IN RE PAPPAS
Pappas, a television newsman and photographer working out of a Providence RI office of a New Bedford MA television station, was called to New Bedford to report on civil disorders involving fires and other turmoil. Pappas intended to cover a Black Panther news conference. Pappas was admitted inside the Panther headquarters after agreeing that he would not disclose anything he saw or heard. Pappas stayed for three hours. He did not write a story based on his experience. Pappas was later summoned before a grand jury but he refused to answer questions about events that took place inside Panther headquarters.
Did the First Amendment's freedom of the press protect Pappas from appearing and testifying before the grand jury?
No. The 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. Justice White argued that since the cases involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no constitutional violation. Because 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. Pappas must appear and give testimony.
Argument of E. Barrett Prettyman, Jr.
Chief Justice Warren E. Burger: We will hear arguments next in 70-94, in the matter of Paul Pappas.
Mr. Prettyman you may proceed whenever you’re ready.
Mr. E. Barrett Prettyman, Jr.: Mr. Chief Justice, may it please the Court.
I represent the petitioner in this case, Paul Pappas.
This is the third case in the trilogy now, before the Court involving the First Amendment, a newsman.
The facts in the case are relatively simple.
Mr. Pappas is an experienced, professional newsman-photographer for WTEV-TV and with its principal offices in New Bedford, Massachusetts.
The station covers all of Rhode Island, part of Massachusetts, part of Connecticut.
On July 30, 1970, he was in Providence, Rhode Island, when he received a call from his station, telling him to go to New Bedford.
They seemed to be burning down New Bedford, was the message that he got, they were not identified.
He went to New Bedford, to the west end of the town where apparently that’s his orders had been described for him and he there ran into a barricade.
He therefore returned to the New Bedford office, after which he received another call, from his superiors telling him that he went back to the area, he would be allowed into the area through the barricade.
He returned and he set up his cameras outside a boarded-up variety store, which apparently was being used as headquarters for the Black Panthers.
He set up his camera and a spokesman for the Panthers came out of the store with about a dozen blacks.
They gathered and the spokesman gave a press interview.
There were approximately five newsmen present, including Mr. Pappas.
All of the films which Mr. Pappas took of the news conference were subsequently given to and viewed by the District Attorney.
The next sequence of facts which actually gave rise to this case were prompted by two occurrences.
First, during the news conference, the spokesman said that the police would be allowed into the store if they had search warrants, if they conducted themselves in a gentlemanly manner and if they were accompanied by the news media.
The second occurrence was that at a kind of side conference after the spokesman has gotten through with this more formal press conference, the Panthers complained to Mr. Pappas that the news media always covered the side of the police in circumstances such as these.
And on this point, Mr. Pappas said, “Well, that’s because the media are never allowed to show any other side.”
Now it was as a result of these two occurrences that the Panthers then agreed with Mr. Pappas that he would be allowed into their headquarters that evening, to spend the night if he wished, if he came back personally, but there was a condition.
If there was a raid, they said, he would be allowed to report and photograph anything that took place.
On the other hand, if there was no raid, there was no raid, any as he put it anything I saw or heard would be strictly in confidence.
Later that night, after he had been accompanied back to and into the headquarters, these conditions were reimposed.
They were specifically stated again and he again agreed to them.
As a matter of fact there was adverse comment about whether he might not be a police stoolie and he assured them no, he was there as a representative of the press.
He understands he was that if there was a police raid, he was free to cover it.
If there was no police raid, he would keep whatever he saw or heard in confidence.
Chief Justice Warren E. Burger: Suppose right there, Mr. Prettyman that an unexpected event took place then, not the police raid, but suppose some internal quarrel of the group resulted in one of them killing another in his site.
Do you think that pledge of confidence would be protected?
Mr. E. Barrett Prettyman, Jr.: I think the privilege would come into play.
I think that in the subsequent hearing, on whether they were overriding public interest in the production of his testimony, it might well sway the Court that he saw during the period of confidentiality and privilege and of that which was so vital to the public interest that he should be required to testify, anyway.
Chief Justice Warren E. Burger: Let’s reduce the crime now, instead of the killing, just a serious injury, same procedure?
Mr. E. Barrett Prettyman, Jr.: This is precisely, Your Honor, why we suggest to you that there must be a balancing test and this is one of the factors that undoubtedly a judge would take into consideration in determining where the balance lies in this particular case.
How serious was the event that he saw?
Was there any other source for getting the information?
What was the public interest in it? Did he in fact have the relevant information, and so forth.
These are the very factors that a Court would consider in determining whether he should be made to testify.
Chief Justice Warren E. Burger: Would you say the same result would obtain if while there, he observed the packaging or processing heroin from the raw state to street sale state?
Mr. E. Barrett Prettyman, Jr.: Precisely.
So long as he was there and this occurred during the period when the privilege was in effect.
Now, the period here, we must remember went into effect when he went into the headquarters, not beforehand.
And up until the time that there was a police raid, when all restrictions were on.
If anything occurred inside there, then that was privileged but the Court might well find, in a given circumstance, that the public interest overrode the privilege, as it does any --
Chief Justice Warren E. Burger: What does that do to his credibility with these people, I suppose --
Mr. E. Barrett Prettyman, Jr.: Your Honor, I think the relationship of confidentiality that can come into effect for any number of reasons.
I can only say here that while he apparently, so far as the records shows, did not have a long acquaintanceship with the people.
There obviously was something about his demeanor and his seriousness at the time of the press conference which made them believe that they could trust this man.
They did not give the same privilege to the other five newsmen who were present.
Justice Byron R. White: Mr. Prettyman, I take it then that you say that the balancing goes on, on an ad hoc basis in each particular case, on a specific factor of this case?
Mr. E. Barrett Prettyman, Jr.: Yes, sir.
Justice Byron R. White: Without any general rules or standards?
Mr. E. Barrett Prettyman, Jr.: General rule that I would lay down, Mr. Justice White is that there is a privilege and that there is a presumption that the newsman is protected and then and only then can the Government come in with its burden and attempt to carry it by showing the various of elements that we have outlined in our brief.
Justice Byron R. White: Well, what you would require, shall they say we need this evidence to prove a crime, the packages of heroin or the making of bombs or murder, or something like that.
Mr. E. Barrett Prettyman, Jr.: Well, let me emphasize.
First of all, that there is absolutely no evidence in this record of any crime occurring during these three hours.
I want to make that clear, because this is not a criminal case.
Secondly, assuming that there was a crime then I would say that they have to show that the Grand Jury is investigating a specific crime.
I would say they would show that he had at least probable cause to believe that he had information relating to that crime.
Number three, that there was no other available source for receiving, obtaining the same information.
And finally, that there was, as this court put it in Gibson, an overriding interest on the part of the public in obtaining that information.
Justice Byron R. White: Well, on that matter, the point -- just a necessity to make the criminal case wouldn’t be automatically enough, would it?
Mr. E. Barrett Prettyman, Jr.: No sir.
In my view, it would not.
Justice Byron R. White: Well, you’d have to distinguish between crimes.
Mr. E. Barrett Prettyman, Jr.: I do.
I confess that a rule could be fashion that wouldn’t.
In my own view, I think for example to take the Branzburg case that it’s more vital that the public know that a youngster can get a drink in that community, far harder that he can get pot.
He can get pot virtually by asking for it and then, he can’t get a drink.
I think it’s more important that the public know that and that those boys be prosecuted.
On the other hand, I can well see that in a murder case, in a desperate crime situation, that the interest might apply other way.
Justice Byron R. White: But I suppose if you’re going really to achieve your purpose of maintaining the flow of information.
The -- there must be some predictability involved in applying these rules you’re suggesting.
And I just wonder if the rules you suggested would allow any person who was worried about disclosure to predict whether a reporter’s claim and privilege would be respected or not, in this particular case, on an ad hoc case to case balancing?
Mr. E. Barrett Prettyman, Jr.: Your Honor, I think there’s the same degree of predictability as there is in a prior restraint case.
There -- in a prior restraint case you do have your exceptions, but the fact is, that a 99% of the cases, there can be no prior restraint and here I would say that the predictability comes because a 99% of the case, the privilege stands and the prosecutors know that and they’re not going to issue the subpoenas unless --
Justice Byron R. White: You mean, it's just sort of an odd thing, I mean it’s much more likely that not that the privilege would be respected in none of the cases.
Mr. E. Barrett Prettyman, Jr.: It has even without privilege in many instances before, as was pointed out this morning.
Justice Byron R. White: The situation without some Constitutional privilege.
Mr. E. Barrett Prettyman, Jr.: I am afraid Your Honor that if the privilege was stricken we would --
Justice Byron R. White: Stricken?
Mr. E. Barrett Prettyman, Jr.: We would [Laughter Attempt] if it was not allowed, [Laughter] we would have --
Justice Byron R. White: Yes, but –-
Mr. E. Barrett Prettyman, Jr.: We would have a more serious situation.
Justice William H. Rehnquist: Mr. Prettyman, do you say that one of your standards is that if a Grand Jury must be investigating a specific crime that sounds simple, but I think if to me that imposes some problems.Supposing you have a Grand Jury convene to say investigate an ambulance chasing ring with police participation as they recently had in Chicago or a widespread graft and corruption among officials?
And I take it at the outset of that investigation you can’t say that any -- there is probable cause to indict any particular individual.
You are not even sure a crime was committed.
Would that come within your definition of a specific crime?
Mr. E. Barrett Prettyman, Jr.: Your Honor, if you will look at the Caldwell subpoena you will see specific crimes set out that the Grand Jury were investigating.
On the other hand, if you would turn to our single appendix, on the first page, you will see that the subpoena orders Mr. Pappas to appear and there to give such evidence as he knows, relating to any matters, which may be inquired of or on behalf of the Commonwealth before said Grand Jury.
Now, the Masters of Supreme Judicial Court has said that Mr. Pappas carries a burden to show that the Grand Jury inquiry is improper or oppressive.
I would like anyone to tell me how we can show that this is an improper or oppressive Grand Jury inquiry when we don’t even know what in the world they’re investigating.
Justice William H. Rehnquist: Well, what then is your answer to my question?
Mr. E. Barrett Prettyman, Jr.: My answer is that while it’s quite true that in many instances the Grand Jury will go from one crime to another or will go from suspicion to fact that where you have First Amendment privilege involved, the heavy duty involved in the prosecution in trammeling on that privilege that there, there is a duty to indicate that kind of situation that they’re inquiring into.
As a matter of fact, if you don’t do that, you’re not even sure whether the privilege covers the precise situation that you're looking into.
For example, if I might just -- if it turns out that what they are really investigating here was something that happened on June 8, when these disorders apparently were going on as opposed to July 30, that would be an entirely situation and if they were looking into something which they think happened during the three hours that he present in the headquarters.
I think, there’s a duty and a burden upon them to come forward with an indication of what it is that they’re investigating.
Justice William H. Rehnquist: Well, supposing they do come forward and say that we’re investigating allegations of an ambulance chasing rocket with police connivance and violations, which could be violations of several State statutes and say no more than that.
Does that meet your test to the specific crime?
Mr. E. Barrett Prettyman, Jr.: If they cited a statute that they said was violated and gave a period of time and a place when it was suppose to have occurred, I would say yes, it would meet my definition.
I would like to point out here, just by way of example that the Massachusetts Supreme Court took judicial notice of the fact, there was gun fire, but they never said when, where, by whom, and certainly didn’t say that it had taken place during the three hours he was there.
This is a kind of danger I don’t think you run into if you don’t have some specificity in regard to subpoenaing newsman before a Grand Jury.
Justice Thurgood Marshall: Mr. Prettyman, is that the normal subpoena in Massachusetts in that general language?
Mr. E. Barrett Prettyman, Jr.: It’s my understanding that while sometimes they are more specific that this --
Justice Thurgood Marshall: It’s no --
Mr. E. Barrett Prettyman, Jr.: This is in -- as a matter of fact it is on a form, Your Honor, because it has a --
Justice Thurgood Marshall: Well, that’s what I assumed --
Mr. E. Barrett Prettyman, Jr.: Yes, it has -- as you’ll see it has a blank space said, blank or the Grand Jury and --
Justice Thurgood Marshall: But why, I was thinking was it under that, must I cast question in asked in the first case?
In Massachusetts, everybody, including those with privileges, like attorney-client, physician-patient, everybody else with that general subpoena would have to go except the newsman.
Mr. E. Barrett Prettyman, Jr.: Your Honor, it was not argued below in this case, that the man did not have to appear before the Grand Jury.
I would point to you however, that if there was ever a case, where his appearance would be a useless act, it would be this one, for this reason.
Justice Thurgood Marshall: Well, that’s not my point.
My point is they might be wanting to question him about a homicide by an automobile which he happen to witness on his way to work.
Mr. E. Barrett Prettyman, Jr.: But, that would not have been received in confidence Mr. Justice.
Justice Thurgood Marshall: Well, I mean, but -- if he was a newspaperman he wouldn’t go.
Mr. E. Barrett Prettyman, Jr.: No sir, I quite disagree, he would go.
And he would be required to give testimony like anyone else.
Justice Thurgood Marshall: Well, suppose on this day, he went there and told the people, whatever you say, I’ll keep it in confidence.
And the next day, he witnessed the (Inaudible) and he gets this general subpoena.
Then he looks I understand the opposition say he moved up.
Mr. E. Barrett Prettyman, Jr.: No, no I was raising the generality of the subpoena only in relation to the specific confidentiality that has been imposed upon him.
What I say is that in view of the fact that once the confidentiality is imposed, you therefore run right smack into your First Amendment problem, that the ordinary duty of the Commonwealth to simply order a -- to issue a general subpoena, must go by the boards, because then, since your entrenching on First Amendment rights, they have got to be more specific and carry more of --
Justice Thurgood Marshall: But why does he have to be more specific about this automobile accident with the reporter than with anybody else?
Mr. E. Barrett Prettyman, Jr.: Because, the judge is going to have to make a decision --
Justice Thurgood Marshall: Why?
Mr. E. Barrett Prettyman, Jr.: Balancing the various interest as --
Justice Thurgood Marshall: Why?
Because he is a reporter.
Mr. E. Barrett Prettyman, Jr.: Because, Your Honor, he is obtaining information for the public --
Justice Thurgood Marshall: No, no.
This is a reporter, who has confidential information in an entirely different situation he witnessed a crime merely because he is a reporter you have to give him some kind of a hearing.
Mr. E. Barrett Prettyman, Jr.: I think you have to give him a hearing, because --
Justice Thurgood Marshall: Merely because he is a reporter.
Mr. E. Barrett Prettyman, Jr.: Merely because he is part of the press, protected by the First Amendment, who has received information in order to get a dissemination of information to the public and without this kind of showing.
Justice Thurgood Marshall: But how does the Grand Jury know that he’s got this confidential information, in my case?
Mr. E. Barrett Prettyman, Jr.: He is asserts it in the same way that a Grand Jury doesn’t know that a fellow is going to play the bet until he plays it
Justice Thurgood Marshall: Let’s get at the facts right now.
He’s got confidential information and he witnessed the crime, two separate things.
One was in Boston and one was in Cambridge (ph).
And, he gets his subpoena, he come to the Grand Jury and he said, “Uh, uh, solely because I am a reporter, now go, you got to tell me what you want.”
Mr. E. Barrett Prettyman, Jr.: Your Honor, if I understand your question correctly, what he saw was not protected by the privilege, because he did not receive it in his direction.
Justice Thurgood Marshall: That’s right, --
Mr. E. Barrett Prettyman, Jr.: And he stands in the shoes of any other man.
The problem arises only, when as a newsman in an attempt to gather, edit, analyze, write and disseminate information to the public --
Justice Thurgood Marshall: He hadn’t printed that yet.
Mr. E. Barrett Prettyman, Jr.: Well, yes.
Justice Thurgood Marshall: So nobody knows he’s got it.
Mr. E. Barrett Prettyman, Jr.: Well, the fact remains Your Honor --
Justice Thurgood Marshall: And then he still -- he gets different treatment on the subpoena.
Mr. E. Barrett Prettyman, Jr.: Yes, sir.
Justice Thurgood Marshall: That’s problem.
Mr. E. Barrett Prettyman, Jr.: Yes, he does Your Honor, and I can only reiterate that the privilege comes into effect when he is obtaining information in confidentiality from sources which busted the confidentiality, he would never receive his story and the public would never receive the story.
Let us take this particular case for example, let’s assume there had been a police raid this night.
The fact of the matter is that the police raid would never have been covered from the inside, except for this agreement of confidentiality.
The public would never have received the story about that police raid from anybody’s viewpoint other than the police.
Now, it so happens that the Panthers wanted their side, at least told for once not in a prejudice sense, but to have somebody not just take the word for the police as to what had happened.
And they noticed they paid no restriction upon him in regard to his reporting of the police raid.
You are free to report it anywhere you want to, to photograph anything you want to.
Justice Thurgood Marshall: Which is to -- I may add to my point, let’s be really specific.
A newspaperman and I both see a crime.
Can I get a Grand Jury subpoena, only thing I am obliged to do is to go and the newspaperman doesn’t have to go.
Mr. E. Barrett Prettyman, Jr.: No, Your Honor.
Justice Thurgood Marshall: Solely because he’s newspaper.
Mr. E. Barrett Prettyman, Jr.: Well, I can only --
Justice Thurgood Marshall: Is that your position?
Mr. E. Barrett Prettyman, Jr.: No, sir.
