Branzburg v. Hayes

PETITIONER:Branzburg
RESPONDENT:Hayes
LOCATION: The (Louisville) Courier Journal

DOCKET NO.: 70-85
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Kentucky Supreme Court

CITATION: 408 US 665 (1972)
ARGUED: Feb 23, 1972
DECIDED: Jun 29, 1972

ADVOCATES:
Edwin A. Schroering, Jr. – Argued the cause for the respondents
Edgar A. Zingman – Argued the cause for the petitioner
John T. Corrigan – for the National District Attorneys Association urging reversal in No. 70 57 and affirmance in No. 70—94
William Bradford Reynolds – Argued the cause for the United States as amicus curiae urging affirmance

Facts of the case

After observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. Branzburg refused to testify and potentially disclose the identities of his confidential sources. Similarly, in the companion cases of In re Pappas and United States v. Caldwell, two different reporters, each covering activity within the Black Panther organization, were called to testify before grand juries and reveal trusted information. Like Branzburg, both Pappas and Caldwell refused to appear before their respective grand juries.

Question

Is the requirement that news reporters appear and testify before state or federal grand juries an abridgement of the freedoms of speech and press as guaranteed by the First Amendment?

Warren E. Burger:

Number 70-85, Branzburg against Hayes.

Mr. Zingman you may proceed whenever you’re ready.

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.

William H. Rehnquist:

Mr. Zingman.

Edgar A. Zingman:

Yes sir.

William H. Rehnquist:

Judge Meigs did do more for your client than Judge Pound had, did he not?

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.

William H. Rehnquist:

So at your position and the Judge Miggs order was for practical purpose as the same thing as Judge Pound.

Edgar A. Zingman:

Yes, sir.

Potter Stewart:

The news article, there was only one, was there?

Edgar A. Zingman:

There were two articles.

Potter Stewart:

One appears on pages 3 and 5 of the appendix?

Edgar A. Zingman:

Yes sir and the other appears on pages 30 to 42 of the appendix.

Potter Stewart:

And the first one was published in the Louisville Courier —

Edgar A. Zingman:

Both were published in the Louisville Courier Journal.

Potter Stewart:

Yes, but one had a Dateline Frankfurt.

That was the one beginning in page 30.

Edgar A. Zingman:

Yes, sir.

Potter Stewart:

And the local — am I right?

Edgar A. Zingman:

Local, yes sir.

Potter Stewart:

Did not have a dateline, but it is a local story in the local paper?

Edgar A. Zingman:

Yes sir, the Courier Journal is a daily or general circulation throughout the state.

Potter Stewart:

Throughout the state, right.

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.

Edgar A. Zingman:

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.

Harry A. Blackmun:

Mr. Zingman, let me interrupt you there.

Edgar A. Zingman:

Yes, sir.

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.

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.

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?

Edgar A. Zingman:

Yes, sir.

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.”

Edgar A. Zingman:

I would not —

Potter Stewart:

Why is it confined to a newsman?

We all have the right of free speech, do we not?

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.

Potter Stewart:

Why?

Edgar A. Zingman:

Well, specifically we are talking about press, which is also mentioned in the First Amendment.

Potter Stewart:

They both are equally protected of free press and free speech.

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.

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?

Edgar A. Zingman:

The right of free speech including —

Potter Stewart:

Not inhibiting it is just a direct violation of it, if you are right, in your basic argument.

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 —

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?

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 —

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?

Edgar A. Zingman:

Well, I don’t know whether it would or not, all I can —

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.

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.

Potter Stewart:

The First Amendment protects them both.

Edgar A. Zingman:

Yes it does, and the Court has made a different balancing considerations, and different applications of the First Amendment.

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?

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.

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.

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.

Byron R. White:

They are covered as Mr. Justice Stewart said by the free speech provision.

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.

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?

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.

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?

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.

Warren E. Burger:

Shouldn’t the public have a right to know the sources of that information?

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.

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?

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.

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?

Edgar A. Zingman:

Not under the definition which I offered Mr. Justice Blackmun, I believe of what a newsman is, because —

Warren E. Burger:

Justice Stewart suggested that it’s a difficult distinction to make.

Edgar A. Zingman:

It is a difficult distinction, but when I think, that has to be made.

Warren E. Burger:

But, the reporter is protected and the citizen who writes the letter to the editor is not?

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.

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.

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 —

Warren E. Burger:

This man is using the press, isn’t he, vicariously?

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.

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?

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.

Warren E. Burger:

Under your definition, you would not automatically include all the authors of the federalist papers, would you?

Edgar A. Zingman:

Well, I am not familiar with to what extent they would print, but I would suppose not.

I would suppose not.

William H. Rehnquist:

Mr. Zingman.

Edgar A. Zingman:

Yes, sir.

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?

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.

Thurgood Marshall:

What about to research and write on a book on criminology?

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.

Yes.

Thurgood Marshall:

Author of the book doesn’t uncover?

Edgar A. Zingman:

Not in that sense, no.

Thurgood Marshall:

Well, in this case, your man witnessed a crime, correct?

Edgar A. Zingman:

Yes, sir.

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?

Edgar A. Zingman:

Well —

Thurgood Marshall:

I just want to know how far you’d go with this crime.

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.

Edgar A. Zingman:

And in terms of the third consideration, we would say a Court couldn’t weigh and compel the testimony.

Thurgood Marshall:

Well, suppose they were making a bomb to blow up John Doe, of ordinary citizen, it wouldn’t be covered, would it?

Edgar A. Zingman:

Yes, it would in terms of my third —

Thurgood Marshall:

I thought you said they’d be some of national importance —

Edgar A. Zingman:

National security.

Thurgood Marshall:

— but killing John Doe, isn’t?

Edgar A. Zingman:

National security, human life, or liberty.

Thurgood Marshall:

Well, or liberty?

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.

Thurgood Marshall:

My old problem is, crime is a crime.

Are they not?

Edgar A. Zingman:

Well, I think —

Thurgood Marshall:

You’re going to draw a line among crime.

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.

Thurgood Marshall:

You got another one?

Edgar A. Zingman:

Not at the moment sir.

Thurgood Marshall:

I don’t think so.

Warren E. Burger:

Do you think the Court has ever adopted Mr. Justice Jackson’s view of that bifurcation of the Amendment?

Edgar A. Zingman:

I have known of no specific application, but I suggest that it is not unreasonable argument at all.

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?

Edgar A. Zingman:

Subpoena the reporter?

William H. Rehnquist:

Yes.

Edgar A. Zingman:

In under our balance and test, that would be possible, yes.

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?

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.

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?

Edgar A. Zingman:

That is correct.

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?

Edgar A. Zingman:

I thank you Mr. Justice Stewart, I have misunderstood Mr. Justice Rehnquist’s question.

Potter Stewart:

Maybe I did also, but I —

Edgar A. Zingman:

I deal solely with confidentiality, yes sir.

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 —

Edgar A. Zingman:

Information.

Byron R. White:

–to information.

Edgar A. Zingman:

Yes sir.

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 —

Edgar A. Zingman:

Our argument is that the judgment must be left to the newsman as to what he will publish or not publish.

Byron R. White:

And he may suppress newsworthy information in order to, publish some of it.

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.

Byron R. White:

And also, he’s got the judgment as to when to publish?

Edgar A. Zingman:

Yes, sir.

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.”

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 —

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?

Edgar A. Zingman:

I don’t disagree with that.

It may have elements of felony on it.

The sources of information would be withheld.

Edgar A. Zingman:

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 —

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?

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.

Byron R. White:

Awhile ago, I thought you said that up to now they hadn’t been able to get this information?

Edgar A. Zingman:

Oh!

No, sir.

Byron R. White:

And that’s why —

Edgar A. Zingman:

This case demonstrates —

Byron R. White:

— that it’s only recently that newsman has been able to get into this inner circle.

Edgar A. Zingman:

No, sir.

Byron R. White:

So I suggest that your parade of horribles and then he takes us back.

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.

Thank you.

Lewis F. Powell, Jr.:

What was then which you mentioned essential to your submission or with in-camera proceedings be acceptable?

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.

Potter Stewart:

And before whom should that hearing be?

Edgar A. Zingman:

Trial judge.

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?

Edgar A. Zingman:

I agree with that.

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 —

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.

Edgar A. Zingman:

The two questions were read to the trial judge and the petitioner was directed by the trial judge to answer those questions.

Potter Stewart:

Well, because the trial judge said, “I am not going to interfere with the traditional freedom of a grand jury.”

Correct?

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 —

Potter Stewart:

There may be even lawyers and judges have been saying this to each other for a good many centuries.

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.

Byron R. White:

Could I ask you just one question?

