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Edwin A. Schroering, Jr., argued the cause for respondents in No. 70–85. With him on the brief was W. C. Fisher, Jr. Joseph J. Hurley, First Assistant Attorney General, argued the cause for respondent, Commonwealth of Massachusetts, in No. 70–94. With him on the brief were Robert H. Quinn, Attorney General, Walter H. Mayo III, Assistant Attorney General, and Lawrence T. Bench, Deputy Assistant Attorney General. Anthony G. Amsterdam argued the cause for respondent in No. 70–57. With him on the brief were Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, and William Bennett Turner.
William Bradford Reynolds argued the cause for the United States as amicus curiae urging affirmance in Nos. 70–85 and 70–94. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, and Beatrice Rosenberg.
Briefs of amici curiae urging affirmance in No. 70–57 and reversal in Nos. 70–85 and 70–94 were filed by Alexander M. Bickel, Lawrence J. McKay, Floyd Abrams, Daniel Sheehan, Corydon B. Dunham, Clarence J. Fried, Alan J. Hruska, Robert S. Rifkind, Anthony A. Dean, and Edward C. Wallace for New York Times Co., Inc., et al.; by Don H. Reuben, Lawrence Gunnels, Steven L. Bashwiner, and Thomas F. Ging for Chicago Tribune Co.; by Arthur B. Hanson for the American Newspaper Publishers Association; and by Irving Leuchter for the American Newspaper Guild, AFL-CIO, CLC.
John T. Corrigan filed a brief for the National District Attorneys Association urging reversal in No. 70–57 and affirmance in No. 70–94.
Briefs of amici curiae urging affirmance in No. 70–57 were filed by Irwin Karp for the Authors League of America, Inc.; by W. Theodore Pierson and J. Laurent
Scharff for the Radio Television News Directors Association; and by Earle K. Moore and Samuel Rabinove for the Office of Communication of the United Church of Christ et al.
Briefs of amici curiae in No. 70–57 were filed by Leo P. Larkin, Jr., Stanley Godofsky, and John J. Sheehy for Washington Post Co. et al.; by Richard M. Schmidt, Jr., for the American Society of Newspaper Editors et al.; by Roger A. Clark for the National Press Photographers Association, Inc.; and by Melvin L. Wulf, Paul N. Halvonik, A. L. Wirin, Fred Okrand, and Lawrence R. Sperber for the American Civil Liberties Union et al.
Opinion of the Court by MR. JUSTICE WHITE, announced by THE CHIEF JUSTICE.
The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not.
I The writ of certiorari in No. 70–85, Branzburg V. Hayes and Meigs, brings before us two judgments of the Kentucky Court of Appeals, both involving petitioner Branzburg, a staff reporter for the Courier-Journal, a daily newspaper published in Louisville, Kentucky.
On November 15, 1969, the Courier-Journal carried a story under petitioner's by-line describing in detail his observations of two young residents of Jefferson County synthesizing hashish from marihuana, an activity which, they asserted, earned them about $5,000 in three weeks. 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 petitioner had promised not to
reveal the identity of the two hashish makers. Petitioner was shortly 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.? A state trial court judge 3 ordered petitioner to answer these questions and rejected his contention that the Kentucky reporters' privilege statute, Ky. Rev. Stat. $ 421.100 (1962),4 the First Amendment of the United States Constitution, or $$ 1, 2, and 8 of the Kentucky Constitution authorized his refusal to answer. Petitioner then sought prohibition and mandamus in the Kentucky Court of Appeals on the same grounds, but the Court of Appeals denied the petition. Branzburg v.
1 The article contained the following paragraph: “I don't know why I'm letting you do this story,' [one informant] said quietly. 'To make the narcs (narcotics detectives) mad, I guess. That's the main reason.' However, Larry and his partner asked for and received a promise that their names would be changed.” App. 3–4.