Unless he received the information in confidence and were in the instance that you posed you did not say that an element of confidence was imposed upon.
Justice Thurgood Marshall: Well, did newspaperman received information in confidence, which he never probably publish to any place?
Mr. E. Barrett Prettyman, Jr.: Alright, now there is a lot of information, Your Honor, which in this --
Justice Thurgood Marshall: Well, I knew, does the fact that he has this information or the fact that he’s a newspaper reporter?
That’s my only point.
Mr. E. Barrett Prettyman, Jr.: Can I draw this distinction for you?
A reporter goes to a public press conference by the President of the United States.
He is there like any other reporter, no confidence applies -- confidentiality applies.
He, like a reporter, he’s like everybody else, except that he is reporting, the story goes out.
The next day, the President calls the reporter in and he says, “I would like this off the record, but I’m not sure that you fully understood the point that I was trying to make and I want to give you an in depth look, so that in your future reporting, even though you do not report what I said that you will understand and have a depth of knowledge about this that will make your reporting to the public more meaningful” and he therefore gives him a story.
Now, I say, without relevance to the presidency, I say that the confidentiality having been imposed that the only way a Grand Jury is going to get out of him what the President had told him is if it showed an overriding public need for that information, because the element of confidentiality that establish --
Justice Thurgood Marshall: I have to ask for that in my case, I just want -- talking about this crime.
Mr. E. Barrett Prettyman, Jr.: Well, I am sorry if I haven’t satisfied you, I --
Justice Thurgood Marshall: So, my whole problem is, if the procedure that you sit on is something in addition to what we’d normally have in the judicial presence.
Normally, when you get a subpoena for Grand Jury you can move to quash, that’s about all you can do or you’re going to go into a jail, right?
Mr. E. Barrett Prettyman, Jr.: That’s right.
Justice Thurgood Marshall: But, the newspaperman according to you doesn’t have to move to quash.
Mr. E. Barrett Prettyman, Jr.: Only if he has information, which he received in confidence, perhaps we can -- perhaps I can satisfy you by analogizing with the Fifth Amendment.
You and I both go before the Grand Jury, but it so happens I am implicated in the crime.
Now, we are both are obligated to testify, in the sense that we both saw the same thing.
But, the fact is that as soon as I plead my Fifth Amendment right, I can then have a Court determine whether I am properly pleading it.
When I come out of your category, and I am separate from you.
I am distinct, because the constitution coverage --
Justice Thurgood Marshall: No, you aren’t distinct in going into the Grand Jury room.
We both go into the Grand Jury room.
Mr. E. Barrett Prettyman, Jr.: Can I put the appearance before the Grand Jury to one side, because the problem is that I -- we did not argue this below.
And while I do want to say that since the only information that the Grand Jury is apparently seeking is the information that he acquire during the three hours of confidentiality.
Justice Thurgood Marshall: And you say that if they ask him about the crime, he would of course testify to it.
And I would require the most -- apart from that.
Mr. E. Barrett Prettyman, Jr.: Oh!
Justice Thurgood Marshall: He would testify.
Mr. E. Barrett Prettyman, Jr.: Absolutely.
Justice Thurgood Marshall: Well, that’s where I didn’t understand your prohibition to be.
Mr. E. Barrett Prettyman, Jr.: I am sorry, I didn’t make that clear.
Unknown Speaker: You don’t really, in your case, Mr. Prettyman, you have to take the position at all that he had a right not to appear.
Now, I understand that if you support the Caldwell holding and you had cleared us that you do.
But, the facts of your case don’t require you to if this were the only case here?
Mr. E. Barrett Prettyman, Jr.: That’s correct.
I think --
Unknown Speaker: Because your man did up here and he did answer questions as to his name and occupation and so on, and it was only plan they got to this to the interrogation about what had happened inside the headquarters, that he said, “I refuse to answer.”
So during the facts of your case, that’s where we now are.
Mr. E. Barrett Prettyman, Jr.: That’s correct.
I do think I’d be misleading you if I didn’t make two points about it though, number one, is that it would be a total useless act for him to appear and I am not in favor of putting the man at the Grand Jury room for a totally useless act.
Unknown Speaker: But he did appear.
Mr. E. Barrett Prettyman, Jr.: He did appear once, correct.
The other point --
Unknown Speaker: He did respond to the subpoena, is that it?
Mr. E. Barrett Prettyman, Jr.: Correct.
The other point is that in view of what the Caldwell Court said about the Black Panthers that would be equally applicable here, that is if he disappeared again in to the Grand Jury.
Well, it might be that a number of things could happen, including his personal safety, as he testifies.
Unknown Speaker: But, he has done it once.
He did do it; it’s not part of it -- not necessarily part of your case.
Mr. E. Barrett Prettyman, Jr.: He’d do it once.
Chief Justice Warren E. Burger: Mr. Prettyman, I’m not sure I track the analogy that you introduced about off the record background news conferences.
Was it your position that if -- let us say a Congressional Committee took it away from the court for a moment and call this newspaper reporter and said, what the President or some else, some other public official say to you in this background conference?
He would have the same kind of privilege not to dispose it?
Mr. E. Barrett Prettyman, Jr.: Your Honor, when we get away from the Grand Jury, there may be other considerations applicable and I am not attempting the day to set down a set of criteria for trial [Voice Overlap] legislature--
Chief Justice Warren E. Burger: Well, in its fullest and so bring it back into the Grand Jury then.
Mr. E. Barrett Prettyman, Jr.: But -- yes, that’s absolutely right.
What happens, as we see it is this, that when he’s called before the Grand Jury and the questions begin about -- well, as in this case, what did you see and hear during your three hours in the headquarter?
Did you see ammunitions?
Chief Justice Warren E. Burger: I am kind to stay over on the analogy and the background press conference because you seemed, I thought to rely on some analogy.
Mr. E. Barrett Prettyman, Jr.: Alright, let’s take the --
Chief Justice Warren E. Burger: Now, the Grand Jury says, what did the Secretary of State or someone else say to you in that background press conference, privilege?
Mr. E. Barrett Prettyman, Jr.: Recognizing that there may be some distinctions between a legislature and so forth or you now posed to the Grand Jury.
Chief Justice Warren E. Burger: No, Grand Jury.
Mr. E. Barrett Prettyman, Jr.: Alright, the privilege applies and then what happens is he refuses to answer the question and he goes before the judge.
If the prosecutor persist, my feeling is, the prosecutor wouldn’t have called him in the first place or won’t persist if the Court rules the right way.
But, in any event, he goes before the judge and the judge says, as he did in this case, Pappas was asked questions and he told the circumstance under which the press conference, he told the circumstances of his specific agreement, how he went in, how he was made the promise again, and how he came out.
Then, the Judge having satisfied himself that in fact a confidentiality was imposed upon him, that he is in fact a newsman during the course of his employment then I would say that the judge then turns to the government or the state and says, “Alright, if you persist, you now have the burden, because of the First Amendment situation, you now have the burden to prove various factors.”
What are you investigating?
What do you think he knows about it?
And, have you gone every else to tie to get the same information.
What is really the overriding need for this information in this case?
Now, this is not unique Your Honor, because this is going on right now, down in the lower courts, its happening, we have cases in our brief, Dorn and Rios and a lot of others where Courts are doing this exact thing.
The fellow who refused to answer the question, the Court will take him in and he’ll say, “I find under this circumstances that you're interest is not sufficient in view of the First Amendment Privilege and therefore, the subpoena is quashed.
Chief Justice Warren E. Burger: I’m afraid I’m confused now about that analogy to the background press conference or the off the record.
Perhaps, I am duly influenced by what we all do, read the newspapers.
I thought the press had taken the position now that they would not accept backgrounder off the record statements under any circumstances.
Mr. E. Barrett Prettyman, Jr.: No sir, that was -- the Washington Post did that and the New York Times issued a set of instructions by which they use a great deal of care in discretion as to the extent that they will accept backgrounders.
But this is not true of newspapers in general and even with the New York Times, it’s not completely true.
I think you’ll find that confidences at every level and particularly the governmental level, and particularly in regard to minority and radical groups today, as Professor Blasi’s report well demonstrate that the confidentiality plays an absolutely vital role in the gathering and dissemination of information, absolutely essential.
And Mr. Justice Marshall, you indicated that the ordinary man would have to appear in circumstances as we’ve outlined.
The American Law Institute Model Code of Evidence allows the following people not to appear.
There is of course self-incrimination.
The attorney, the priest, the physician, the spouse, religious beliefs can’t be in part in political votes, trade secrets, state secrets, official information, communication --
Chief Justice Warren E. Burger: Well, don’t they have to come and test -- don’t they have to come at least to appear, Mr. Prettyman and then assert the privilege?
Mr. E. Barrett Prettyman, Jr.: Your Honor, I thought I put that to rest, in the sense that while I do believe that Mr. Pappas should not be made to appear.
I have to concede that it was not argued below, you understand --
Unknown Speaker: You’re not saying here that this class, the people don’t have to appear, you say, they may not have to testify?
Mr. E. Barrett Prettyman, Jr.: No.
The argument has been made by Massachusetts and perhaps suggested by the justice that the ordinary person has to turn up and testify and that we’re carving out of that, out of this inviolate right of the Grand Jury, some special case were newsmen and all I’m showing it --
Unknown Speaker: And that has a prosecution?
Mr. E. Barrett Prettyman, Jr.: Correct, that’s absolutely correct.
Unknown Speaker: That many of them at that status -- in other forms?
Mr. E. Barrett Prettyman, Jr.: Some are common laws, some by statute?
In Massachusetts there was a list, which I won’t read, but which is quite similar to the one I’ve just read.
For example like, physician doesn’t have a privilege, but a psychotherapist does.
I mean, there are all kinds of exceptions that people have right now.
So the only point I’m making on this that, is that it isn’t as if we are saying the newsman is the only one out of the population who doesn’t have to turn up to testify.
Justice Thurgood Marshall: But the physician has to testify to the crime he himself committed?
Mr. E. Barrett Prettyman, Jr.: I’m sorry, I didn’t hear you.
Justice Thurgood Marshall: The physician would have to testify as to the crime he himself committed?
Mr. E. Barrett Prettyman, Jr.: Well, I think it depends upon his relationship with the party who was injured.
Justice Thurgood Marshall: Well, the crime was committed by two strangers doing.[Voice Overlap]
Mr. E. Barrett Prettyman, Jr.: Yes, I would certainly assume.
That is correct.
And, that is the point --
Justice Thurgood Marshall: Except the ordinary person, it’s everybody except the President of the United States and the reporter, right?
Mr. E. Barrett Prettyman, Jr.: [Laughter] But Mr. Justice the distinction between the physician is precisely the one I was trying to make a few minutes ago.
Justice Thurgood Marshall: I agree with my Brother Stewart, I don’t see why you keep on arguing that point with your case [Laughter].
Mr. E. Barrett Prettyman, Jr.: I wonder if I can get to the point of Mr. Justice Stewart made in the Branzburg case about speech versus the press.
Mr. Justice, I think if these were essentially the same interests.
If they were equally protected, there would be no need for any reference in the press, in the constitution to the press as such.
The press privilege would be covered by the speech privilege.
I think that the speech privilege is not as broad as the functioning process by which the press operates.
To put it in another way that the press right is more than a right to speak.
The mere right to speak without being able to obtain information, for example would be a meaningless one.
Speech normally involves an individual or a group attempting to express their individual view.
The press covers the entire spectrum of dissemination not only the views of news, people, and individuals, but the gathering and analyzing and publishing over the whole wrap of news that gets before the public.
I think that our founding fathers recognized that it’s one thing just to speak out but that is also vitally important to get the widest possible range of information before the public.
And the way to do it is through a free and untrammeled press.
Unknown Speaker: My question didn’t suggest that they were equivalent rights, but only that they were equally protected.
Mr. E. Barrett Prettyman, Jr.: Well, I think that there are situations where they will not be equally protected.
Unknown Speaker: [Voice Overlap] the statute.
Well, I don’t think you mean that.
They are equally protected, but you said they’re not equivalent rights.
One is a broader right.
Mr. E. Barrett Prettyman, Jr.: Perhaps that’s a better way of putting it, Your Honor.
Chief Justice Warren E. Burger: Well, since you distinguished them, and where would you put television, speech or press?
Mr. E. Barrett Prettyman, Jr.: Well, I think television is equally covered with -- certainly encompassed within the press function.
The Court has recognized that radio is.
The lower courts have recognized the television is.
As a matter of fact, if anything, there should be more of a right rather than the last one because the figure shows that as compared with the largest daily newspaper’s circulation is some 2 million.
CBS Daily News, in the evening has 9 million viewers so that the impact is far greater on news dissemination in the television than even the press.
I think it’s clearly covered within the privilege.
I would like to get back, if I might to the --
Unknown Speaker: You would apply the same privilege; I take it to the trial?
Mr. E. Barrett Prettyman, Jr.: Your Honor, the point I made a little while ago was that when we get the trials and we recognize that all three of these cases are Grand Juries, we have the element of secrecy; we have the element of merely trying to determine whether there -- whether someone should be indicted and so forth.
There might be slightly different considerations that the trial effect takes into consideration in balancing in a trial.
Unknown Speaker: The same rule?
Mr. E. Barrett Prettyman, Jr.: But the privilege would applied, would come into effect and the only way the difference would be is to trial compared with Grand Jury would be as to whether it might be more important in a particular trial to have his testimonies in the Grand Jury.
Otherwise, I think probably the same applies.
Unknown Speaker: I’ve already questioned, your arguing somebody else’s case and now I’m going to ask you, did you refer to the Caldwell case in a trial, the rational for the Ninth Circuit’s decision in Caldwell just wouldn’t exist, would it?
Mr. E. Barrett Prettyman, Jr.: In terms of his appearance before the Grand Jury, that’s correct.
Unknown Speaker: Yes, because he’ll be appearing in a room, open to the public and everybody would know whether or not he spilled the beans.
Mr. E. Barrett Prettyman, Jr.: Absolutely, yes.
You recognized that even under the District Court order in Caldwell, this case has to be reversed.
The State did not put on a single witness.
It gave no testimony.
It offered nothing of any way at the hearing.
The only witness was Mr. Pappas, who established the confidence.
The State not only carried no burden, but Massachusetts said it did not have to.
That there was no right to be recognized and consequently, the State carry no burden and it said that if we want to prove that the Grand Jury was oppressive in some fashion we would have to do that.
But again, since we are totally at a lost to know what it is that they want and why, it’s impossible for us, obviously at this stage to prove that this Grand Jury inquiry is oppressive.
There’s not a word, not a word or testimony or evidence from the State to prove anything here.
All we have is a simple subpoena in the general language that I’ve indicated to you.
And in this regard I’d like to relate -- just a moment to relate an incident in the Guest and Stanzler argument, because to me it drives on the importance of what we’re talking to here.
Eugene Patterson of the Atlanta Constitution told of an instance where his paper did an exposé on narcotics in the Georgia State Prison system.
They got the information from a doctor who had worked there and who insisted for obvious reasons that his information be kept confidential.
The paper published the exposé and immediately a Grand Jury was called.
The Grand Jury wasn’t investigating the narcotics in the Georgia Prison System.
The Grand Jury want to know the doctor’s name and the publisher refused to produce the doctor’s name.
And at the last minute, so as to keep him from going to jail, the doctor revealed his own name and the Grand Jury was dismissed.
Now, that is the kind of thing that we face here if you allow Grand Juries without any sanctions at all, any control, any burden on the Government, simply to subpoena someone at will who has received confidential information as part of the press, part of its duty to disseminate news to the public.
I’m not for a moment condemning Grand Juries in general or prosecutors in general.
All I’m saying is there are too many instances of abuse in the past and potential abuse for the future where a newsman can be called as retaliation for a particular story, as a warning not to go to the Black Panther headquarters next time, for political reasons or for anything else.
Unknown Speaker: Would it in your view of the privilege, would it ever expire?
Let us assume the reporter said, “I have no more news to report about this particular group or activity.
My relationship with the group is over.
Don’t ever expect to get any more news out of that particular situation.
Mr. E. Barrett Prettyman, Jr.: I think --
Unknown Speaker: But there is -- but I do have an area of unpublished news that I promised not to reveal.”
Mr. E. Barrett Prettyman, Jr.: Well, in the first place, I think that the ability to waive is on the newsman, so that if he chose --
Unknown Speaker: Oh!
He could but he chooses not to.
Mr. E. Barrett Prettyman, Jr.: Alright, if he chooses not to, I think the privilege extends --
Unknown Speaker: Although he couldn’t argue that by withholding this amount of news, I am going to get some more news out of it.
And he says, I never to expect to get anymore out of it.
Mr. E. Barrett Prettyman, Jr.: Well, Your Honor that’s a large assumption and I am not sure you can make that.
The point is that having received something in confident and then having an effect broken the confidence later, I think that that newsman’s effectiveness could well be [Voice Overlap].
Unknown Speaker: Well not only with that circle with others, you are saying?
Mr. E. Barrett Prettyman, Jr.: Absolutely, and his whole ability to gather news from whatever group.
Chief Justice Warren E. Burger: Mr. Prettyman, going back to your prior statement about the “bad Grand Jury conduct” down in Georgia or some place.
Do you suggest that the Court can engage in constitutional adjudication on a very important matter on the basis that some Grand Juries sometimes abuse their powers?
Mr. E. Barrett Prettyman, Jr.: I think that the Court can establish a rule that when a reporter, part of the press protected by the constitution receives during the course of his news gathering duties, information in confidence that that brings the First Amendment into play and he is protected --
Chief Justice Warren E. Burger: Oh!
