It as Professor Blasi says on page 68 of this document, clear to the error and it's perfectly understandable and relatively to few reporters would have been affected in the period of 18 months following that decision by the fears which it is a very purpose of this litigation for late arrest.

Chief Justice Mr. Chief Justice Berger: Thank you Mr. Amsterdam, thank you Mr. Solicitor General.

The case is submitted.