Do you claim the same privilege for (Inaudible)?

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.

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.

Edgar A. Zingman:

Yes, sir.

Byron R. White:

And he didn’t even appear?

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.

Byron R. White:

But only the claim is privilege?

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.

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.

Edgar A. Zingman:

Thank you, Mr. Chief Justice.

Warren E. Burger:

We’ll adjust the other time accordingly.

Edgar A. Zingman:

Thank you.

Warren E. Burger:

Mr. Schroering.

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 —

William O. Douglas:

Is your only brief this little 3, 4-page brief?

Edwin A. Schroering, Jr.:

That’s correct Mr. Justice Douglas.

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?

Edwin A. Schroering, Jr.:

Yes.

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?

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.

William O. Douglas:

What particular part in religion that do you believe in socialist?

Edwin A. Schroering, Jr.:

You mean as a general principle?

William O. Douglas:

I mean, everything goes in these —

Edwin A. Schroering, Jr.:

No.

William O. Douglas:

The State can compel everybody to do anything?

Edwin A. Schroering, Jr.:

No.

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?

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 —

William O. Douglas:

No, I am just amazed on this little 3-page.

You treat it as almost a frivolous question.

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 —

William O. Douglas:

You don’t cite any cases in your brief.

Edwin A. Schroering, Jr.:

Variety versus Lead (ph) is cited.

That is a case decided by the Court of Appeals of Kentucky —

William O. Douglas:

I see it.

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.

Edwin A. Schroering, Jr.:

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 —

Thurgood Marshall:

But the same State of Kentucky, through its judiciary said that statute just under (Inaudible).

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 —

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.

Edwin A. Schroering, Jr.:

That’s correct.

Thurgood Marshall:

And it said that it doesn’t apply.

Edwin A. Schroering, Jr.:

That is correct it does not apply.

Thurgood Marshall:

So how do you make a case?

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 —

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.

Edwin A. Schroering, Jr.:

That’s correct.

Thurgood Marshall:

And that’s the one that’s here.

Edwin A. Schroering, Jr.:

No, there are two cases here Mr. Justice —

Thurgood Marshall:

Well, that was here.

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.

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.

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.

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?

Edwin A. Schroering, Jr.:

That’s correct!

Edwin A. Schroering, Jr.:

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.

Potter Stewart:

You mean of the —

Edwin A. Schroering, Jr.:

Excuse me, on the prosecution, I’m very sorry.

Potter Stewart:

The grand jury often investigates the police, does it not?

Edwin A. Schroering, Jr.:

Often it does, and that —

Potter Stewart:

Particularly, in certain counties of Kentucky, in our experience.

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.

Potter Stewart:

Is there a grand jury empanelled, you say every month in each county in Kentucky?

Edwin A. Schroering, Jr.:

No.

Potter Stewart:

Or did I not understand you?

Edwin A. Schroering, Jr.:

No.

During the terms in the smaller judicial districts, but every month in Courts of continuous session as we have.

Potter Stewart:

How many counties in Kentucky?

Edwin A. Schroering, Jr.:

120.

William O. Douglas:

Does the prosecutor or the police in Kentucky use newspapermen as agents, or runners, or investigators?

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.

Edwin A. Schroering, Jr.:

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.

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.

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 —

William O. Douglas:

— the law maybe, have you ever been to a Palestinian country?

You’ve been to Russia?

Edwin A. Schroering, Jr.:

I have not Mr. Justice Douglas, been to Russia.

William O. Douglas:

— oppressed or kind of oppressed that you have under a regiment society?

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.

William O. Douglas:

Then you made every reporter a runner for the government in every case?

Edwin A. Schroering, Jr.:

If we assumed that that is a function of the grand jury, to be an arm of the government —

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.

Edwin A. Schroering, Jr.:

You mean that each of these agencies would thereby employ the press to do their job for them.

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.

Thurgood Marshall:

You wouldn’t be employing them, because you don’t pay them.

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?

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?

Edwin A. Schroering, Jr.:

Not necessarily.

Thurgood Marshall:

Well, how would you say they’re so great, how could they be doing the job if they didn’t?

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.

Thurgood Marshall:

Well then, wouldn’t it be too that once they publish the story, they volunteer as a witness?

Edwin A. Schroering, Jr.:

They are subject to being subpoenaed before the Grand Jury.

Thurgood Marshall:

And wouldn’t they be subpoenaed?

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.