That doesn’t quite get to my question.
You seemed to place great weight on the fact that one Grand Jury that you recited abused its powers and I would assume it’s true that Grand Juries do.
Is that a basis for constitutional adjudication?
Mr. E. Barrett Prettyman, Jr.: Well, but Your Honor, I think in a whole serious of cases the Court has done precisely that.
I think in Lamont, Bantam Books, Bates, Dombrowski, Talley what the Court has done is not to say that in this particular instance, there has been a suppression of a First Amendment right.
I think what the Court has done in those cases is to say that if you are going to engage in the type of governmental interference involved in those cases, it is gong to have a future chilling effect.
And therefore, I think it is incumbent upon the Court to look about, look not only to the instant case but to look at the kind of abuse that could be inherent in a refusal to recognize the privilege.
I think certainly, it can look to what is likely to happen if you do not establish the privilege here.
You got to remember, we’re not trying to set a set rule here which a newsman can for all time and under any circumstances simply assert privilege and go home.
If he asserts it without warrant, if he asserts it then the situation he is not entitled to, that can be determined by Court and that’s the kind of adjudication that’s constantly going on in all kinds of cases.
But, yes I do think that in determining chilling effect affect for their future that the Court can look at what might well go on.
In the case, for example, where the statute recall -- attempted to make a pamphleteers name and address appear on the pamphlet, the Court didn’t say that in that particular instance, it would hurt the individual.
It said that that would detour people in the future from engaging in this kind of First Amendment exercise of rights.
Yes, I do think, absolutely that you can look at the kinds of abuses that not only have occurred but might likely occur.
Justice William H. Rehnquist: Mr. Prettyman, in the Georgia case which you mentioned and about which the Chief Justice’s questioned you a moment ago.
If it is demonstrable that the Grand Jury simply is not investigating any criminal activity or any legitimate act, might it not be that all persons including reporters would have a privilege against testifying in that situation that that might not depend on a peculiar reportorial privilege.
Mr. E. Barrett Prettyman, Jr.: If it was totally demonstrable that the Grand Jury was acting in an oppressive manner, it would fall even under the Massachusetts rule, but I’d like to point in that case that it wasn’t demonstrable until the Grand Jury, as soon as they got the doctor’s name dismissed.
It was dismissed.
It wasn’t until it was all over and until then, from the surface it apparently looked as if they were investigating narcotic.
But the first question was who told you that?
And as soon as the name came forward, that was the end of the Grand Jury.
How you would ever demonstrate that in advance, I don’t know Mr. Justice.
If I could save the few minutes for rebuttal --
Chief Justice Warren E. Burger: Very well Mr. Prettyman.
Argument of Joseph J. Hurley
Mr. Joseph J. Hurley: Mr. Chief Justice and may it please the Court.
May I say at the outset that in my view there’s no question here whether a newsman’s confidences are going to be protected or not.
The real question is to what extent and how, by what means, and in what circumstances?
I do say however, with respect to the contention that Mr. Pappas makes that as I understand his contention, a newsman merely by virtue of being a newsman, as an indispensable part of his job, if you will, must be given the privilege not to give evidence that he has acquired about a crime, because he has acquired it “in confidence” and that the reason for this privilege and the reason it arises to the constitutional level is that without this privilege, there will be substantial interference, substantial impairment of the right of free press.
Now, the Commonwealth position is with respect that this Court is not in a position to rule as Judge Zirpoli found in the District Court opinion in Caldwell that it is indispensable that a newsman, all newsmen under all conditions have this privilege, qualified though it maybe, that it is essential to the operation of a free press that newsmen have this privilege.
I submit that unless this Court can rule that such a privilege is indispensable to the operation of a free press, this case does not rise to the constitutional level.
And it then becomes a matter at least so far as the State Courts are concerned for the States to determine whether and to what extent newsmen will be privileged whether it’s a qualified or an absolute privilege not to disclose evidence of crime if they have obtained in confidence.
A matter, in other words, for legislation in the States and absent legislation, a matter for the same judicial protection afforded to any citizen against improper, oppressive, unreasonable inquiry, whether it be by a Grand Jury or whether it be on the witness stand in the course of a trial.
I think I should state a few additional facts of the Pappas situation because some of the facts that my brother has given, I think may alter my view of the legal problem involved here.
And particularly the point as to the terms and conditions under which Pappas entered the Black Panther headquarters on this night.
And my brother stated, if I understood him correctly, that the agreement was that Pappas would be allowed into the Black Panther headquarters with the understanding he would report nothing, except a police raid and then if there were a police raid all bets were off.
And if my brother meant that it’s his understanding that the agreement was that if there was a raid, any question of confidence ended, I submit that’s not what the record shows.
And I think this difference is important for this reason.
I say the record shows clearly that what Pappas agreed to do was to keep in confidence, not to report anything he saw or heard inside that headquarters on that night except a police raid.
In other words, what Pappas was agreeing to do is not the ordinary newsman confidential source situation.
What Pappas was agreeing to do was to silence himself as to event “A”, namely what might go on inside that headquarters other than in the course of a police raid, as the price of a possible story about event “B”, the police raid.
What I’m really saying is, that if this Court should disagree and rule that it is indispensable to a free press that a reporter have such a privilege then certainly the Court should rule that that privilege does not extend to a situation where a reporter seals his lips, not for the purpose of getting information, which he is going to use in one way or another as a reporter, but where he silences himself as the price of a story.
Because I submit the two are substantially different.
In the second situation, the situation that existed here is almost like the situation postulated by Mr. Justice Marshall, the reporter who sees a crime merely as a witness and not as a newsman.
Unknown Speaker: Is this case, in other words General Hurley, differs from the other two and that you understand the record Mr. Pappas promised not to write any newspapers stories or anything else, even changing identities and so on, just not to write any newspaper stories at all.
Mr. Joseph J. Hurley: He agreed, Your Honor --
Unknown Speaker: By contrast to the other two cases where it was a publication of newspaper stories that triggered apparently the Grand Jury investigation, right?
Mr. Joseph J. Hurley: That’s right Your Honor, he agreed --
Unknown Speaker: And nothing was in fact ever written about that.
Mr. Joseph J. Hurley: No, nothing was ever written.
Unknown Speaker: What happened?
Mr. Joseph J. Hurley: There was no raid he never did --
Unknown Speaker: And he did from inside then?
Mr. Joseph J. Hurley: He never did write anything, that is true Your Honor.
That is true.
Chief Justice Warren E. Burger: Would you analogize this tour that he was getting as a sort of visual backgrounder?
Mr. Joseph J. Hurley: Backgrounder?
I would say no, Your Honor.
I would draw a distinction, suppose Pappas had been really writing about the Black Panthers, and as my brother said, for all if the record knows, unlike Mr. Caldwell, Mr. Pappas is certainly not an expert on the Black Panther.
I don’t say that to disparage him but merely to point out a fact.
But let’s suppose he were engaged in becoming an expert on the Black Panthers, and he said, “Look, let me in and let me find out what you people really do in there and I won’t report it, but it will be useful to me.
I want to find out your side.
I want to be able to report your side, not specifically what goes on in here but just to enrich my understanding of the Panthers, as background.”
If he had done that, I would not be making the point I am now making.
But he didn’t and I think it’s important to keep that in mind.
I would also like to develop just somewhat more -- the fact situation because a suggestion has been made not so much perhaps in my brother’s oral argument as in his brief and reply brief that there may be some suspicion here as to how seriously motivated this Grand Jury was, whether there was a fishing expedition or possibly politically motivated.
And I would like to point out to Your Honors that the record shows that in New Bedford, in July of 1970, and specifically on the 30 -- on the 30th day of July, Pappas was brought in from Providence because there were fires going on and he himself was told by his own station “they seem to be burning the city down.”
That doesn’t mean that there was a rush of accidental fires, the only inference is there’s something going on.
Particularly, when you couple that with and these are the words his own counsel used at the hearing in the superior court, “There was turmoil there, you went to report on the turmoil, the disturbances, the disorders,” and Pappas said yes.
So, he’s obviously called in, not to report another great New Bedford fire because there’s something in the nature of -- if you will, a riot, a civil disorder going on.
The barricades, they are mentioned.
My brother at one point in his brief wants the Court to infer that these may have been police lines.
Well, obviously the language of the street barricade is not that of the police line, but I think we can infer it from Pappas’ own testimony, in the superior court, as it appears in the record that he tried to get initially to the point where he was told to go for the conference, the Panther Headquarters, and he couldn’t get there because there was a barricade.
That’s not a police line, he left and he reported this fact to his station and was told a few minutes later, “Go back, they will now let you in.”
That’s not the way we identified public authority.
And this becomes even clearer because the statement that was read, which Mr. Pappas did hear outside in the street and did report said in part that they, the area people will let the police into the area, not into the stores, my brother said, but into the area provided they have a search warrant, provided there gentlemanly, provided they bring the press.
Now this is not the language of a police line, there is no question as our Court noticed that there were serious civil disorders, that these involve exclusion of the public from various areas of New Bedford, not by the police.
We were dealing in other words, with a situation amounting to or smacking of anarchy, civil revolution, if you will.
And indeed, well, it’s not in the record, the Grand Jury that questioned or sought to question Pappas did return some indictments against individuals in connection with conspiracy, with weapons offenses.
And Pappas was asked about whether there was ammunition in the Panther Headquarters.
And while I’m on that point, again, I submit to the Court, there could have been no question in Mr. Pappas mind, what he was being interrogated about before the Grand Jury.
It’s true, the form of the subpoena was general, but be -- perhaps it was necessarily general because the Grand Jury was not inquiring into a specific crime, Commonwealth versus Jones, it was looking into a general situation, the disorders that occurred in New Bedford at this time.
And Pappas was asked and did respond, was he there and how he happen to be there in the circumstances and so forth, so there was never any question in his mind that what they wanted to know from him and the questions that he was asked that he refuse to answer all related to what he saw and heard in that Black Panther headquarters in this period of three hours that he was there, there never couldn’t have been any doubt in his mind, certainly at that point as to what the Grand Jury wanted to know from him and the fact that he refuse to answer questions and the indictments I referred to were now crossed by the District Attorney subsequently because of his decision, there wasn’t enough evidence.
And maybe if they had gotten Pappas evidence, they would’ve been enough, but they certainly can’t think of any question in his mind as to what he was being asked about.
So far as the facts are concerned, therefore, I would like to stress them for --
Justice Thurgood Marshall: When we get to decide --
Mr. Joseph J. Hurley: Yes, Your Honor.
Justice Thurgood Marshall: During the time that Pappas was in there, I assume the police authorities knew what was going on.
Mr. Joseph J. Hurley: That he was there and what --
Justice Thurgood Marshall: No, they knew that the burning was going on and the barricades were up and everything.
Mr. Joseph J. Hurley: Yes, Your Honor they did.
Justice Thurgood Marshall: Couldn’t have gotten a search warrant and they found all of that?
Mr. Joseph J. Hurley: I suppose they could’ve.
Justice Thurgood Marshall: Without Pappas?
Mr. Joseph J. Hurley: I think they could’ve Your Honor.
I think what may have been involved is this and I think it may explain why these barricades were permitted to exist.
I think a decision was made and I’m not speaking of any personal knowledge.
But I think that a decision was made, let’s not move in, let’s see if we can work this thing out by discussion and settlement because there were negotiations going on with the groups involved.
Let’s stay back, let’s not put the police in, let’s not have direct --
Justice Thurgood Marshall: What the record -- couldn’t also speculate that they might have decided, well, we saw Pappas go in there, we can subpoena him and find out what’s in there.
Mr. Joseph J. Hurley: I think that’s a possibility, Your Honor.
But I think it is no more --
Justice Thurgood Marshall: That’s the trouble when you get off into possibilities.
Mr. Joseph J. Hurley: I beg your pardon?
Justice Thurgood Marshall: That’s the trouble when you get into possibilities.
But it -- well, it’s not a questionable possibility.
A search warrant could’ve been obtained.
Mr. Joseph J. Hurley: I believe -- I can’t say Your Honor that it could’ve been.
I don’t know that at that point they had enough evidence, truthfully I don’t.
It’s possible they didn’t know but they only suspect it, but there wasn’t enough evidence to get it.
Truthfully I cannot say yes or no.
But let’s assume he did --
Justice Thurgood Marshall: He did appear before the Grand Jury, he did answer questions after that that he said -- we’re given to him in confidence.
Mr. Joseph J. Hurley: He told that he was there and that he made this agreement and then he said, you know, when they started asking about he saw during in the headquarters, he declined --
Justice Thurgood Marshall: And is Mr. Prettyman correct that the Commonwealth put in no evidence to show any basic need for that.
Mr. Joseph J. Hurley: At this point, no Your Honor, I don’t --
Justice Thurgood Marshall: Well, as it -- well, I’m aware, put in any testimony until today on that.
Mr. Joseph J. Hurley: There has -- there's never been any occasions to give any, until today Your Honor and I submit there was no occasion then --
Justice Thurgood Marshall: Why not?
Mr. Joseph J. Hurley: Because of the procedural context at that time.
And what happened was this, Pappas and incidentally, Pappas had already made one appearance, before this Grand Jury, previously and then, when summons begin.
Pappas got the subpoena and there was a motion to quash.
Now procedurally the question before the Superior Court Judge was whether or not Pappas had a privilege, as he claimed, and he claim, there’s no question, he claimed it from the outset, a qualified privilege, not to give his evidence because he was a newsman and because he got that evidence in confidence as a newsman.
The superior court in effect said, “Look, let’s assume that so that there’s no law giving you that privilege,” at least until now and I say, until this day, until this Court acts in these cases.
There’s no law giving a newsman such a privilege, as a general proposition.
And the superior court Judge reported the matter to the Supreme Judicial Court for determination.
There’s no opportunity, there’s no occasion, there’s no need for the Commonwealth to come forward at that point, and say -- well, the issue here is whether or not he’s got a privilege, but we’re now going to put in evidence as to why we need his testimony.
As a matter of fact, Your Honor, with respect, I think the inference that you can draw from all the evidence is, that there was a need.
The situation I’ve outlined, Pappas -- the evidence he is -- was the only non-Panther in the headquarters.
And therefore, I would say that there was no occasion, and there’s still is no occasion for the Commonwealth to meet any burden.
And unless until this Court says, there is a privilege, then there is no burden.
Justice Thurgood Marshall: So the answer to my question is, you did not.
Mr. Joseph J. Hurley: The Commonwealth has not.
Justice Thurgood Marshall: That’s right.
Mr. Joseph J. Hurley: The Commonwealth did cross-examine Pappas.
That is the only extent to which the Commonwealth participated; presented any evidence, yes Your Honor that was true.
But I say there was no need, there was no occasion.
Now, if this Court rules that there is a privilege, then the burden would arise and presumably would be met.
But until that, I submit that there is no occasion for it, there is no burden on the Commonwealth.
Unknown Speaker: General Hurley --
Mr. Joseph J. Hurley: Yes, Your Honor.
Unknown Speaker: Does Massachusetts’ procedure provide for a motion to quash a criminal subpoena on the ground of oppressiveness or burdensomeness?
Mr. Joseph J. Hurley: Yes, Your Honor.
I think that the Court has recognized that in its decision in this case.
Unknown Speaker: And, what Massachusetts’ procedure there re -- supposing some other claim, other than a reporter’s privilege were asserted, would Massachusetts’ procedure require that the State bear the burden or that the person claiming the oppressiveness or burdensomeness bear the burden?
Mr. Joseph J. Hurley: Well, if Your Honor please, I would say this, that the burden is and should be on the one who claims the exemption.
I say that should be true with a newsman or anyone.
Suppose I was subpoenaed, for example, to testify before a Grand Jury in the western part of a State on the matter about which obviously I know nothing.
I think the burden is on me to come to the Court and say, “Look, their subpoenaing me, and I have no knowledge of this situation.
Why do I have to make this trip?”
I think the burden is on me, then, it would be up to the Court, the burden would not shift, but perhaps the burden of going forward would shift to the Commonwealth, why are you subpoenaing this individual?
And I think this is no difference whether it’s a question of invocation of a right to maintain a confidence or that I have nothing to contribute.
I am being harassed.
They’ve got the wrong man.
Our Court recognizes it.
Unknown Speaker: Of course I suppose Pappas’ position is that he did make some sort of a showing of major of burdensomeness or oppressive, and as Justice Marshall points out, the state came back with nothing.
Mr. Joseph J. Hurley: Well, has he made it a showing really Your Honor or has the press at all made a showing beyond the statement that it is necessary that we have this right or our new sources are going to dry up.
I mean Pappas said that.
He said that himself before the superior court judge who heard it.
But it -- does that -- what does that really prove?
I mean, if you will, go beyond the record in this case, and I say there’s nothing really here that proves that there is a need for such a privilege.
But let’s go into the Caldwell affidavits.
And if you take the affidavits of the many eminent and respective newsmen there, I was struck by this fact and each one they’re saying that I get a great deal of information in confidence.
This is also borne out by the Guest Stanzler survey, which was mentioned in argument this morning.
I get a great deal of information in confidence, unless you give me a privilege, people aren’t going to come to me and give me information in confidence.
But the short answer is, not to give a short answer, there’s no privilege now, as we’ve pointed out this morning.
There never has been and yet they’re getting the information.
