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
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.
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?
Media for Branzburg v. Hayes
Audio Transcription for Oral Argument - February 23, 1972 in Branzburg v. Hayes
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:
Edgar A. Zingman: