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STEWART, J., dissenting

Amendment decisions arising in other contexts. The requirements militate against vague investigations that, like vague laws, create uncertainty and needlessly discourage First Amendment activity.29 They also insure that a legitimate governmental purpose will not be pursued by means that "broadly stifle fundamental personal liberties when the end can be more narrowly achieved.” Shelton, supra, at 488.30 As we said in Gibson, supra, “Of course, a legislative investigation—as any investigation-must proceed ‘step by step,' ... but step by step or in totality, an adequate foundation for inquiry must be laid before proceeding in such a manner as will substantially intrude upon and severely curtail or inhibit constitutionally protected activities or seriously interfere with similarly protected associational rights.” 372 U. S., at 557.

I believe the safeguards developed in our decisions involving governmental investigations must apply to the grand jury inquiries in these cases. Surely the function of the grand jury to aid in the enforcement of the law is no more important than the function of the legislature, and its committees, to make the law. We have long recognized the value of the role played by legislative investigations, see, e. g., United States v. Rumely,

29 See Watkins, supra, at 208–209. See generally Baggett v. Bullitt, 377 U. S. 360, 372; Speiser v. Randall, 357 U. S. 513, 526; Ashton v. Kentucky, 384 U. S. 195, 200–201; Dombrowski v. Pfister, 380 U. S. 479, 486; Smith v. California, 361 U. S., at 150–152; Winters v. New York, 333 U. S. 507; Stromberg v. California, 283 U. S., at 369. See also Note, The Chilling Effect in Constitutional Law, 69 Col. L. Rev. 808 (1969).

30 See generally Zwickler v. Koota, 389 U. S. 241, 249–250, and cases cited therein; Coates v. Cincinnati, 402 U. S. 611, 616; Cantwell v. Connecticut, 310 U. S. 296, 307; De Jonge v. Oregon, 299 U. S., at 364–365; Schneider v. State, 308 U. S. 147, 164; Cox v. Louisiana, 379 U. S. 559, 562–564. Cf. NAACP v. Button, 371 U. S. 415, 438. See also Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844 (1970).

STEWART, J., dissenting

408 U.S.

345 U. S. 41, 43; Barenblatt v. United States, 360 U. S. 109, 111-112, for the “power of the Congress to conduct investigations is inherent ... [encompassing) surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.” Watkins, supra, at 187. Similarly, the associational rights of private individuals, which have been the prime focus of our First Amendment decisions in the investigative sphere, are hardly more important than the First Amendment rights of mass circulation newspapers and electronic media to disseminate ideas and information, and of the general public to receive them. Moreover, the vices of vagueness and overbreadth that legislative investigations may manifest are also exhibited by grand jury inquiries, since grand jury investigations are not limited in scope to specific criminal acts, see, e. g., Wilson v. United States, 221 U. S. 361, Hendricks v. United States, 223 U. S. 178, 184, United States v. Johnson, 319 U. S. 503, and since standards of materiality and relevance are greatly relaxed. Holt v. United States, 218 U. S. 245; Costello v. United States, 350 U. S. 359. See generally Note, The Grand Jury as an Investigatory Body, 74 Harv. L. Rev. 590, 591-592 (1961).31 For, as the United States notes in its brief in Caldwell, the

31 In addition, witnesses customarily are not allowed to object to questions on the grounds of materiality or relevance, since the scope of the grand jury inquiry is deemed to be of no concern to the witness. Carter v. United States, 417 F. 2d 384, cert. denied, 399 U. S. 935. Nor is counsel permitted to be present to aid a witness. See In re Groban, 352 U. S. 330.

See generally Younger, The Grand Jury Under Attack, pt. 3, 46 J. Crim. L. C. & P. S. 214 (1955); Recent Cases, 104 U. Pa. L. Rev. 429 (1955); Watts, Grand Jury: Sleeping Watchdog or Expensive Antique, 37 N. C. L. Rev. 290 (1959); Whyte, Is the Grand Jury Necessary?, 45 Va. L. Rev. 461 (1959); Note, 2 Col. J. Law & Soc. Prob. 47, 58 (1966); Antell, The Modern Grand Jury: Benighted Supergovernment, 51 A. B. A. J. 153 (1965); Orfield, The Federal Grand Jury, 22 F. R. D. 343.

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grand jury "need establish no factual basis for commencing an investigation, and can pursue rumors which further investigation may prove groundless.”