So that to say we’re not going to get information in the future, unless you recognize this privilege, it seems to me it is not a logical consequence from the fact they’ve been getting information over the years in confidence, even though there is no privilege.
I wonder as a practical matter, how much attention does the informant pay to this question, at all?
I wonder, for example, if the Panthers have been asked that night, now do you really expect that not only is Paul Pappas not going to report anything he hears in there, but he’s never going to testify about it or if he’s questioned, for example, it was mentioned if there was a fight, or an injury, or a murder.
He’s not going to answer police questions.
Is that what you really mean?
They didn’t say that, the language of the agreement was report.
And I really wonder how much attention informant’s pay to this privilege.(Voice Overlap)
Justice Thurgood Marshall: How much attention do you think the Black Panthers would pay to Pappas if he testified?
Mr. Joseph J. Hurley: I’m sure Your Honor that he would -- if he testified, the Black Panthers would be unhappy, but -- [Laughter] as was pointed out in the Caldwell case and I think it is important here that the Panthers present an unusually sensitive news source.
And it seems to me, the Caldwell decision, as it states both in the District Court and the Court of Appeals, in this case, on these facts, and we’re dealing with this unusually sensitive new source, but I don’t think a general rule can be made on that basis.
I don’t think that proves, just because there may be some source, which is unduly sensitive.
That all sources are so sensitive that it rises to the level --
Unknown Speaker: (Inaudible)
Mr. Joseph J. Hurley: They were talking?
By all means, Your Honor.
Unknown Speaker: (Inaudible)
Mr. Joseph J. Hurley: Testify?
-- I would, because I would not -- I would, because I would not regard testifying as a breach of the agreement, because I would not expect that if I said to a reporter, “You can’t print this,” that’s not an agreement, that if he is called to the witness stand and questioned that he is supposed to suffer in silence for my sake.
That he --
Justice Thurgood Marshall: I have to add one little point, he wasn’t called, he volunteered?
Mr. Joseph J. Hurley: If he volunteered?
Justice Thurgood Marshall: Yes.
Mr. Joseph J. Hurley: To testify?
I would --
Justice Thurgood Marshall: Before a legislative committee that adds your point went up.
Would you talk to him in confidence after that?
Mr. Joseph J. Hurley: I truthfully got to, if I would, yes, Your Honor.
I think that would go -- that would approach breaking the confidence, but that’s not what were dealing with here.
Unknown Speaker: (Inaudible) [Laughter]
Mr. Joseph J. Hurley: Unfortunately, I am not up for appointment, so that --
Chief Justice Warren E. Burger: And it’s quite a different case.
Mr. Joseph J. Hurley: It is.
It’s a different situation.
I would point out that Judge Smith in the Superior Court, hearing this, pointed this fact out to Pappas that I have talked to newsman for 40 years in confidence and never one has broken my confidence.
And I respect you, even though I think you’re wrong, I respect you for preserving the confidence or seeking to preserve it.
But that’s not the legal issue and I’ve got to report to the Supreme Judicial Court, because I have no right to rule, that you have the right to be silent.
So, we’re not -- it’s not a --
Justice Thurgood Marshall: If he was called before a Grand Jury and testified, you would not hold that against him, I --
Mr. Joseph J. Hurley: I would not, Your Honor.
Justice Thurgood Marshall: I’m sure you wouldn’t.
I wouldn’t --
Mr. Joseph J. Hurley: Because I would not regard that as a breach of the agreement, a breach of the confidence.
I don’t -- I wonder whether the Panthers really would regard it as a breach.
They wouldn’t like it, but I wonder if they’d really regard it as a breach of the confidence, viewing it is a --
Justice William H. Rehnquist: (Inaudible)
Mr. Hurley, wouldn’t it be fair to say that the flow of information might be cut down even though there wasn’t a breach of confidence just because you -- the first time you would not contemplate of the possibility of the Grand Jury investigation, even though it wasn’t -- which is not a breach of confidence, it was a publication or identification, a view with the information that you don’t want to take a chance on having come about again.
Mr. Joseph J. Hurley: Well, Your Honor, I’m not saying that the newsman is unprotected.
The only question is how do we do it?
Do we hand him a shield as it were and let him put that up and say, “All I have to prove is, I’m a newsman and I got in confidence.”
Now, you come forward, and I don’t have time Your Honors, but if you look at the burden that the Pappas contention would place on the State, it would just destroy the Grand Jury system, it’s completely unworkable.
So I’m not saying that you don’t ever protect a newsman.
All I’m saying is how do you do it?
You do it the way all the Court said you do it.
Mr. Pappas comes in and says, “I got this in confidence,” and the Courts got to make a determination, including hearing from the government, “Why do you need this man?
Why do you need this evidence?”
Make a determination on an individual case basis.
Unknown Speaker: You wouldn’t like the Constitutional rules in it.
Mr. Joseph J. Hurley: No, Your Honor, I wouldn’t.
I don’t think you have to.
I think it’s unworkable, it’s unrealistic, and it’s unnecessary.
I’m interested, for example just quickly looking at the appendix in Caldwell, all the 121 subpoenas.
They were served on NBC and ABC over 31 months.
First of all, only 72 of them were in criminal cases, 18 in Grand Juries, and 43 of them in criminal cases were by defendants, not by the prosecution.
And out of all those that was served by the prosecution, and that 121, excluding three that came out of the Caldwell Grand Jury, there’s only one that I would describe as possibly seeking confidential information from a reporter and that was a subpoena to a station, to bring in effect everything you’ve got on the Mafia or Cosa Nostra and some other named individuals.
The only one that you could possible say and of all these 121, only seven of them where subpoenas ad testificandum and those were all served by defendants in criminal cases.
So, I wonder really is this the practical problem?
The evidence of those subpoenas suggests to me that it isn’t the practical problem.
We are dealing with the unusual situation.
I don’t mean to minimize the importance of the problem by saying it really occurred, but what I am saying is that the solution is not in ruling that every newsman has got a Constitutional right, and he’s got to have it.
We give an attorney a privilege why?
To do his job, can it really be said that every newsman to do his job has got to have an analogous and a greater privilege?
The newsman privilege would be greater than my privilege, as I understand it because not everything I get in confidence from a client is privilege.
If he tells me he’s going to commit a crime, I’m not privileged not to testify, and yet the newsman would be.
And the answer is by doing it in an individual basis, either under legislation, if the legislature sees fit to enact it.
Or let the Court protect as the Court protects every citizen against unreasonable inquiry.
And if the individual doesn’t have to prove that the whole inquiry is unreasonable or oppressive, as my brother suggest, I think.
But only that the questions directed to him are unreasonable.
And finally as a practical matter, we all know as practical men prosecutors don’t pick fights with the press.
We know reporters work out accommodations.
Reporters do come forward.
Everybody learns in public life, you don’t pick fights with the press because they go to press everyday.
I wonder therefore, are we going to leave the press as helpless as it is suggested, if this privilege is not held to exist.
I think it was Oscar Wilde who said, “In America, the President reigns,” and that’s his words, not mine, “for four years, but the press rules forever.”
And I think there’s a great deal of practical common sense in saying, “Sure, let’s protect the reporter and his confidence.”
When in a particular case, it is shown as a result as a Judicial Inquiry that the harm to him in his capacity as a reporter outweighs the public good that would be served and remember, we’re talking -- I’m finish Your Honor.
Chief Justice Warren E. Burger: I think you may -- you may finish your sentence.
Mr. Joseph J. Hurley: I just wanted to say, we’re talking here as I think my brother has agreed not about a right that exists for the press, it’s a public right.
And the question in each case is this public right, the two sides of a same coin which is more important in a particular case.
The public’s right to know through the press or the public’s right to know through the Court. And that’s the problem that’s got to be resolved.
Chief Justice Warren E. Burger: Thank you Mr. Hurley.
I’m not ready with you yet Mr. Prettyman.
I take it that you’re going to focus your argument as defend to the Court or specifically as it relates to this case.
Argument of William Bradford Reynolds
Mr. William Bradford Reynolds: But, Your Honor I believe that my argument earlier were pertained equally to this case as it did to the former case, the general question of whether a Constitutional privilege should be recognized in First Amendment.
Chief Justice Warren E. Burger: All I had in mind is that you need not repeat your former arguments.
Mr. William Bradford Reynolds: No, I really contend that -- merely to make a couple of additional observations the -- noting that my former argument applies here equally.
Our position is of course that no Constitutional privilege exist in the First Amendment now and when should not be recognized.
I think a point that should be brought out is that even apart from that the arguments in this case is talking about a constitutional privilege focused on a particular test of some showing that the Government must make.
Generally, a balancing test, that is exceedingly difficult to apply, a balancing test which is found nowhere with respect to any other personal privileges pertaining to personal relationships.
Particularly, a distinction is made between serious and less serious crimes between what are called major crimes or victimless crime, I believe that’s how it’s characterized in the briefs.
A distinction which as far as I can determine is wholly detached from legislative judgment that if Congress is seen fit to make a victimless crime as it’s referred to, that a crime as a matter of determination -- their legislative determination and its constitutional, we see no basis for drawing lines in formulating some constitutional rule which would distinguish between something that is a major crime as opposed to a victimless crime.
Also, this rule turns on a showing by the Government that no other sources of information are available.
But suppose you have an informer who’s unreliable and you want to call a reporter in order to show reliability or suppose the informer is in fact reliable but he would make a bad witness.
Is this a situation where we should say that there are no other sources available?
And that, what about the whole notion of cumulative evidence and the importance of that and how is a judge to measure whether or not cumulative evidence is or is not important in determining function of the Grand Jury.
I take that this are extremely difficult questions in trying to formulate a test of a nature that’s proposed is as a matter of constitutional law.
And then moreover, its as Mr. Prettyman has pointed out the balancing test is one that turns on the particular facts of each case, and ad hoc test, which seems to suggest that there would always be a litigable issue involved resulting in a substantial and considerable delay.
And that such delays we feel make an important difference when you're talking about the Grand Jury process.
Statutes of limitations run, you have problems of questions of speedy trial and determinations of that nature which make a difference, a substantial difference when you're talking about a Grand Jury as opposed to an investigation by a legislative committee where it is looking into the matters which result in legislation and seems that those considerations are important ones when you're trying to formulate some kind of a constitutional test.
I will just point out that such delays can be avoided and probably would be avoided under the guidelines of the Attorney General as proposed.
You would not have such litigable interruptions and we think that that is an important distinction between the constitutional proposition that was presented and the guidelines that were spoken of earlier.
Chief Justice Warren E. Burger: Thank you Mr. Reynolds.
Mr. Prettyman, you have about three minutes.
Rebuttal of E. Barrett Prettyman, Jr.
Mr. E. Barrett Prettyman, Jr.: I have only two brief to points Your Honor.
In response to Mr. Justice Stewart, my brother over here indicated that this was an incidence of Mr. Pappas silencing himself as the price of the story.
There’s nothing improper on that.
There was a case a few years ago where a camera crew went into a Massachusetts Mental Hospital and agreed in advance to keep in confidence not to publish the actual faces, names of people in their to preserve that confidence.
You can imagine a labor leader, who is ill at home and the press is clamoring for an interview and he might say, “Come in, you can set-up your cameras, have an interview, but not in relation to my family.
That’s anything you see or here there is in confidence.
They are not part of the story.”
This kind of thing, where you impose a confidence in regard to one thing in order to get at the larger story is very common and part of getting and disseminating news.
Unknown Speaker: But in this case, Mr. Prettyman, there never was a story, larger or smaller?
Mr. E. Barrett Prettyman, Jr.: But it was only about half instance that the raid didn’t come that night.
Unknown Speaker: Yes.
Mr. E. Barrett Prettyman, Jr.: And if there had been a raid that night, could we possibly say that the constitutional issue turns on the fact that the raid was there and he covered it and published it whereas -- because the police, perhaps even knew he was there, I don’t know, didn’t raid that night.
Unknown Speaker: My equation didn’t require this -- I thought there was any impropriety, I was just differentiating this case from the --
Mr. E. Barrett Prettyman, Jr.: Right.
Unknown Speaker: Other two and in so far as that in the other two cases, there were stories published in the newspaper.
Mr. E. Barrett Prettyman, Jr.: No questions about that.
The only other thing I want to say is that I submit to you that it’s more important than an occasional indictment that an Earl Caldwell be allowed to do in-depth stories on the Black Panthers.
Mr. Branzburg be allowed to show that hashish is available, readily available to kids in two counties in Kentucky.
That Mr. Pappas be allowed to report a police raid from the inside.
We know these stories would never get to the public if it were not for the confidentiality and for the fact, the people who gave them permission thought that they were entitled to impose a privilege.
The justice concurring in the Knops case said it better than I could. I know of no period in history where any freedoms have flourished in the face of the states curtailment of the free flow of information, that’ s what we’re fighting for here.
Unknown Speaker: I -- Mr. Prettyman --
Chief Justice Warren E. Burger: Mr. Prettyman --
Unknown Speaker: Maybe you indicated it already but what in your view accounts for the fact that this basic question is arising now for the first time after almost 200 years since the -- is that a First Amendment and had a free press and had Grand Juries?
Mr. E. Barrett Prettyman, Jr.: Yes.
I think there a number of factors, Your Honor.
In the first place, I think there has been much agreement between prosecutors and newsmen over the years in the past.
I think that in addition to that that there has been a flood of subpoenas more recently as we get into the problem of minorities and radical groups.
We have our reporters today, doing things they never did before.
Reporters themselves, I used to be one.
I would tell you that our reporters today are much more investigative, more sophisticated, more daring.
Here’s Pappas, he put his life on the line by being inside the headquarters in order to report from the inside.
This, I think is of relatively recent origin when combined also with the concept on the part of the prosecutor that here is a man who is on the scene and who could provide an available investigative arm of the government.
All these things have come to the front at a time, at a sudden time just in the way that perhaps in Griswold, the question which you think would go back for 100 years did not arise until that particular --
Unknown Speaker: It’s combination of things that have all caused at that same time?
Mr. E. Barrett Prettyman, Jr.: Combination, that’s correct.
And as my brother suggested a few minutes ago, here in the course of a year and a half, NBC, CBS, we’re getting four subpoenas a month recently.
They didn’t get those counter subpoenas back in the old days, 123 subpoenas between January of 1969 and July of 1970.
And if this Court affirms this case, I can assure you that reporters will be spending a lot more time in Grand Juries and in courtrooms than they are in reporting from now on.
Chief Justice Warren E. Burger: Mr. Prettyman, another hypothetical since we’ve got to test all these propositions.
Suppose on going into the headquarters, the reporter was horrified to find as I am sure you would horrified if he found what I’m about to suggest, a great arsenal that had 20 flame throwers, 50 machine guns, whole stack of automatic riffles, cases and boxes full of dynamite for making bombs.
Your test would mean that he would have his lips sealed and he cannot tell that to the Grand Jury investigating this whole problem of potential disorder and civil disturbance?
Mr. E. Barrett Prettyman, Jr.: My test would mean only Your Honor that the Court might, in that instance, have little difficulty in indicating particularly if the ammunition had been used, had been part of some greater difficulty.
Might have in balancing the interest, might well find in that case that the interest of the prosecutor and of the Grand Jury, if you will, overrode the First Amendment.
But the privilege would come into effect, yes, because he was there and saw it under a confidential umbrella.
Chief Justice Warren E. Burger: Thank you Mr. Prettyman.
Unknown Speaker: Mr. Prettyman, if I can bother you one more question?
Mr. E. Barrett Prettyman, Jr.: Certainly.
Unknown Speaker: I wondered about your reference to the Wiseman case and I think it was the Wiseman.
Mr. E. Barrett Prettyman, Jr.: It wasn’t, it’s a commonwealth [Voice Overlap].
Unknown Speaker: It was an example of the routine effect of an off the record or rather than an agreed plaintiff to filming.
Here, the newsman is relying on the confidential agreement that the agreement as to confidence, there he broke and hence, I wonder whether you’re reference to it is rather an unfortunate one.
Mr. E. Barrett Prettyman, Jr.: No, I think if I may suggest it, it’s a very fortunate one, because the confidence was deemed to have such order in that case that they actually enforced it.
In other words, if I’m using the case as an illustration that a confidence, would rather than being improper in a way to silence the reporter, it was in that case, a way of getting the larger story.
And if they had abide it by their agreement that they had entered into and had taken films which did not show inmates without their permission then that would have been an instance of a story of great benefit to the public where they nevertheless could have gotten it only by agreeing to a confidentiality.
Now, it so it happen that --
Unknown Speaker: What happens if the reporter made the deal and then wanted to break it?
Mr. E. Barrett Prettyman, Jr.: No question about it.
But I think the fact that he attempted to break it and in the Court saw it of such a high order just to enforce it by injunction.
Chief Justice Warren E. Burger: But did you not have some other intervening First Amendment rights of other people, the rights of these prisoners not to be on television, standing around in the nude as they were, herded almost in an animal-like fashion and great many other indignities, isn’t there a very great difference with the intervention of the individual rights of those prisoners?
Mr. E. Barrett Prettyman, Jr.: Quite true and you're going to have instances of clashes in these cases occasionally between with Sixth Amendment Right to call it an assist, First Amendment Right of the reporter.
This is nothing new.
These kinds of clashes and balances are quite common in constitutional adjudication.
The kind that the courts face constantly and the courts are facing them right now below and finally, I might say, decided them in our favor.
Chief Justice Warren E. Burger: Thank you Mr. Prettyman.
Thank you, Mr. Hurley.
Thank you, Mr. Reynolds.