2 The Foreman of the grand jury reported that petitioner Branzburg had refused to answer the following two questions: "#1. 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? #2. On November 12, or 13, 1969, who was the person or persons you observed compounding Marijuana, producing same to a compound known as Hashish?” App. 6.
3 Judge J. Miles Pound. The respondent in this case, Hon. John P. Hayes, is the successor of Judge Pound.
4 Ky. Rev. Stat. $ 421.100 provides: “No person shall be compelled to disclose in any legal proceeding or trial before any court, or before any grand or petit 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, or any committee thereof, or elsewhere, the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.”
Pound, 461 S. W. 2d 345 (1970), as modified on denial of rehearing, Jan. 22, 1971. It held that petitioner had abandoned his First Amendment argument in a supplemental memorandum he had filed and tacitly rejected his argument based on the Kentucky Constitution. It also construed Ky. Rev. Stat. § 421.100 as affording a newsman the privilege of refusing to divulge the identity of an informant who supplied him with information, but 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.
The second case involving petitioner Branzburg arose out of his later story published on January 10, 1971, which described in detail the use of drugs in Frankfort, Kentucky. The article reported that in order to provide a comprehensive survey of the “drug scene” in Frankfort, petitioner had "spent two weeks interviewing several dozen drug users in the capital city” and had seen some of them smoking marihuana. A number of conversations with and observations of several unnamed drug users were recounted. Subpoenaed to appear before a Franklin County grand jury "to testify in the matter of violation of statutes concerning use and sale of drugs,” petitioner Branzburg moved to quash the summons; 5 the motion was denied, al
5 Petitioner's Motion to Quash argued: “If Mr. Branzburg were required to disclose these confidences to the Grand Jury, or any other person, he would thereby destroy the relationship of trust which he presently enjoys with those in the drug culture. They would refuse to speak to him; they would become even more reluctant than they are now to speak to any newsman; and the news media would thereby be vitally hampered in their ability to cover the views and activities of those involved in the drug culture.
“The inevitable effect of the subpoena issued to Mr. Branzburg, if it not be quashed by this Court, will be to suppress
though an order was issued protecting Branzburg from revealing "confidential associations, sources or information” but requiring that he "answer any questions which concern or pertain to any criminal act, the commission of which was actually observed by [him].” Prior to the time he was slated to appear before the grand jury, petitioner sought mandamus and prohibition from the Kentucky Court of Appeals, arguing that if he were forced to go before the grand jury or to answer questions regarding the identity of informants or disclose information given to him in confidence, his effectiveness as a reporter would be greatly damaged. The Court of Appeals once again denied the requested writs, reaffirming its construction of Ky. Rev. Stat. § 421.100, and rejecting petitioner's claim of a First Amendment privilege. It distinguished Caldwell v. United States, 434 F. 2d 1081 (CA9 1970), and it also announced its “misgivings” about that decision, asserting that it represented “a drastic departure from the generally recognized rule that the sources of information of a newspaper reporter are not privileged under the First Amendment.” It characterized petitioner's fear that his ability to obtain
vital First Amendment freedoms of Mr. Branzburg, of the CourierJournal, of the news media, and of those involved in the drug culture by driving a wedge of distrust and silence between the news media and the drug culture. This Court should not sanction a use of its process entailing so drastic an incursion upon First Amendment freedoms in the absence of compelling Commonwealth interest in requiring Mr. Branzburg's appearance before the Grand Jury. It is insufficient merely to protect Mr. Branzburg's right to silence after he appears before the Grand Jury. This Court should totally excuse Mr. Branzburg from responding to the subpoena and even entering the Grand Jury room. Once Mr. Branzburg is required
behind the closed doors of the Grand Jury room, his effectiveness as a reporter in these areas is totally destroyed. The secrecy that surrounds Grand Jury testimony necessarily introduces uncertainties in the minds of those who fear a betrayal of their confidences.” App. 43–44.