RESPONDENT: Earl Caldwell
LOCATION: University of Wisconsin-Oshkosh
DOCKET NO.: 70-57
DECIDED BY: Burger Court (1972-1975)
CITATION: 408 US 665 (1972)
ARGUED: Feb 22, 1972
DECIDED: Jun 29, 1972
Anthony G. Amsterdam - Argued the cause for the respondents
Erwin N. Griswold - Solicitor General, argued the cause for the United States
Facts of the case
Earl Caldwell, a reporter for the New York Times assigned to cover the Black Panther Party, was served a subpoena to appear before a federal grand jury investigating possible criminal violations by the party. The subpoena required him to testify in secret about the party's activities. Arguing that testifying would destroy his relationship with sources within the party and thereby "suppress vital First Amendment freedoms . . . by driving a wedge of distrust and silence between the news media and the militants," Caldwell and his employer filed a motion to quash the subpoena.
A Federal District Court denied the motion to quash, but Caldwell nonetheless refused to testify and was held in contempt. Caldwell appealed, and the United States Court of Appeals for the Ninth Circuit reversed the contempt order on the grounds that requiring Caldwell to testify would cause him to limit the scope of future reporting, amounting to censorship and violating the First Amendment protection of freedom of the press.
Did the First Amendment's protection of freedom of the press protect Caldwell from appearing and testifying before the grand jury?
Media for United States v. Caldwell
Audio Transcription for Oral Argument - February 22, 1972 in United States v. Caldwell
Warren E. Burger:
-- number 70-57, United State against Caldwell.
Mr. Solicitor General.
Erwin N. Griswold:
May it please the Court.
This case is here on a writ of certiorari to review a decision of the Ninth Circuit Court of Appeals.
The question raised relates to the obligation of a newspaperman to appear before a grand jury.
The court below held that he need not even appear.
We think that decision was wrong, and that it goes far beyond anything that can be found in the words of the First Amendment, and beyond anything that can fairly or properly be implied from that provision.
The case arises in this setting.
In November 1969, David Hilliard, the Chief of Staff of the Black Panther Party, stated publicly in a speech, “We will kill Richard Nixon.”
This speech was televised live, and rebroadcast over many stations.
As a result Hilliard was indicted in December 1969, charged with making threats against the life of the President of the United States contrary to Section 871 of Title 18 of the United States Code.
The threat was repeated in three subsequent issues of the weekly periodical called 'The Black Panther.
' Numerous public statements of a similar nature were reported as being made during the same period by members or friends of the Black Panther Party in various parts of the country.
The respondent in this case, Mr. Caldwell, is a newspaper man, employed by the New York Times.
He wrote a series of articles about the Black Panther Party, three of which appear in the printed record.
One of these was published in the New York Times on December 14, 1969.
It appears in full at pages 11 to 16, of the Appendix.
In this article, the respondent reported on a conversation he had with Hilliard and others at the Panther's Headquarters in Berkeley California.
He quoted Hilliard as making the following statement, and this appears on page 13 of the record.
“We are special,” Mr. Hilliard said recently, “We advocate the very direct overthrow of the Government by way of force and violence, by picking up guns and moving against it because we recognize it as being oppressive and in recognizing that we know that the only solution to it is armed struggle.”
And then Mr. Caldwell went to say in the article, "In their role as the vanguard in a revolutionary struggle, the Panthers have picked up guns.”
Some weeks after the publication of this article, the first subpoena was issued to Mr. Caldwell, on January 30, 1970.
This was a subpoena duces tecum.
It appears on page 20 of the Appendix, but it was not pressed and it is now involved in this case.
The second subpoena was issued on March 15, 1970, it appears on page 21 of the Appendix.
It is a subpoena to testify only.
Most of the proceedings in the District Court were taken with respect to it, but the grand jury to which that subpoena was returnable, expired early in May, 1970.
A new grand jury was in empaneled and a new subpoena, the third subpoena was served on May 22, 1970.
It's that subpoena which is involved here.
The decision of the District Court related to it, but by order of the District Court, the proceedings relating to the earlier subpoena were incorporated into these proceedings, and therefore, we refer to one or the other interchangeably.