This case is submitted.
Argument of Edgar A. Zingman
Chief Justice Warren E. Burger: Number 70-85, Branzburg against Hayes.
Mr. Zingman you may proceed whenever you’re ready.
Mr. Edgar A. Zingman: Mr. Chief Justice and may it please the Court.
We appear here on behalf of the petition of Paul Branzburg, a professional journalist employed by the Courier Journal, a daily newspaper published in Louisville, Kentucky.
The petitioner seeks reversal on First and Fourteenth Amendment ground of two cases decided by the Court of Appeals of Kentucky, in the first of these, involving the Respondent Hayes, a Judge in the Trial Court in Jefferson County, Kentucky.
Following upon publication in the Courier Journal of an article authored by the petitioner, which described the manufacture of hashish by two individuals in Louisville, Kentucky, in which in the body of the article contained the statement, that a promise had been given by the petitioner that the identity of the two individuals would be maintained confidential, and would not be disclosed.
The petitioner was subpoenaed before a grand jury, sitting in Jefferson County, Kentucky, and was asked by that asked by that grand jury two questions relating to the identity of the person that he had described in a newspaper article.
One of the questions asked him specifically, "On November 12 or 13, 1969, who was the person or persons you observed in possession of marijuana about which you wrote an article in the Courier Journal on November 15, 1969?"
The second question was, "On November 13, 1969, who was the person or persons you observed compounding marijuana producing same to a compound known as hashish?"
This appears in our appendix at page 6.
The petitioner refused to answer these questions, and was brought before the predecessor in office of the respondent Hayes, a Trial Judge by the name of Pound, and upon the questions being read to the judge, the petitioner was directed to answer the questions.
At that time we appeared in behalf of the petitioner and asserted First and Fourteenth Amendment grounds under the concept of Freedom of the Press for the petitioner’s refusal to answer the questions.
We also asserted the provisions of a Kentucky shield statute, KRS, Kentucky Revised statutes 421.100, which is phrased in language that protects a newsman from revealing the source of any information published by him.
The Trial Court rejected the contentions made on behalf of the petitioner, and various motions for writs of prohibition and for stays were made in the Kentucky Court of Appeals.
The Kentucky Court of Appeals granted a temporary stay prohibiting the respondent’s predecessor in office from proceeding with contempt action against the petitioner, until such time as the Kentucky Court of Appeals had occasion to pass on the merits of the case.
The case was subsequently briefed and argued to the Kentucky Court of Appeals on the First and Fourteenth Amendment grounds, in addition to the provisions of the Kentucky Shield statute.
In November of 1970, the Kentucky Court of Appeals delivered an opinion, in which the Kentucky Court of Appeals held that the Kentucky shield statue did not protect the petitioner.
It held that the shield’s statute was restricted solely to informants, information and protected the identity of informants, but where the reporter, or newsman observed at firsthand individuals engaged in a particular activity which might cause to the crime or any activity, he was not privileged to protect the identity of the individuals themselves, a position which seems to us to put a premium on second hand reporting and second hand sources somewhat incongruously.
Shortly after the Kentucky Court of Appeals opinion was delivered, a petition for reconsideration was filed in the Kentucky Court of Appeals, calling to that Court’s attention.
The fact that they had made no comment upon our First and Fourteenth Amendment arguments, and citing to the Kentucky Court of Appeals the decision of the Ninth Circuit Court of Appeals in Caldwell against the United States.
The appeal of which was argued before this Court yesterday.
While that was pending before the Kentucky Court of Appeals, another article authored by the petitioner, appeared in the Courier Journal, and this article dealt with the use and sale of marijuana in the State Capitol Buildings in Frankfort, Kentucky and the environs of the Capitol Buildings in Frankfort.
Immediately following the publication of this article, the petitioner was subpoenaed to appear before a grand jury in Franklin County, Kentucky and the subpoena stated, "To testify in the matter of violation of statutes concerning the use and sale of drugs."
A motion to quash this subpoena was made on First and Fourteenth Amendment grounds, and the Trial Court, the Respondent Meigs entered an order, which in effect overruled the contentions we made directing the petitioner to appear before the Franklin County Grand Jury.
At that time, we contended not only that testimony with relation to the article was privileged under the First and Fourteenth Amendment, but we contended that the mere appearance of the petitioner under this subpoena was protected against under the First and Fourteenth Amendments.
The Trial Court having overruled us on this position, we appealed for relief to the Kentucky Court of Appeals, which had our petition for reconsideration in the first case still pending before it.
The Kentucky Court of Appeals refused us the relief, which we had requested, entered a modified opinion in the first case upon our petition for reconsideration, which in essence modified the first opinion by adding a footnote contending that we had abandoned our First and Fourteenth Amendment claims in the argument in the Kentucky Court of Appeals.
A position which I might say, I think was a distortion of the record and which has not been urged in this Court in the briefs.
Justice William H. Rehnquist: Mr. Zingman.
Mr. Edgar A. Zingman: Yes sir.
Justice William H. Rehnquist: Judge Meigs did do more for your client than Judge Pound had, did he not?
Mr. Edgar A. Zingman: Yes sir, Judge Meigs entered a four paragraph protective order which in the first three paragraphs is modeled very much like the order Judge Zepilli (ph) entered in the Caldwell case, but then he took it all back in the fourth paragraph because he said, "not withstanding anything," in the first three paragraphs.
Petitioner shall not be protected from disclosing anything concerning any crime here as observed.
And of course, the whole news article was about the possession and sale of marijuana which is a misdemeanor under Kentucky law.
Justice William H. Rehnquist: So at your position and the Judge Miggs order was for practical purpose as the same thing as Judge Pound.
Mr. Edgar A. Zingman: Yes, sir.
Justice Potter Stewart: The news article, there was only one, was there?
Mr. Edgar A. Zingman: There were two articles.
Justice Potter Stewart: One appears on pages 3 and 5 of the appendix?
Mr. Edgar A. Zingman: Yes sir and the other appears on pages 30 to 42 of the appendix.
Justice Potter Stewart: And the first one was published in the Louisville Courier --
Mr. Edgar A. Zingman: Both were published in the Louisville Courier Journal.
Justice Potter Stewart: Yes, but one had a Dateline Frankfurt.
That was the one beginning in page 30.
Mr. Edgar A. Zingman: Yes, sir.
Justice Potter Stewart: And the local -- am I right?
Mr. Edgar A. Zingman: Local, yes sir.
Justice Potter Stewart: Did not have a dateline, but it is a local story in the local paper?
Mr. Edgar A. Zingman: Yes sir, the Courier Journal is a daily or general circulation throughout the state.
Justice Potter Stewart: Throughout the state, right.
Mr. Edgar A. Zingman: Following upon Judge Meigs’ action as I stated the Court of Appeals, entered its modified opinion in the Hayes case, and denied us the relief we asked in the Meigs case.
It subsequently followed this with an opinion in the Meigs case which is at present unreported, but is set out in the appendix at page 54, and in substance in that opinion, they rejected our First and Fourteenth Amendment arguments.
They took the position that a newsman occupies no position different from any other citizen in the community, and they specifically rejected the holding of the Court of Appeals for the Ninth Circuit in the Caldwell decision.
We asked for stays and engaged in various procedural moves to hold up action pending application for certiorari to this Court, this was denied.
And upon application, Mr. Justice Stewart granted a temporary injunction staying any further compulsion or contempt proceedings against the petitioner pending application for certiorari, and on May 3 1971, certiorari was granted and we are here.
With the indulgence of the Court, I would first like to state the issue and the proposition we urge, and then to develop our arguments and support of that proposition.
In the sense that these cases seek relief for a newsman from compulsory testimony under certain circumstances, they are cases of first impression in this Court.
They are here as was the Caldwell case yesterday, and the Pappas case which follows us, because of a distressingly increasing practice of the entire criminal administration apparatus, grand juries, prosecutors, investigators, to attempt to make the news media into an appendage of that apparatus by compelling newsmen to give testimony relating to that confidential sources and information.
Doctrinally however, these are not cases of first impression.
We are asking here only for that historical protection against governmental interference with exercise of First Amendment rights, which this Court has always provided.
While the factual setting may be novo, these cases seek nothing more than the application here of these Court’s salutary and off repeated requirement.
That there is imposed upon the government the burden of demonstrating a compelling and overriding need, and the lack of alternatives less destructive of First Amendment rights before government interference with the exercise of First Amendment rights will be countenance.
The rule that we urge upon the Court, is that the freedom of the press guaranteed by the First and Fourteenth Amendments encompasses not only publication, but all meaningful preconditions to publication, not the least of which is the ability to gather or obtain information.
To ensure these rights, we believe that it is necessary for this Court to declare that the First Amendment protects a newsman from being compelled to enter a closed proceeding and from being compelled to disclose confidential information obtained by him as a newsman, unless there has been a prior demonstration by the government in an open hearing of a compelling and overriding need for the disclosure.
Now, while we do not believe that the test of compelling and overriding need can be or should be precisely defined.
We suggest that as a minimum, the following consideration should be weighed, but none alone should be treated as controlling.
Justice Harry A. Blackmun: Mr. Zingman, let me interrupt you there.
Mr. Edgar A. Zingman: Yes, sir.
Justice Harry A. Blackmun: In passing, how would you define a newsman?
Now, Mr. Branzburg here is a genuine one all right.
I take it there is no question about this, but it was suggested in the argument yesterday that beyond that, one could get into a twilight zone.
Mr. Edgar A. Zingman: Yes, Mr. Justice Blackmun.
Firstly, let me comment that the definition of a newsman as such while we will offer one, is should not be a problem as the Court will recall in the whole line of litigation starting with Sullivan against the New York Times, we had to, and the Court had to deal with the definition of the public official.
And we moved from public official in Sullivan with the footnote that the Court does not here define how far this reaches in the government structure to public person, to a person of prominence, and so forth.
Unless, of course, this is what the Courts are peculiarly and aptly fitted to do.
And we submit that the same thing with the newsman, but as a starting point, we would define a newsman as any person who want to continue as basis, is engaged in the process of gathering information and preparing such information for the dissemination to the public.
That is a very simplistic definition, but we think it would be a good starting place within the traditional approach of this Court.
Justice Potter Stewart: As we are talking about the First Amendment, the First Amendment protects free speech as well as it does in free press, is it not?
Mr. Edgar A. Zingman: Yes, sir.
Justice Potter Stewart: And I suppose your argument based as it is upon the First Amendment could not logically be confined to newsman however defined.
I suppose every one of us is protected in his right to free speech and the right to speak.
Also includes the right to keep silent.
I suppose logically carried to its conclusion, your argument would mean that anybody would be protected if he just said, "I do not want to talk."
Mr. Edgar A. Zingman: I would not --
Justice Potter Stewart: Why is it confined to a newsman?
We all have the right of free speech, do we not?
Mr. Edgar A. Zingman: Yes but, Mr. Justice Stewart, I would not agree that logically carried to its conclusion, everyone under the exercise of the grant of free speech would have the right to refuse to testify.
Justice Potter Stewart: Why?
Mr. Edgar A. Zingman: Well, specifically we are talking about press, which is also mentioned in the First Amendment.
Justice Potter Stewart: They both are equally protected of free press and free speech.
Mr. Edgar A. Zingman: In the records, in these cases demonstrate, at least we believe, and we would urge upon the Court, that the compulsion of testimony by newsmen would have an inhibiting effect upon the ability of the press to fulfill its function.
We know of no such record with respect to compelling individuals to come before grand jury and testify generally in so far as free speech.
Justice Potter Stewart: Well if you’re right, it would be a direct impingement upon a person’s right of free speech, because the right of free speech includes the right to keep silent, does it not?
Mr. Edgar A. Zingman: The right of free speech including --
Justice Potter Stewart: Not inhibiting it is just a direct violation of it, if you are right, in your basic argument.
Mr. Edgar A. Zingman: No sir!
I do not think the right of free speech has ever been interpreted by this Court as including the right to keep silent when called before --
Justice Potter Stewart: No, it never has, nor has this Court ever interpreted the right of free press to include the right of a newspaperman to defy a subpoena of a grand jury, so these both would be new decisions?
Mr. Edgar A. Zingman: That is correct, and our position is that the record here amply demonstrates that it is a necessary concomitant of the First Amendment free press right to protect the newsman that the laws in not compelling testimony is so little in the balancing process that we urge that the right be protected, if I follow your hypothesis.
If it at some future time a light demonstration is made, that grand jury testimony by individuals has a chilling effect upon the exercise of free speech, and --
Justice Potter Stewart: It certainly does.
Particularly if anything told to an individual in confidence would have a chilling effect, anybody who would want to confide in a friend or an associate, wouldn’t it?
Mr. Edgar A. Zingman: Well, I don’t know whether it would or not, all I can --
Justice Potter Stewart: Well, it’s very fair that it would, isn’t it?
Just to mean, if your argument is right or even if your affidavit is right.
Mr. Edgar A. Zingman: No, because I do not believe that in the context of speech, there is the assurance, that when confidences are given, that they will not be disclosed as part of the compulsory process of a grand jury.
But what we are urging here is that it is necessary to the functioning of the press, and it has been a part of the process of the press, that such confidences be given, and those confidences are the condition upon which information is available to the public.
I do not see the same demonstration in the speech area.
Justice Potter Stewart: The First Amendment protects them both.
Mr. Edgar A. Zingman: Yes it does, and the Court has made a different balancing considerations, and different applications of the First Amendment.
Justice Byron R. White: Well, let us suppose this reporter has been accompanied by a member of the state legislature who was simply interested in informing himself in connection with perhaps the revision of the State Criminal Code.
He was also accompanied by an interested parent and he was also accompanied by the Head of the Criminal Law Revision Commission, and they both saw the same thing, and you would say the reporter would be privileged and none of the others would?
Mr. Edgar A. Zingman: We would make that distinction, Mr. Justice White, but of course in that case it would be meaningless anyway because the information could be obtained by others which would end the quest, but doctrinally, we make the distinction because we are talking about freedom of the press and the necessity to provide the information for the public.
It is not the newsman that we emphasize.
The newsman is the mechanism, but we are emphasizing the necessity for seeing to it that the flow of information to the public is maintained.
Justice Byron R. White: Well, the interested parent and the head of the Criminal Law Revision Commission says that, we just cannot get the information to allow us to conduct our business, run our families, and to run this committee, if we are not allowed to respect confidences.
Mr. Edgar A. Zingman: My response to that would have to be that the Framers of the Constitution did not put up an Amendment in for them, and there is a First Amendment dealing with the press.
Justice Byron R. White: They are covered as Mr. Justice Stewart said by the free speech provision.
Mr. Edgar A. Zingman: Well, in so far as the exercise of free speech is concerned, I merely be repeating my self in the remarks I made in response to Mr. Justice Stewart.
We draw a distinction there on the demonstrations and the record, and on the objectives that we are urging here.
Justice Byron R. White: And I might ask you also, do you say that the newsman’s claim of privilege must automatically be respected once he claims it.
Is there any investigation or any proof required as to whether he received the information in confidence, or must do the search and just fix it?
Mr. Edgar A. Zingman: Our formulation would call for the kind of investigation in an open hearing that is made by Courts today when the Fifth Amendment privilege is asserted.
That is if prima facie the Trial Court determines that the plea is being made and sincerity in good faith, it is to be honored.
Justice Byron R. White: What do you think in this case, this is a practical matter, a reporter goes and sees what he says and reports it.
As a practical matter, why would the people that he saw running this hashish laboratory, permit him to publish the fact that there was this laboratory operating but say, please don’t publish are names?
Mr. Edgar A. Zingman: Well, this Mr. Justice White, I think goes to the heart of what we’re talking about and why this is so important.
There are dissident elements in the society today which for the first time historically, the news media are really dealing with.
Traditionally, the news media and historically have reported what is going on in the general community, the orthodox community, but more and more through investigative reporting, they are dealing with the unorthodox, the rebellious, the youth, the drug culture, the hippies, the dissidents.
Now, these people do want to get there positions across to the community at large and it is important for the community at large to understand their positions.
There’s great controversy in this country today about the question of legalization of marijuana.
It’s important for the public, in determining that question to understand the attitude of those who use.
Chief Justice Warren E. Burger: Shouldn’t the public have a right to know the sources of that information?
Mr. Edgar A. Zingman: Well, I think the important thing is for the public to have the right to know, and if having the right to know the sources will destroy the ability to obtain the information, then it leads us no place.
Chief Justice Warren E. Burger: Isn’t the public going to make its evaluation of the information depending on the credibility of the source and the possible self-interest of the source?
Mr. Edgar A. Zingman: Well, that’s part of it and I suppose in that quantum, the public will also weigh the fact that these people wanted to remain unidentified, but obviously if you are going to print news about what is presently and illegal activity, you are not going to get information voluntarily from those who are participating in such activity if it is going to immediately lead to their arrest and prosecution.
It is a question of cutting off the information at the very start.
Chief Justice Warren E. Burger: Let me ask you a hypothetical question to pursue the point of both Justice Stewart and Justice White embarked on.
Suppose in a particular community, not only the law enforcement authorities were apathetic, but also the press was apathetic and some public spirited citizens decided to conduct their own investigation, and they went around and did just what your investigative reporter did.
And then used the time honored method of writing a letter to the editor, to do again, just what your investigative reporter did.
Is he protected?
Mr. Edgar A. Zingman: Not under the definition which I offered Mr. Justice Blackmun, I believe of what a newsman is, because --
Chief Justice Warren E. Burger: Justice Stewart suggested that it’s a difficult distinction to make.