Accordingly, when a reporter is asked to appear before a grand jury and reveal confidences, I would hold that the government must (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; 32 (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.33

This is not to say that a grand jury could not issue a subpoena until such a showing were made, and it is not to say that a newsman would be in any way privileged to ignore any subpoena that was issued. Obviously, before the government's burden to make such a showing were triggered, the reporter would have to move to quash the subpoena, asserting the basis on which he considered the particular relationship a confidential one.

32 The standard of proof employed by most grand juries, federal and State, is simply "probable cause” to believe that the accused has committed a crime. See Note, 1963 Wash. U. L. Q. 102; L. Hall et al., Modern Criminal Procedure 793-794 (1969). Generally speaking, it is extremely difficult to challenge indictments on the ground that they are not supported by adequate or competent evidence. Cf. Costello v. United States, 350 U. S. 359; Beck v. Washington, 369 U. S. 541.

33 Cf. Garland v. Torre, 259 F. 2d 545. The Court of Appeals for the Second Circuit declined to provide a testimonial privilege to a newsman called to testify at a civil trial. But the court recognized a newsman's First Amendment right to a confidential relationship with his source and concluded: “It is to be noted that we are not dealing here with the use of the judicial process to force a wholesale disclosure of a newspaper's confidential sources of news, nor with a case where the identity of the news source is of doubtful relevance or materiality. ... The question asked ... went to the heart of the plaintiff's claim.” Id., at 549–550 (citations omitted).

STEWART, J., dissenting

408 U.S.

B

The crux of the Court's rejection of any newsman's privilege is its observation that only "where news sources themselves are implicated in crime or possess information relevant to the grand jury's task need they or the reporter be concerned about grand jury subpoenas.” See ante, at 691 (emphasis supplied). But this is a most misleading construct. For it is obviously not true that the only persons about whom reporters will be forced to testify will be those "confidential informants involved in actual criminal conduct” and those having “information suggesting illegal conduct by others.” See ante, at 691, 693. As noted above, given the grand jury's extraordinarily broad investigative powers and the weak standards of relevance and materiality that apply during such inquiries, reporters, if they have no testimonial privilege, will be called to give information about informants who have neither committed crimes nor have information about crime. It is to avoid deterrence of such sources and thus to prevent needless injury to First Amendment values that I think the government must be required to show probable cause that the newsman has information that is clearly relevant to a specific probable violation of criminal law. 34

the press.

34 If this requirement is not met, then the government will basically be allowed to undertake a "fishing expedition” at the expense of

Such general, exploratory investigations will be most damaging to confidential news-gathering relationships, since they will create great uncertainty in both reporters and their sources. The Court sanctions such explorations, by refusing to apply a meaningful "probable cause” requirement. See ante, at 701-702. As the Court states, a grand jury investigation “may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors.” Ante, at 701. It thereby invites government to try to annex the press as an investigative arm, since any time government wants to probe the relationships between the

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STEWART, J., dissenting

Similarly, a reporter may have information from a confidential source that is “related” to the commission of crime, but the government may be able to obtain an indictment or otherwise achieve its purposes by subpoenaing persons other than the reporter. It is an obvious but important truism that when government aims have been fully served, there can be no legitimate reason to disrupt a confidential relationship between a reporter and his source. To do so would not aid the administration of justice and would only impair the flow of information to the public. Thus, it is to avoid deterrence of such sources that I think the government must show that there are no alternative means for the grand jury to obtain the information sought.

Both the "probable cause” and “alternative means” requirements would thus serve the vital function of mediating between the public interest in the administration of justice and the constitutional protection of the full flow of information.) These requirements would avoid a direct conflict between these competing concerns, and they would generally provide adequate protection for newsmen. See Part III, infra.

See Part III, infra. 35 No doubt the courts would be required to make some delicate judgments in working out this accommodation. But that, after all,

newsman and his source, it can, on virtually any pretext, convene a grand jury and compel the journalist to testify.

The Court fails to recognize that under the guise of “investigating crime” vindictive prosecutors can, using the broad powers of the grand jury which are, in effect, immune from judicial supervision, explore the newsman's sources at will, with no serious law enforcement purpose. The secrecy of grand jury proceedings affords little consolation to a news source; the prosecutor obviously will, in most cases, have knowledge of testimony given by grand jury witnesses.

35 We need not, therefore, reach the question of whether government's interest in these cases is "overriding and compelling." I do not, however, believe, as the Court does, that all grand jury investigations automatically would override the newsman's testimonial privilege.

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