Thurgood Marshall:

Well I think, if I understand this case correctly, he did raise the privilege, and it was denied.

Edwin A. Schroering, Jr.:

It was denied —

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?

Edwin A. Schroering, Jr.:

Only if there is an indication that he is also a witness to the crime in Kentucky.

Thurgood Marshall:

Well, I am saying the case of this type.

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.

Edwin A. Schroering, Jr.:

He was told —

William O. Douglas:

He’s not walking down the street and sees a bank being held up, that’s not this case, is it?

Edwin A. Schroering, Jr.:

No, but this case is one where —

William O. Douglas:

But he got confidential information.

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.

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.

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 —

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?

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.

[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?

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.

[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.

Edwin A. Schroering, Jr.:

That’s correct.

Do you agree with this order in that respect?

Edwin A. Schroering, Jr.:

I believe that he probably modeled that ordered after Caldwell.

He know that he did, but I want to know whether you agree with him or not.

Edwin A. Schroering, Jr.:

I do not agree with the Caldwell decision.

Warren E. Burger:

Well, was his order not reflecting in part the statute to the Commonwealth of Kentucky?

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.

William H. Rehnquist:

The State didn’t appeal from that portions of Judge Meigs order that were adverse to it.

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.

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?

Edwin A. Schroering, Jr.:

They can be.

Thurgood Marshall:

Well, aren’t they is the question.

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 —

Thurgood Marshall:

Well, are they issued in the name of its legal adviser?

Edwin A. Schroering, Jr.:

Its legal adviser.

They serve the grand jury, and give recommendations to that grand jury.

Warren E. Burger:

Thank you Mr. Schroering.

Edwin A. Schroering, Jr.:

Thank you.

Warren E. Burger:

Mr. Reynolds.

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.

This is cited under the guidelines of the Attorney General, that —

William Bradford Reynolds:

I don’t believe the Attorney General guidelines would apply to these cases.

Their state —

I understand, I say if they did apply, would there be immunity?

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.

But those guidelines are in the brief of the Caldwell case, I was wondering, has there been any litigation under those?

William Bradford Reynolds:

Not to my knowledge at the present time.

I’m not aware of any case as far.

If the guidelines did apply, this was a federal situation, would be a matter of negotiation between the Attorney General and the press.

William Bradford Reynolds:

Essentially that is correct, Your Honor.

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?

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 —

You said the guidelines are based on a recognition “of limiting effects on the exercise of First Amendment rights.”

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.

William Bradford Reynolds:

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 —

Thurgood Marshall:

Do you recognize the fact that many areas has worked out in the prosecutor’s office?

William Bradford Reynolds:

In many areas?

Thurgood Marshall:

Worked out in the prosecutor’s office with the newspaper, isn’t that true?

William Bradford Reynolds:

What is worked out?

Thurgood Marshall:

As to what information will be divulge and what will not.

William Bradford Reynolds:

I think that that —

Thurgood Marshall:

It is being done everyday.

William Bradford Reynolds:

I think that that is —

Warren E. Burger:

Aren’t the Attorney General’s guidelines manifestation of that very thing?

William Bradford Reynolds:

I think that is correct.

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?

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.

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?

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.

Warren E. Burger:

We will allow you five minutes counsel.

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.

Edgar A. Zingman:

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 —

Warren E. Burger:

I think that’s been considerably eroded, has it not?

Edgar A. Zingman:

Well, and I think if necessarily so, but its still is established and it’s a right that they urge —

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?

Edgar A. Zingman:

We have the appearance issue on the threshold, but —

The threshold issue.

Edgar A. Zingman:

Yes, sir.

And that is generally required, is it not?

Edgar A. Zingman:

Yes sir, but —

Except as I learned yesterday of the oppressed in the United States.

Edgar A. Zingman:

[Laughter]Yes sir.

I went to Yale too, and maybe they didn’t teach us that.[Laughter]

I would —

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.

Edgar A. Zingman:

We agree.

That’s common grounds, is it not?

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.

Edgar A. Zingman:

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.

Thank you.

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?

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.

Warren E. Burger:

Very well, thank you gentlemen.

This case is — excuse me.

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?

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.

William H. Rehnquist:

But not necessarily witnessing the commission of a crime?

Edgar A. Zingman:

No, sir.

Warren E. Burger:

And that’s what this case is about, isn’t it —

Edgar A. Zingman:

These cases are witnessing of crime, that’s the hard case.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.