Mr. Edgar A. Zingman: It is a difficult distinction, but when I think, that has to be made.
Chief Justice Warren E. Burger: But, the reporter is protected and the citizen who writes the letter to the editor is not?
Mr. Edgar A. Zingman: In the application with the definition that we make, that would be the case, but again Mr. Chief Justice I must emphasize that we are not talking about reporters who are reporters as against other individuals.
We are talking about the flow of information protected by the First Amendment for the benefit of the general public.
Chief Justice Warren E. Burger: Well, doesn’t that standard precisely fit my hypothetical public-spirited citizen who is trying to get the flow of information that neither the law enforcement authorities nor the local press is delivering to the public.
Mr. Edgar A. Zingman: As an abstract composition it would and I might agree in a particular case, but here the First Amendment talks about the press, it doesn’t --
Chief Justice Warren E. Burger: This man is using the press, isn’t he, vicariously?
Mr. Edgar A. Zingman: Yes sir, but we have to arrive at a definition and for definitional purposes we have defined the press as one who want to continue his basis does this, not a volunteer.
Chief Justice Warren E. Burger: Historically in this country, and in other countries, particularly our own beginning 200 years ago, wasn’t the letter to the editor a great means of use by essayist and pamphleteers who communicated to the public in much the way the columnists do today, with any less for Madison or Jefferson, or any of these men, any less exercising the freedom of press, because they did not get paid for writing their letters to the editor?
Mr. Edgar A. Zingman: Well, I would concede that pamphleteer in such may, under the formulation we make be included in a particular case, then they have to be some weighing and balancing, but as a starting point, we believe that in the tradition of this Court going one step at a time that you start with a definition of the press along the lines that I have suggested, and that we move with experience from there.
Chief Justice Warren E. Burger: Under your definition, you would not automatically include all the authors of the federalist papers, would you?
Mr. Edgar A. Zingman: Well, I am not familiar with to what extent they would print, but I would suppose not.
I would suppose not.
Justice William H. Rehnquist: Mr. Zingman.
Mr. Edgar A. Zingman: Yes, sir.
Justice William H. Rehnquist: Following up on the same line of question with which you have already been barraged.
Take the class of people who speak more or less formally as an occupation of whom I would think perhaps college professors, lecturers.
Now, Justice Stewart suggested that, and I think that he is quite right that the freedom of speech is every bit as much protected as freedom of the press.
And here you have a class of people that are more or less regularly exercising the freedom of speech, and not casually exercise it.
Wouldn’t your concept of the privilege at least have to extend to this type of person?
Mr. Edgar A. Zingman: We are not prepared to urge that upon the Court, because again while that maybe a freedom of speech problem, it is not a freedom of the press problem.
We are talking specifically about press.
There are many elements in the community that are engaged in the acquisition of knowledge, and the dissemination of knowledge, but they are not constitutionally protected and constitutionally dealt with, and so we don’t reach that problem.
Justice Thurgood Marshall: What about to research and write on a book on criminology?
Mr. Edgar A. Zingman: Well, Mr. Justice Marshall I think that is the same answer I have just given Mr. Justice Rehnquist that that does not in our judgment fit in to the constitutional framework.
Justice Thurgood Marshall: Author of the book doesn’t uncover?
Mr. Edgar A. Zingman: Not in that sense, no.
Justice Thurgood Marshall: Well, in this case, your man witnessed a crime, correct?
Mr. Edgar A. Zingman: Yes, sir.
Justice Thurgood Marshall: Suppose that instead of making hashish, they were making a bomb to blow up the Capitol in Frankfort, would the privilege still apply?
Mr. Edgar A. Zingman: Well --
Justice Thurgood Marshall: I just want to know how far you’d go with this crime.
Mr. Edgar A. Zingman: At this time the questioning by the members of the Court started, I was at the point of stating to the Court the standards that we would apply, and the third standard that I have to offer, if I may, it will respond to your question.
We have said that there must be a test of compelling and overwhelming need demonstrated by the government for the information, and I was starting to say that while we do not believe it could be or should be precisely defined that is a minimum the following three considerations, none alone of which we would consider be controlling should be applied.
First, that there is probable cause that the newsman has specific information relative to a specific permissible inquiry.
Second, that there are no alternative means less destructive of First Amendment rights by which to obtain the information; and third, and this is in answer to your question Mr. Justice Marshall, that the newsman’s appearance and testimony is necessary to prevent direct immediate and irreparable perspective damage to national security, human life, or liberty.
And in terms of the third consideration, we would say a Court couldn’t weigh and compel the testimony.
Justice Thurgood Marshall: Well, suppose they were making a bomb to blow up John Doe, of ordinary citizen, it wouldn’t be covered, would it?
Mr. Edgar A. Zingman: Yes, it would in terms of my third --
Justice Thurgood Marshall: I thought you said they’d be some of national importance --
Mr. Edgar A. Zingman: National security.
Justice Thurgood Marshall: -- but killing John Doe, isn’t?
Mr. Edgar A. Zingman: National security, human life, or liberty.
Justice Thurgood Marshall: Well, or liberty?
Mr. Edgar A. Zingman: Yes sir, human life or liberty.
So in the case you posed, which is in substance I would suppose the Knox case in Wisconsin.
Justice Thurgood Marshall: My old problem is, crime is a crime.
Are they not?
Mr. Edgar A. Zingman: Well, I think --
Justice Thurgood Marshall: You’re going to draw a line among crime.
Mr. Edgar A. Zingman: I think there are distinctions in this Court has recognized that distinctions can be drawn as between crimes.
Mr. Justice Jackson, speaking for this Court in the Brandon case in 1958 dealing with the Fourth Amendment, pointed out that while the Court would not countenance a widespread net and search of all vehicles leaving a community in the case of some misdemeanor, if there was a kidnapping and such a dragnet was necessary to save the life of a child, such a search would be countenance under the Fourth Amendment.
So a distinction among crimes is not such a novel idea for this Court.
Justice Thurgood Marshall: You got another one?
Mr. Edgar A. Zingman: Not at the moment sir.
Justice Thurgood Marshall: I don’t think so.
Chief Justice Warren E. Burger: Do you think the Court has ever adopted Mr. Justice Jackson’s view of that bifurcation of the Amendment?
Mr. Edgar A. Zingman: I have known of no specific application, but I suggest that it is not unreasonable argument at all.
Justice William H. Rehnquist: Under your test, Mr. Zingman, supposing that the reporter had witnessed a murder, but there was no reason to believe that the man was in the business of murdering people, it was a one time offense.
Could the grand jury subpoena him to testify?
Mr. Edgar A. Zingman: Subpoena the reporter?
Justice William H. Rehnquist: Yes.
Mr. Edgar A. Zingman: In under our balance and test, that would be possible, yes.
Justice William H. Rehnquist: But, I thought it was danger to national security, liberty; you would regard the prosecution of an already completed offense as a way of in affect, averting that sort of danger?
Mr. Edgar A. Zingman: I would say that would come in under the balancing act, and it might be permissible for the Court using the standards we have applied.
If he felt that the definition is of perspective damage to human life or liberty.
Justice Potter Stewart: Well Mr. Zingman, I didn’t understand you making the argument that your balancing test has even comes into play, unless or until we are dealing with confidential information, is that true?
Mr. Edgar A. Zingman: That is correct.
Justice Potter Stewart: And my brother Rehnquist’s question, as I understood it, the reporter is just an eyewitness to a murder, he is like anybody else as an eyewitness to a murder.
We are only talking here about something that’s acquired by a journalist in a confidential capacity, are we not?
Mr. Edgar A. Zingman: I thank you Mr. Justice Stewart, I have misunderstood Mr. Justice Rehnquist’s question.
Justice Potter Stewart: Maybe I did also, but I --
Mr. Edgar A. Zingman: I deal solely with confidentiality, yes sir.
Justice Byron R. White: I think that you would’ve searched this privilege with respect to the name and the source, but also with respect to --
Mr. Edgar A. Zingman: Information.
Justice Byron R. White: --to information.
Mr. Edgar A. Zingman: Yes sir.
Justice Byron R. White: Now let’s assume a reporter gets items A to Z, and he promises not to disclose L to Z, but he may disclose A to L, and he does. Concededly however, L to Z are very newsworthy items that if he would free to publish them, and he says, "I must have this privilege in order that I could publish A to L, but I must privileged to withhold this other very newsworthy information."
So your argument is you must permit him to suppress certain newsworthy items in order to disclose some other, is that the --
Mr. Edgar A. Zingman: Our argument is that the judgment must be left to the newsman as to what he will publish or not publish.
Justice Byron R. White: And he may suppress newsworthy information in order to, publish some of it.
Mr. Edgar A. Zingman: He might withhold as a matter of news judgment, that some information that he’s acquired as a basis for publishing of it, yes, in response to your question.
Justice Byron R. White: And also, he’s got the judgment as to when to publish?
Mr. Edgar A. Zingman: Yes, sir.
Justice Byron R. White: I mean, even if he says, "Well these items, the L to Z, I am going to publish sometime, but not now."
Mr. Edgar A. Zingman: He could exercise that judgment.
Let me if I may indicate something in the Court, in the main, the questions that have been posed to me have dealt with problems of definition, of problems singling out the newsman, of problems of the various kinds of crimes and such that might or might not be disclosed to the public.
If I may, let me suggest the paradox that we’re dealing with here.
In our cases for example, the petitioners’ cases if this Court was to affirm the holdings below, then that effect would be to require the petitioner to go into the grand juries in Kentucky, and disclose the identity of two individuals in one case, and 3, 4, 5, 6 individuals in another case who then might be successfully prosecuted for the misdemeanors involved, but the end product would be, that’s the end of it.
From that point on, this Court having announced that there is no protection, no further information will be forthcoming to reporters on a confidential basis.
No reporters will be available to aid the prosecution by giving testimony before grand juries, or any place else, because they’re not going to have the information.
Elements in the community that might have provided information, including government officials at all levels will no longer provide such information to reporters --
Justice William H. Rehnquist: In the Palm case, the Kentucky Court of Appeals suggested that what your client witnessed was a felony, rather than a misdemeanor, do you disagree with that?
Mr. Edgar A. Zingman: I don’t disagree with that.
It may have elements of felony on it.
The sources of information would be withheld.
Reporters who have information who have information on a confidential basis will exercise prior restraint in the form of self censorship, by not printing that information for fear that they will be called before grand jury, and the end result is that a Court’s ruling here upholding the decision below, will complete the circle and completely dry up information and accomplish nothing other than the prosecution of the few individuals involved in these cases.
On the other hand --
Justice Byron R. White: Aren’t you saying at that point, perhaps I don’t follow you, that this is precisely the situation that is prevailed until recently when your newsman were able to get into some of these circles and uncover news that here before was not available?
Mr. Edgar A. Zingman: Well, I am saying that up to now, they have been able to get that information, but once this Court declares that there is no First Amendment right to protect that, they are not going to get the information, that’s what I’m saying.
Justice Byron R. White: Awhile ago, I thought you said that up to now they hadn’t been able to get this information?
Mr. Edgar A. Zingman: Oh!
Justice Byron R. White: And that’s why --
Mr. Edgar A. Zingman: This case demonstrates --
Justice Byron R. White: -- that it’s only recently that newsman has been able to get into this inner circle.
Mr. Edgar A. Zingman: No, sir.
Justice Byron R. White: So I suggest that your parade of horribles and then he takes us back.
Mr. Edgar A. Zingman: I don’t believe it takes us back, because as a practical matter, the very fact that this issue has not gotten here before, I think is demonstration of the fact that prosecutors have not pressed newsmen, up until recent years, that accommodations have been worked out to protect confidential sources and such.
But in recent years, what I said was, there has been a distressingly increasing spate of activity by prosecutors in such to compel information from newsmen and the Attorney General’s recent guidelines is indicative of the changed situation, and the recognition of the fact that there has been this developing situation.
I am about at the end of my time, so I would just say in closing, that what we are talking about is a First Amendment situation.
We think that the failure to ensure to newsmen a First Amendment right here would result to self-censorship, prior restraint, the drying up of sources of information would result in a total loss to the general public of the kinds and scope, and extent of information which the First Amendment was designed to achieve.
I think the records demonstrate very clearly the chilling effect upon the newsman’s ability to operate that these subpoenas, and compelling testimony induces.
The inevitable conclusion that we believe is the case, is that the newsman is entitled under the First Amendment to refuse to disclose confidential material, and to appear in a closed proceeding under compulsion, unless there has been a prior demonstration in an open hearing by the government of a compelling and overriding need for compulsory disclosure.
And we have suggested three criteria to be applied in determining whether or not there is such a compelling and overriding need, none of which we suggest is to be controlling, but we strongly urge upon the Court that in the historic line of cases, which have preserved and enhanced First Amendment rights in the process of bringing about that robust and wide open debate, which this Court has noted, in preserving an untrammeled press, that the necessity for declaring these First Amendment rights is immediate and urgent, and that it comes at very slight cost to the prosecutorial apparatus to the criminal administration apparatus.
Whereas, the reverse was noted yesterday by Mr. Amsterdam in his argument, every newsman interviewed in the particular survey has said that it would be a disaster for the newsman to operate in the face of a declaration by this Court, that confidential sources could not be protected.
Justice Lewis F. Powell: What was then which you mentioned essential to your submission or with in-camera proceedings be acceptable?
Mr. Edgar A. Zingman: Mr. Justice Powell, I don’t think in-camera proceedings would be acceptable, because the basis that the moment the newsman goes behind the closed door, that the suspicions of the kind that were referred to in the Caldwell case yesterday are generated and so we think it necessitates an open hearing.
Justice Potter Stewart: And before whom should that hearing be?
Mr. Edgar A. Zingman: Trial judge.
Justice Potter Stewart: As well as the one of the traditional values of the grand jury we’ve always thought and certainly this Court has repeatedly said, is that it is not and should not be controlled by judges and by prosecutors, or by anybody else.
Sometimes it’s a corrupt judge that the grand jury is investigating, isn’t that correct?
Mr. Edgar A. Zingman: I agree with that.
Justice Potter Stewart: It was grand jury of citizens to act and to investigate without any limitations imposed upon it by officials has been thought to be one of his values --
Mr. Edgar A. Zingman: I agree with that, but the traditional practice, for example as the record shows in this case, the petitioner was called before the trial judge.
The two questions were read to the trial judge and the petitioner was directed by the trial judge to answer those questions.
Justice Potter Stewart: Well, because the trial judge said, "I am not going to interfere with the traditional freedom of a grand jury."
Mr. Edgar A. Zingman: Well, he said that by saying that, "I don’t agree with you, that there’s a First or Fourteenth Amendment privilege."
I would say this is not the time nor place, Mr. Justice Stewart, but I would say there is a great deal of myth prevalent in --
Justice Potter Stewart: There may be even lawyers and judges have been saying this to each other for a good many centuries.
Mr. Edgar A. Zingman: Yes sir, and in my 20 some arguments of experience in the Courts of Kentucky, with that in any way testing any aspersions on my friend Mr. Schroering here, the myth does not fit the operations of grand juries in Kentucky.
Justice Byron R. White: Could I ask you just one question?
Do you claim the same privilege for (Inaudible)?
Mr. Edgar A. Zingman: We make some distinction with reference to trials, but in essence, the way we formulated the situation the same balancing test would be made.
Justice Byron R. White: Would you say the same privileges would be available to newsman by subpoenaing at an actual trial as he would have when he subpoenaed by the grand jury.
Mr. Edgar A. Zingman: Yes, sir.
Justice Byron R. White: And he didn’t even appear?
Mr. Edgar A. Zingman: Well, I think I’ve said he would not have to appear in a close proceeding.
He has to appear in the open proceeding.
There’s no need.
Justice Byron R. White: But only the claim is privilege?
Mr. Edgar A. Zingman: He would then assert his privilege not to respond to questions relating to confidential information, but certainly would have to appear.
It’s the vice of the close proceeding that we objected to.
Chief Justice Warren E. Burger: Mr. Zingman we’ve helped you consume your time, and it is used up that we’ll allow you a full five minutes for rebuttal.
Mr. Edgar A. Zingman: Thank you, Mr. Chief Justice.
Chief Justice Warren E. Burger: We’ll adjust the other time accordingly.
Mr. Edgar A. Zingman: Thank you.
Chief Justice Warren E. Burger: Mr. Schroering.
Argument of Edwin A. Schroering Jr.
Mr. Edwin A. Schroering Jr.: Mr. Chief Justice may it please the Court.
Mr. Zingman has, I believe generally stated the facts in the case and the procedure by which these facts have come to the Supreme Court of United States.
I do believe however, that some amplification is needed in certain areas and will attempt to do that before I get into a discussion of the issues, which I believe have been raised here.
The article involved --
Justice William O. Douglas: Is your only brief this little 3, 4-page brief?
Mr. Edwin A. Schroering Jr.: That’s correct Mr. Justice Douglas.
Justice William O. Douglas: Do you think that you say that there is nothing in the constitution, apart from the privilege of self-incrimination that protects the witness?
Mr. Edwin A. Schroering Jr.: Yes.
Justice William O. Douglas: Suppose a man is on the stand, or let the State of Committee and asked him if he believes in Jesus Christ or God, or what his religion is, do you think that is subject to examination by Government group?
Mr. Edwin A. Schroering Jr.: That of course would be a protection under the First Amendment.
That is freedom of religion.
