Nature of the Case
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Facts
Branzburg (D) observed illegal drug activities and reported them in a newspaper article. Branzburg, a staff reporter for the Courier-Journal, wrote an article about drug dealers. The article included a photograph of a pair of hands working above a laboratory table on which was a substance identified by the caption as hashish. The article stated that D had promised not to reveal the identity of the two hashish makers. D was subpoenaed by the Jefferson County grand jury; he appeared but refused to identify the individuals he had seen possessing marihuana or the persons he had seen making hashish from marihuana. D was ordered to answer these questions, and the court rejected his contention that the Kentucky reporters' privilege statute or the First Amendment of the United States Constitution authorized his refusal to answer. D then sought prohibition and mandamus in the Kentucky Court of Appeals. It held that the statute did not permit a reporter to refuse to testify about events he had observed personally, including the identities of those persons he had observed. D also had the same luck in a second run-in with the grand jury and courts. D sought a writ of certiorari to review both judgments of the Kentucky Court of Appeals.
Pappas (D1) refused to testify before a state grand jury about his experiences inside Black Panther headquarters. The Supreme Judicial Court reaffirmed prior Massachusetts holdings that testimonial privileges were 'exceptional' and 'limited,' stating that 'the principle that the public `has a right to every man's evidence'' had usually been preferred, in the Commonwealth, to countervailing interests. Any adverse effect upon the free dissemination of news by virtue of petitioner's being called to testify was deemed to be only 'indirect, theoretical, and uncertain.' The court concluded that 'the obligation of newsmen . . . is that of every citizen . . . to appear when summoned, with relevant written or other material when required, and to answer relevant and reasonable inquiries.'
Caldwell (D2) had written several articles after interviewing Black Panther leaders. He refused to testify before a federal grand jury. Viewing the issue before it as whether D2 was required to appear before the grand jury at all, rather than the scope of permissible interrogation, the court first determined that the First Amendment provided a qualified testimonial privilege to newsmen; in its view, requiring a reporter like D2 to testify would deter his informants from communicating with him in the future and would cause him to censor his writings in an effort to avoid being subpoenaed. Absent compelling reasons for requiring his testimony, he was held privileged to withhold it. The court also held, for similar First Amendment reasons, that, absent some special showing of necessity by the Government, attendance by D2 at a secret meeting of the grand jury was something he was privileged to refuse because of the potential impact of such an appearance on the flow of news to the public.
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