The reporter's privilege issue posed in branzburg v. hayes (1972) is a microcosm of the difficulties of both journalism and law in accommodating traditional procedures and principles to the development of widespread disenchantment and disobedience in American society. For knowledge about dissident groups we must depend on the efforts of journalists, efforts that will be impeded if the subjects believe that reporters' information will become available to law enforcement agencies. Yet the legal system has important interests in prompt detection and prosecution of crimes. Anglo-American judges have long boasted that no person is too high to escape the obligation of testifying to a grand jury. This obligation is an important guarantee of equality in the operation of criminal law. Thus, courts have historically been unsympathetic to claims that certain kinds of information should be privileged from disclosure before the grand jury. Only the right against self-incrimination and the attorney-client privilege have achieved general recognition from American courts.
In Branzburg, three cases joined for decision, three reporters had declined to provide requested information to a grand jury. The reporters argued for a special privilege, arguing that compulsory testimony would significantly diminish the flow of information from news sources.
The opinions of a closely divided Supreme Court spanned the spectrum of possible first amendment responses. Justice byron r. white's majority opinion rejected the notion of a journalist's claim of privilege, calling the journalists' fear speculative. Even assuming some constriction in the flow of news, White argued, the public interest in investigating and prosecuting crimes reported to the press outweighs that in the dissemination of news about those activities when the dissemination rests upon confidentiality.
After seemingly rejecting both the theoretical and the empirical arguments for a journalist's privilege, the majority opinion concluded with an enigmatic suggestion that the door to the privilege might not be completely closed. "Newsgathering," the majority noted obliquely, "is not without its First Amendment protection": "[G]rand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification."
Moreover, the majority opinion made clear that the subject of reporter's privilege is an appropriate one for legislative or executive consideration. It noted that several states already had passed shield laws embodying a journalist's privilege of the kind sought.
In a brief but important concurring opinion, Justice lewis f. powell emphasized that "we do not hold that … state and federal authorities are free to "annex' the news media as an investigative arm of government." No "harassment" of newsmen will be tolerated, Powell continued, if a reporter can show that the grand jury investigation is "not being conducted in good faith" or if he is called upon for information "bearing only a remote and tenuous relationship to the subject of the investigation." Lower courts have generally followed the Powell approach to claims of reporter's privilege.
Four Justices dissented. For Justice william o. douglas, the First Amendment offered immunity from appearing or testifying before a grand jury unless the reporter were implicated in a crime. Justice potter j. stewart, for himself and Justices william j. brennan and thurgood marshall, wrote a careful but impassioned dissent. From the right to publish Stewart deduced corollary right to gather news. This right, in turn, required protection of confidential sources. Stewart recognized that the interest of the government in investigating crime could properly outweigh the journalist's privilege if the government could show that the information sought were "clearly relevant to a precisely defined subject of governmental inquiry"; that the reporter probably had the relevant information; and that there were no other available source for the information.
Later decisions have uniformly rejected claims of special privilege for reporters in other factual settings. In zurcher v. stanford daily (1978) the Supreme Court denied that the First Amendment gave any special protection to newsrooms against police searches and seizures. And in herbert v. lando (1979) the Court rejected a claim that journalists should be privileged not to respond to questions about the editorial processes or their subjective state of mind concerning stories involved in libel actions. Thus the Court has left the question of reporter's privilege to legislative treatment through shield laws and to prosecutorial discretion.
Benno C. Schmidt, Jr.
Blasi, Vincent 1971 The Newsman's Privilege: An Empirical Study. Michigan Law Review 70:229.