I could see how an argument could be made to this Court along those lines.
Justice William O. Douglas: What particular part in religion that do you believe in socialist?
Mr. Edwin A. Schroering Jr.: You mean as a general principle?
Justice William O. Douglas: I mean, everything goes in these --
Mr. Edwin A. Schroering Jr.: No.
Justice William O. Douglas: The State can compel everybody to do anything?
Mr. Edwin A. Schroering Jr.: No.
Justice William O. Douglas: What you tell the priest, what you tell your pastor, what you tell your wife, what you tell your doctor.
All those things could be squeezed out of in there?
Mr. Edwin A. Schroering Jr.: A very interesting argument Mr. Justice Douglas, could be made to this Court on the protection of the First Amendment on a religious --
Justice William O. Douglas: No, I am just amazed on this little 3-page.
You treat it as almost a frivolous question.
Mr. Edwin A. Schroering Jr.: I did not mean by writing a short brief, Mr. Justice Douglas, to give the impression that I was writing or thinking that this was a frivolous matter.
Indeed, I might apologize to the Court by saying that as Chief Prosecutor in my community, indeed, I have many, many cases and I believe that sometimes brevity in bringing forth your argument is as forceful, perhaps as an exhaustive survey of the cases in any particular field or area.
I would call the attention of the Court to the cases that have been cited in connection with some of the questions that the Court has asked.
I did want to --
Justice William O. Douglas: You don’t cite any cases in your brief.
Mr. Edwin A. Schroering Jr.: Variety versus Lead (ph) is cited.
That is a case decided by the Court of Appeals of Kentucky --
Justice William O. Douglas: I see it.
Mr. Edwin A. Schroering Jr.: -- which holds that the press has no more rights under the constitution, than a citizen, and this is one of the questions which I believe has been directed to counsel in this case.
I think that it is extremely important part of this presentation.
I would like to continue with the presentation of my argument, and call the attention of the Court to KRS 421.100.
Now, this particular statute states impertinent part that no person shall be compelled to disclose in any legal proceeding or trial before any Court.
Or before any grand or petty jury.
Or before the presiding officer of any tribunal or his agent, or agents.
Or before the general assembly or any committee thereof.
Or before any city or county legislative body in any committee thereof, or elsewhere the source of any information, procured or obtained by him, and published on a newspaper, or by a radio, or television broadcasting station, by which he is engaged or employed, or with which he is connected.
As you can see, by this, Kentucky has adopted by statute, a protection for newsman --
Justice Thurgood Marshall: But the same State of Kentucky, through its judiciary said that statute just under (Inaudible).
Mr. Edwin A. Schroering Jr.: The case decided in Branzburg v. Hayes, Mr. Justice Marshall, held that the protection does apply except in the instance of where the newsman is an actual witness to the crime.
And in that case, the Court felt that there was a distinction in his position that the grand jury has the obligation --
Justice Thurgood Marshall: But what do we have before us, that statute or the judgment in this case?
We have the judgment in this case interpreted its own statute.
Mr. Edwin A. Schroering Jr.: That’s correct.
Justice Thurgood Marshall: And it said that it doesn’t apply.
Mr. Edwin A. Schroering Jr.: That is correct it does not apply.
Justice Thurgood Marshall: So how do you make a case?
Mr. Edwin A. Schroering Jr.: We raised this question in our brief as to just how this case arrived at the Supreme Court which was a matter of some concern to us in our brief, because the judge held in the Court below that the petitioner had abandoned his argument on the First Amendment, but we are here now --
Justice Thurgood Marshall: Nonetheless, I thought, in the last decision in your Court ruled specifically on the First and Fourteenth Amendment, and you said it didn’t apply.
Mr. Edwin A. Schroering Jr.: That’s correct.
Justice Thurgood Marshall: And that’s the one that’s here.
Mr. Edwin A. Schroering Jr.: No, there are two cases here Mr. Justice --
Justice Thurgood Marshall: Well, that was here.
Mr. Edwin A. Schroering Jr.: There are two cases involved.
The first case was precipitated in 1969.
The second case was a year later in a community some 50 miles away from where the first case arose.
And the in second case, you are absolutely correct.
The question was taken up, and that’s the case involving Branzburg v. Meigs.
That question was before the Court of Appeals, and the Court of Appeals specifically rejected the Caldwell decision, the decision of the Ninth Circuit.
Justice William H. Rehnquist: Mr. Schroering, even in the Pound case, certainly the petitioners here, and their application to the Kentucky Court of Appeals raised the constitutional question, did they not?
As I read the appendix at page 10.
Mr. Edwin A. Schroering Jr.: Yes, they mentioned that before Judge Pound as I recall, but then later on in argument before the Court, and if you will note in the Courts of Appeals decision involving Meigs, it specifically referred to, and I referred to the portion of the appendix where the Court claimed, that they abandoned this particular argument.
Justice William H. Rehnquist: So it is a contention of abandonment of an oral argument, although the claim was made in the written application to the Court?
Mr. Edwin A. Schroering Jr.: That’s correct!
The one part of the argument made here, which I would like to refer to at the present time, has to do with an apparent view on the part of the petitioner that somehow the grand jury is an alter ego of the police.
Somehow that the grand jury is not acting on its own, but is in the business of acquiring information, acquiring information for the benefit of prosecution.
This is not the case certainly in Kentucky.
Contrary to an inference that has been made by Council, the grand juries in Kentucky are not operated any differently from grand juries throughout the country.
We have 12 a year, and there are 12 that people chosen through our system of jury selection.
These people are interested in the enforcement of the laws of the State of Kentucky.
They are also interested in the protection of the innocent as well, and if the grand jury believes that there is insufficient evidence to show probable cause that an offense has been committed, or that this person committed it, certainly that indictment is going to be dismissed.
And this is a far cry from saying that one of the greatest dangers we have is that the press will be made an arm of the grand jury.
Justice Potter Stewart: You mean of the --
Mr. Edwin A. Schroering Jr.: Excuse me, on the prosecution, I’m very sorry.
Justice Potter Stewart: The grand jury often investigates the police, does it not?
Mr. Edwin A. Schroering Jr.: Often it does, and that --
Justice Potter Stewart: Particularly, in certain counties of Kentucky, in our experience.
Mr. Edwin A. Schroering Jr.: That’s correct.[Laughter]
And I’ve had the pleasure of investigating the police department myself, and that capacity as servant to the grand jury.
So that is very true.
Justice Potter Stewart: Is there a grand jury empanelled, you say every month in each county in Kentucky?
Mr. Edwin A. Schroering Jr.: No.
Justice Potter Stewart: Or did I not understand you?
Mr. Edwin A. Schroering Jr.: No.
During the terms in the smaller judicial districts, but every month in Courts of continuous session as we have.
Justice Potter Stewart: How many counties in Kentucky?
Mr. Edwin A. Schroering Jr.: 120.
Justice William O. Douglas: Does the prosecutor or the police in Kentucky use newspapermen as agents, or runners, or investigators?
Mr. Edwin A. Schroering Jr.: No, Mr. Justice Douglas, the prosecution does not use the news media for this purpose.
Indeed, we had an unusual situation where the grand jury had some of its sessions in the building of a local newspaper during a recent incident.
But this does not have any application here, and I am not just saying this by anyway inferring that the petitioners will use the grand jury in any section of manner that were not supposed to, but as I see it, the newsman has no more privilege under the law than the average citizen.
There is of course, a chilling effect upon any use of the law if the grand jury goes out, and subpoenas someone and asks them a question, and citizens observed that person going before the grand jury.
Certainly, there is some effect that might develop from this, but isn’t this something that we have to accept as a part of our obligations as citizens?
I will call the attention to the Court of the procedure, which have been suggested by Council in his discussion of how you would have this open hearing to determine whether a newsman would be subpoenaed, which they referred to the same type of procedure that we would use in determining Fifth Amendment privileges.
The Fifth Amendment applies to everyone.
The Fifth Amendment does not merely apply to a newsman or any group of newsmen.
Also, we’d like to call the attention to the Court of the reasons why the informants gave their information to the newsman, and it’s in the brief.
He wanted to bug the narcotics agents involved in the community.
This, it appears to be a reason not quite as important, as some of the reasons that I have developed in other privileges under the law that we noticed.
Certainly, bugging the narcotics agents, his purpose in giving the information, is not the type of a privilege, or should not go to consider the type of privilege that is being requested here.
The petitioner has suggested these different tests to be made.
I will take the position that this would fetter the grand jury process to the point that it would have a substantial effect upon the operation of the grand jury.
The grand jury certainly has deep roots in constitutional law.
They have a constitutional duty to investigate just as the press has the freedoms, as any other citizen.
When these two meet, under these circumstances, certainly doesn’t the grand jury that acts for all of the people, doesn’t their constitutional duty carry a heavier weight in this connection and the corresponding privilege, which is advanced here by counsel.
Justice William O. Douglas: Well, our question implies, there is no privilege in this case.
There’d be no privilege in any trial I suppose.
Petit jury has a great (Inaudible) under our system.
Mr. Edwin A. Schroering Jr.: Only the Fifth Amendment would apply, that is our position for constitutional reason.
Now there are privileges that are set out by statute, and the Wigmore discusses privileges and the different types, and his feeling is that privileges should not be advanced.
He thinks that the more privileges you have, the more difficult it is to administer the law, and certainly, I think that in this instance, Kentucky has passed a statute --
Justice William O. Douglas: -- the law maybe, have you ever been to a Palestinian country?
You’ve been to Russia?
Mr. Edwin A. Schroering Jr.: I have not Mr. Justice Douglas, been to Russia.
Justice William O. Douglas: -- oppressed or kind of oppressed that you have under a regiment society?
Mr. Edwin A. Schroering Jr.: I would never want to have such a situation occur in this country, and I agree wholeheartedly with the statute which has been passed by the legislature of Kentucky granting to the press a privilege, a legislative Act.
They have a privilege, but I also agree with the Court of Appeals that when the reporter starts to transcend from a receiver of information to a witness to a serious crime, which I might say was a felony at the time that the investigation began in 1969, but today by change of statute, is now a misdemeanor.
Justice William O. Douglas: Then you made every reporter a runner for the government in every case?
Mr. Edwin A. Schroering Jr.: If we assumed that that is a function of the grand jury, to be an arm of the government --
Justice William O. Douglas: This doesn’t stop at grand jury.
These rules of their exceptions have a tendency to run the full limit of their logical standards -- or rather the petty jury apply to administrative agency apply.
I would think every aspect is passed to the government.
Mr. Edwin A. Schroering Jr.: You mean that each of these agencies would thereby employ the press to do their job for them.
Justice William O. Douglas: If he can be required to testify with this, I don’t see why it couldn’t be required to testify at the SEC or the federal trade.
Justice Thurgood Marshall: You wouldn’t be employing them, because you don’t pay them.
Mr. Edwin A. Schroering Jr.: -- that ends up (Laughter).
Well, I don’t think that I would use the same analogy with arms of government who are out attempting to obtain information.
The grand jury has its roots different from that.
It has additional obligations under the law and set out in the constitution, which makes it independent, and this is the reason why I suggested this.
I feel that throughout argument on this, that the grand jury has been placed in a position before this Court, in view of the petitioner, that it somehow an arm of the commonwealth, and I will not agree with this.
I think that the corresponding constitutional obligations of the grand jury as far as the defendant is concerned, are just as important as for the prosecution.
So how can we say that the grand jury is an arm and alter ego of the commonwealth?
Justice Thurgood Marshall: Well, this judgment has affirmed than every place in the country want a story of peace and oppressed, which shows confidential information concerning a crime.
Wouldn’t it automatically follow that the grand jury would subpoena that reporter?
Mr. Edwin A. Schroering Jr.: Not necessarily.
Justice Thurgood Marshall: Well, how would you say they’re so great, how could they be doing the job if they didn’t?
Mr. Edwin A. Schroering Jr.: If the newspaper reporters observed a crime, the commission of a crime, they become a witness and they have a duty, and a responsibility to testify in a Court of law.
Justice Thurgood Marshall: Well then, wouldn’t it be too that once they publish the story, they volunteer as a witness?
Mr. Edwin A. Schroering Jr.: They are subject to being subpoenaed before the Grand Jury.
Justice Thurgood Marshall: And wouldn’t they be subpoenaed?
Mr. Edwin A. Schroering Jr.: That’s correct.
Just like you would subpoena a husband in Kentucky, or wife in connection with the case, or you would subpoena someone else with some privilege.
They would raise that privilege in a particular communication involved in the Court of law.
Whether it be before the grand jury or whether it be before the petit jury.
They have a right.
Justice Thurgood Marshall: Well I think, if I understand this case correctly, he did raise the privilege, and it was denied.
Mr. Edwin A. Schroering Jr.: It was denied --
Justice Thurgood Marshall: So then if I would to say further, that if we affirm this case, every time a reporter publishes a story of this type, he would be subpoenaed before the grand jury, will make his claim of privilege and it would be denied.
Am I right?
Mr. Edwin A. Schroering Jr.: Only if there is an indication that he is also a witness to the crime in Kentucky.
Justice Thurgood Marshall: Well, I am saying the case of this type.
Justice William O. Douglas: I didn’t think we were talking about a witness to a felony.
This is a case as I understand it, for incompetence this man has given in commission.
Mr. Edwin A. Schroering Jr.: He was told --
Justice William O. Douglas: He’s not walking down the street and sees a bank being held up, that’s not this case, is it?
Mr. Edwin A. Schroering Jr.: No, but this case is one where --
Justice William O. Douglas: But he got confidential information.
Mr. Edwin A. Schroering Jr.: Confidential information and also the reporter witnessed the compounding of hashish, the combining together the elements of that drug which is a felony in Kentucky, and under the circumstances, there is an overriding, certainly an overriding need that these individuals be brought to justice under our law.
Justice William O. Douglas: But being a member of the communist party has been a crime in the United States, and attending a meeting is witnessing, counting the heads in the room, is witnessing who the members are.
I mean, this leads to, which goes a long distance.
Mr. Edwin A. Schroering Jr.: The present law, as from common law does not grant a privilege, First Amendment privilege to the newsman, anymore than in any other occupation, any specialized occupation.
And so I cannot see how that the situation can be worst than it is right now, if the privilege is not extended to newsman.
I think one of the most important arguments to make to the Court, is in connection with the constitutional rights of individuals as opposed to groups, sole groups, individual groups that may have certain interests, and in this connection the media, has interests ,which they want to protect.
And certainly the media is extremely important in our society today -- but no law to the Supreme --
Unknown Speaker: Mr. Schroering, excuse me, in that connection, Mr. Zingman made a very appealing argument about the drawing up of sources of information, what is your response to that?
Mr. Edwin A. Schroering Jr.: I do not believe that the sources of information will be dried out.
As a matter of fact, in this instance, within a few months after the action taken by Judge Pound.
The same newspaper reporter went 50 miles away from our community and published an entirely new article in the same subject matter.
And apparently had no difficulty in getting individuals in that community, within the range of that newspaper, to give him all sorts of information.
Now, I might say that if the reporter had appeared before the grand jury in Meigs, instead of refusing to appear.
My opinion, the Court would have sustained his privilege under 421.100.
I am not saying here that he does not have a privilege, but what I’m saying is that when he turns from a reporter to a witness, when he becomes a witness to a crime at that point.
There is an overriding need that he performed his duty as a citizen, appear before the grand jury, which has the constitutional responsibility of going into these crimes, investigating these crimes, and testifying.
Unknown Speaker: [Inaudible] entered by Judge Meigs, as I read it, recognize as a qualified privileged newsman.
It’s not clear to me from what you have said, whether your position here this morning is that, you agree with Judge Meigs that a qualified privilege exist, or is it your position that no privilege whatever exist?
Mr. Edwin A. Schroering Jr.: Well in Kentucky, it’s a statutory privilege that exists.
I would argue that there is no First Amendment privilege on the part on a newspaper reporter to refuse to answer questions in connection with offenses that he has witnessed.
Unknown Speaker: [Inaudible] perhaps Judge Meigs order do not necessarily relate to crimes actually witnessed.
They reflect a recognition of a qualified privilege with respect to information.
Mr. Edwin A. Schroering Jr.: That’s correct.
Unknown Speaker: Do you agree with this order in that respect?
Mr. Edwin A. Schroering Jr.: I believe that he probably modeled that ordered after Caldwell.
Unknown Speaker: He know that he did, but I want to know whether you agree with him or not.
Mr. Edwin A. Schroering Jr.: I do not agree with the Caldwell decision.
Chief Justice Warren E. Burger: Well, was his order not reflecting in part the statute to the Commonwealth of Kentucky?
Mr. Edwin A. Schroering Jr.: Yes, but when he granted the privilege that he could consult with counsel in connection with it this of course is not in our statute.
There were other portions of it, which led me to believe that what he did was, that he modeled the protective order from the same protective order that we find in Caldwell.
And I think that when the case went to the Court of Appeals, they made their decision on whether or not Caldwell will be the proper law in Kentucky.
Justice William H. Rehnquist: The State didn’t appeal from that portions of Judge Meigs order that were adverse to it.
Mr. Edwin A. Schroering Jr.: That’s correct.
The counsel that argued the Meigs case in the Court of Appeals did not, I don’t believe filed a brief with this particular Court.
I argued the case for Judge Hayes, and did file a brief short to what they’ve been.
Actually, the argument that the press makes that they can’t get information anymore, indicate that the problem in recent years, there’s been an increased activity on the part of prosecutors in this connection.
I do not believe is supported by the facts, certainly, there has been an effort made by grand juries in recent years to do their job, but I do not conclude thereby, that it is strictly because of the action of government, or the action of grand juries, we’ve had a considerable amount of publicity.
Much, much more, in connection with the operation, or the commission of crimes in recent years, and this of course is not necessarily a bad thing.
I don’t want the Court to get the impression that I’m arguing that, but I’m saying that the responsibility, the constitutional responsibility of this grand jury, to investigate not only for the benefit of the people.
But certainly for the benefit of a defendant who may or may not be charged, depending upon whether probable cause has been properly shown to that grand jury is an overriding importance.
And indeed, if we had a system whereby we had to apply in open Court, in order to get a subpoena, if we had to go to the judge at open court and apply, there would be no question that the Grand Jury would be fettered.
Because the pledge of secrecy which we have in the grand jury is also a protection, and in an open hearing, what does this do to the pledge of secrecy?
Is the suggestion made that this should be done perhaps, because the media would want more publicity concerning that reporters testifying before the grand jury, I don’t know.
Justice Thurgood Marshall: Is the procedure in Kentucky that these grand jury subpoenas are issued by the grand jury is going to act or issued by the prosecution, in the name of the grand jury?
Mr. Edwin A. Schroering Jr.: They can be.
Justice Thurgood Marshall: Well, aren’t they is the question.
Mr. Edwin A. Schroering Jr.: Not uniformly.
The grand jury has the right to choose its own legal adviser in Kentucky, and there are instances of where the grand jury has chosen --
Justice Thurgood Marshall: Well, are they issued in the name of its legal adviser?
Mr. Edwin A. Schroering Jr.: Its legal adviser.
They serve the grand jury, and give recommendations to that grand jury.
Chief Justice Warren E. Burger: Thank you Mr. Schroering.
Mr. Edwin A. Schroering Jr.: Thank you.
Chief Justice Warren E. Burger: Mr. Reynolds.
Argument of William Bradford Reynolds
Mr. William Bradford Reynolds: Mr. Chief Justice, may it please the Court.
The United States is appearing as amicus in these cases and the case that follows in a matter of Paul Pappas, and I therefore, will address my remarks here to the three cases involved.
The broad argument with respect to the First Amendment, and whether there is in the First Amendment a privilege for news reporters to withhold from grand jury investigations information that they might have, my argument may well overlap.
Unknown Speaker: This is cited under the guidelines of the Attorney General, that --
Mr. William Bradford Reynolds: I don’t believe the Attorney General guidelines would apply to these cases.
Their state --
Unknown Speaker: I understand, I say if they did apply, would there be immunity?
Mr. William Bradford Reynolds: The Attorney General guidelines do not grant any immunity to a news reporter with respect to grand jury proceedings, but they do set of a procedure, whereby before a reporter will be called before a grand jury.
There will be some negotiation with the news media prior to that time, and to ascertain to determine the need for the testimony of the reporter.
And that whether or not there are other sources from which information might be gleaned to the same nature.
Unknown Speaker: But those guidelines are in the brief of the Caldwell case, I was wondering, has there been any litigation under those?
Mr. William Bradford Reynolds: Not to my knowledge at the present time.
I’m not aware of any case as far.
Unknown Speaker: If the guidelines did apply, this was a federal situation, would be a matter of negotiation between the Attorney General and the press.
Mr. William Bradford Reynolds: Essentially that is correct, Your Honor.
Unknown Speaker: But the fact that there are guidelines, that is by the Attorney General, I suppose, suggest that we’re dealing on a pre-sensitive area.
Otherwise, why guideline?
Mr. William Bradford Reynolds: Well, I believe we are dealing in a sensitive area.
I don’t believe anybody disputes that point.
The question here is whether we are to create a new constitutional privilege in the First Amendment for a specific class of citizens that is news reporters.
And I don’t believe that the fact that the Attorney General has issued guidelines in what is an admittedly a sensitive area that it follows in that fact we need to create a constitutional privilege of this nature.
Now before --
Unknown Speaker: You said the guidelines are based on a recognition "of limiting effects on the exercise of First Amendment rights."
Mr. William Bradford Reynolds: Your Honor, I think we all recognize that when we’re talking about newsgathering that in the penumbra of First Amendment interest, there is lurking somewhere an interesting news gathering.
I don’t think that there’s much doubt if the government were to cut off all access to a particularly impoverished area, for example, solely for the reason that they do not want the public to know what was going on there.
That would be permissible under the First Amendment, but newsgathering is an exceedingly broad concept.
And as this Court recognized in Zemel and Rusk, in many respects, it connotes action more than expression.
I think plainly, one does not have any constitutional right to access to a particular newsworthy stories, or newsworthy items.
I for instance, don’t think that as a matter of constitutional law, a news reporter could gain access to a White House conference, or a conference in the Supreme Court, for example, because it might be a newsworthy story.
Moreover, and this has been pointed out in prior questions and answers before the Court, newsgathering as a First Amendment interest, is not an interest that is only with the institutionalized press or the news reporter.
I think that any citizen, any individual who is concerned with exchanging ideas or disseminating information to others, whether he be a news reporter, an author, a freelance writer, a professor, has the same interest in the First Amendment in newsgathering, nor in my view is it confined to the written word, or publication I think as Mr. Justice Rehnquist pointed out.
The lecturer or the public debater, or any individual citizen who wish to exchange ideas or information with friends or associates, would have the same interest in gathering news.
I don’t think it’s an exclusive interest that we find in the free press language of the First Amendment.
I think it is also inherent in free speech.
And it is our view, that as a matter of constitutional theory, if we’re going to construct a privilege based on a First Amendment interest in newsgathering, that that privilege is going to have to pertain, not just to news reporters, but to anybody who says that in appearance before a Grand Jury is going to have a chilling effect on his confidential sources of information.
And there’s an additional difficulty that in those circumstances, there is an additional difficulty on how to determine or verify confidentiality.
That’s one of those factors that Court by its nature is going to be unable to scrutinize.
Our position is essentially, that to allow this type of wholesale interference, and it would be wholesale interference with the grand jury, is contrary and undercuts the specific protections that the framers of the constitution intended by the Fifth Amendment.
The Fifth Amendment provides that a Grand Jury shall be the sole method for preferring charges in serious criminal cases.
Our grand jury is modeled after the English grand jury, has a body of laymen with very broad powers to investigate in secret, alleged criminal acts not only for determining probable guilt, but also for the purpose of protecting innocent people of false prosecutions.
From the early days of the republic, and indeed in England, attendance upon and testimony before grand jury has been a public duty for which every citizen is bound to perform when summoned.
We don’t think that the framers of the constitution were unaware of this obligation.
Nor do we think they were unaware of the fact, as has been pointed out already in prior discussion this morning, that anybody who’s called before a grand jury, is going to have some adverse effect on First Amendment interests, either speech, or associational ties, or press.
But the area of this potential conflict is an exceedingly narrow one.
It’s an area that deals only with question of criminal activity.
And in that narrow area, we think that the framers of the constitution, in reconciling the broad public interest in having a grand jury with these broad investigatorial powers.
And the First Amendment interest that might be indirectly affected, by calling in people to appear before grand juries, that they apparently determine that there should be no alternation of the general requirement, that people appear and give testimony before grand juries.
Now they did write an exception into the Fifth Amendment.
The exception against self-incrimination, but there is no exception written into the First Amendment.
We think that the very direct effect that is possible on First Amendment interest that is interest of speech and association, which are in our view far more direct First Amendment interest, than what we are talking about here which is a more remote interest in newsgathering.
But the effect on those direct interest by appearing before the grand jury, where we think not unforeseen by the framers, and they do not see fit to rate any privilege into the First Amendment.
And we don’t believe that this more remote interest in terms of newsgathering is one that would require that we now create a new privilege in the First Amendment.
Now, we’ve heard a lot this morning about the fact that a holding by this Court the effect that there is no privilege in the First Amendment is going to dry up news sources.
The news media in this country have of course existed for almost 200 years without a constitutional privilege of the sort of thing there is to hear.
Confidential sources have long been used in the newsgathering process --
Justice Thurgood Marshall: Do you recognize the fact that many areas has worked out in the prosecutor’s office?
Mr. William Bradford Reynolds: In many areas?
Justice Thurgood Marshall: Worked out in the prosecutor’s office with the newspaper, isn’t that true?
Mr. William Bradford Reynolds: What is worked out?
Justice Thurgood Marshall: As to what information will be divulge and what will not.
Mr. William Bradford Reynolds: I think that that --
Justice Thurgood Marshall: It is being done everyday.
Mr. William Bradford Reynolds: I think that that is --
Chief Justice Warren E. Burger: Aren’t the Attorney General’s guidelines manifestation of that very thing?
Mr. William Bradford Reynolds: I think that is correct.
Chief Justice Warren E. Burger: And I suppose too, those guidelines have a further effect with 93 branch offices as it were, 93 United States attorneys around the country in such an important, and sensitive area as this opt to have a uniform treatment in federal system.
I suppose that’s the function of those guidelines, is it not?
Mr. William Bradford Reynolds: That’s the function of those guidelines, that’s correct Your Honor.
And if no constitutional privilege is recognized, there are the guidelines, and of course it will continue as Mr. Justice Marshall suggested to have the same kind of negotiations.
Justice William O. Douglas: Do you think that the First Amendment, as applied to the States, is to be read the same as when it’s applied to the Federal Government?
Mr. William Bradford Reynolds: I do Your Honor.
I don’t think there is a distinction along those lines.
As far as the drawing up of the sources, this claim, we might point out, is being made by a certain segment of the media, by in these cases, essentially the large metropolitan newspapers, by amicus briefs the large major TV networks.
And that Professor Blazy’s (ph) report that has been referred to yesterday, talks also in terms of as his study group compiled newspapers with a circulation of over 50,000.
How often conceivably, it might be demonstrated that a reporter’s privilege is desirable for that segment of the media.
It may well not be desirable on balance to the right such protection for newspapers with as smaller circulation.
There may be no problem of drawing up of new sources, or drawing up of new stories, I’m revealing with the smaller segment of the smaller circulation, or what about newsletters for example, college newspapers.
We think that if there is really a difficulty with respect to drawing up the sources.
And we point out again that the news media have enabled to exist for 200 years without any constitutional privilege, and without a drawing up of sources.
But if there is a difficulty along those lines, we think that it’s for the legislature to determine on an informed judgment, looking at the different particular problems with respect to different media, and to meet that difficulty in that way.
We don’t believe that the right approach is a constitutional privilege that is to be confined to a particular class of citizenry that is news reporters as such.
There is also a difficulty as to what is a reporter which has been pointed out, and who would be covered along those lines.
To our knowledge, this Court has never recognized in the First Amendment or in any other Amendment in the Bill of Rights, any special rights or privileges that apply to a special class of citizen, and we do not think that it would be appropriate to do so here.
Chief Justice Warren E. Burger: We will allow you five minutes counsel.
Rebuttal of Edgar A. Zingman
Mr. Edgar A. Zingman: Mr. Chief Justice, thank you.
I would briefly point out, Mr. Justice Rehnquist; you asked the question about the abandonment of the First and Fourteenth Amendment claims in the Kentucky Court of Appeals, and Mr. Schroering.
I believe in error stated that the contention was that in oral argument, I had abandoned that claim.
That’s not what the record discloses.
The record discloses that the Court of Appeals claimed that in a supplemental memorandum which I filed with them, I had abandoned that claim by a statement which I made that there is no question here concerning the First Amendment concerning the issue of privilege itself, we have a statute.
We dealt with this preposition in our replied brief on the application for writ of certiorari that was taken out of context.
It was in response to an argument based upon Professor Wigmore’s writings on privileges.
But in any event, even if there was a technical abandonment in the Meigs case, they specifically rejected the First and Fourteenth Amendment grounds.
As this Court has noted it would be a fruitless exercise to send us back, have the petitioner make his assertion, be held in contempt and we’d be right here because we know what the Kentucky Court of Appeals would do.
Now, the Solicitor General has referred in his argument to the Attorney General’s guidelines in response to your question from Mr. Justice Douglas.
I would point out that first of all, as Mr. Justice Douglas recognized, and as I think the Court was recognized because the Solicitor General states it in his brief.
This is a very delicate area, recognized by the Federal Government, but then the Solicitor General in his brief says that the Attorney General’s guidelines do not create any litigable rights.
So what we have is, in the federal area, a statement of policy, but at the same time the Solicitor General tells us that if they decide not to follow it, that’s their judgment and no rights, are conferred.
We’re talking about First Amendment rights and as Mr. Reynolds indicated, we are talking about the penumbra of rights, and we suggest that under the penumbra, this right is necessary of declaration.
Now in this entire argument this morning, and to some extent yesterday, there seem to be some implicit assumption that compulsory testimonies an absolute absent of Fifth Amendment privilege.
Well, that’s just not the case.
To begin with, we have on the Government side, the asserted right of the Government not provided any place in the constitution.
Not to disclose the identity of informants in criminal proceedings and that’s been protected by judicial decisions.
We have --
Chief Justice Warren E. Burger: I think that’s been considerably eroded, has it not?
Mr. Edgar A. Zingman: Well, and I think if necessarily so, but its still is established and it’s a right that they urge --
Unknown Speaker: Here, have we not at least at the threshold, at least we are not talking about compulsory testimony, we haven’t reached that.
We are talking about compulsory attendance, are we not?
Mr. Edgar A. Zingman: We have the appearance issue on the threshold, but --
Unknown Speaker: The threshold issue.
Mr. Edgar A. Zingman: Yes, sir.
Unknown Speaker: And that is generally required, is it not?
Mr. Edgar A. Zingman: Yes sir, but --
Unknown Speaker: Except as I learned yesterday of the oppressed in the United States.
Mr. Edgar A. Zingman: [Laughter]Yes sir.
I went to Yale too, and maybe they didn’t teach us that.[Laughter]
I would --
Unknown Speaker: The compulsory attendance is required and it’s only after one attends and is interrogated that he generally asserts the privilege, whether it be that of an informer, or a spouse, or whatever.
Mr. Edgar A. Zingman: We agree.
Unknown Speaker: That’s common grounds, is it not?
Mr. Edgar A. Zingman: Yes sir.
Then I would pass finally to this 200-year argument which I eluded to in my argument earlier, and that is we don’t know what the situation might have been, had the Court declared this First Amendment penumbra right that we urge, somewhat earlier.
We don’t know to what extent the press has been denied information, but we do know in the record in the Caldwell case, in the Branzburg affidavit, which is part of the record in our case, the present effect of a denial of this privilege.
We have already seen situations, and the Caldwell Judge himself, as I think has been noted in some of the supplemental briefs and proceedings following upon Caldwell applying the same guidelines, has compelled the disclosure of testimonies.
So the guidelines themselves were too narrow to extend any significant protection.
Further, I would point out that we’re dealing with a new breed of newsman today.
With the advent of television, and the on the spot coverage that the television newscaster provides, more and more our daily newspapers are going into in-depth reporting, investigative reporting.
And this is an entirely different situation, and does deal with the sensitive groups where information is required.
I would just conclude an urge upon you that the penumbra area of the First Amendment requires the declaration here the rights we urge.
Chief Justice Warren E. Burger: Let me just put a hypothetical question to you now on the Court’s time counsel.
Suppose the prosecutor upon reading this story or the foreman of the grand jury, if there was a grand jury then sitting as I gather there is in the larger cities of Kentucky, concluded that this was one of two things.
Either the story was true and the local police department was not alert enough, or the story was a hoax, and a fabrication, and a fraud, and the pictures were flagellant with actors and not real people, and that the powder was baking soda and not hashish.
And so, as foreman of the Grand Jury, I must make it the foreman of the grand jury, he said he wanted to find out which was true.
Now, would you think there is an important public interest to be served in finding out which of these two things is true, namely is the police department falling down or is it in league with these people on the one hand, or is this just a fabricated news story completely made up out of the whole cloth?
Mr. Edgar A. Zingman: My answer would have to be, Mr. Chief Justice that I could not isolate that situation and in the balancing act that I suggest ought to be fulfilled.
The gain to the community in that one instance as weighed against the situation that we posed, that denial of the privilege would lead to the overall effect of denying the entire community, the flow of information that I would sacrifice, in this case, the gain of that information about that specific situation.
I think, if we don’t do that, then we’re cutting off the flow of information to serve this one immediate purpose.
Chief Justice Warren E. Burger: Very well, thank you gentlemen.
This case is -- excuse me.
Justice William H. Rehnquist: Mr. Zingman, let me ask you one more question, following up that response if I may?
Your talking about the cutting off of an entire flow of information, do you have any idea how many stories the Courier Journal runs in a year, in which the reporter’s account indicates that he witnessed the commission of a crime?
Mr. Edgar A. Zingman: Mr. Justice Rehnquist, I don’t have the specific answer to that.
But there is cited in our brief a survey by Guest and Stanzler which appears at page 16 and 18 of our brief.
And that my understanding is that the Courier Journal was one of the newspapers that participated in the analysis.
And I believe the analysis indicated a staggering percentage 40-50% of stories in the newspaper survey were based upon confidential information.
Justice William H. Rehnquist: But not necessarily witnessing the commission of a crime?
Mr. Edgar A. Zingman: No, sir.
Chief Justice Warren E. Burger: And that’s what this case is about, isn’t it --
Mr. Edgar A. Zingman: These cases are witnessing of crime, that’s the hard case.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.