First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

News organizations have claimed that the First Amendment compels a reporter’s privilege: an exception to the ancient rule that every citizen owes to his government a duty to give what testimony he is capable of giving.1 The Court rejected the argument for a limited exemption permitting reporters to conceal their sources from a grand jury and to keep confidential certain information they obtain and choose at least for the moment not to publish in Branzburg v. Hayes.2 Emphasizing the importance of the grand jury in creating a “[f]air and effective law enforcement [system] aimed at providing security for the person and property of the individual,” the Court concluded the public interest “in ensuring effective grand jury proceedings” overrode “the consequential, but uncertain, burden on news gathering” that would result from requiring reporters to respond to relevant grand jury questions.3 Not only was it uncertain to what degree confidential informants would be deterred from providing information, said Justice Byron White for the Court, but the conditional nature of the alleged reporter’s privilege might not mitigate the deterrent effect, eventually leading to claims for an absolute privilege. Confidentiality could be protected by the secrecy of grand jury proceedings and by the experience of law enforcement officials in themselves dealing with informers. Difficulties would arise as well in identifying who should have the privilege and who should not. But the principal basis of the holding was that the investigation and exposure of criminal conduct was a governmental function of such importance that it overrode the interest of reporters in avoiding the incidental burden on their newsgathering activities occasioned by such governmental inquiries.4

The Court observed that Congress, as well as state legislatures and state courts, are free to adopt privileges for reporters.5 As for federal courts, Federal Rule of Evidence 501 provides that the common law generally governs a claim of privilege.6 The federal courts have not resolved whether the common law provides a journalists’ privilege.7

Nor does the status of an entity as a newspaper (or any other form of news medium) protect it from issuance and execution on probable cause of a search warrant for evidence or other material properly sought in a criminal investigation, the Court held in Zurcher v. Stanford Daily.8 The press had argued that to permit searches of newsrooms would threaten the ability to gather, analyze, and disseminate news, because searches would be disruptive, confidential sources would be deterred from coming forward with information because of fear of exposure, reporters would decline to put in writing their information, and internal editorial deliberations would be exposed. The Court thought that First Amendment interests were involved, but it seemed to doubt that the consequences alleged would occur. It observed that the built-in protections of the warrant clause would adequately protect those interests and noted that magistrates could guard against abuses when warrants were sought to search newsrooms by requiring particularizations of the type, scope, and intrusiveness that would be permitted in the searches.9

Footnotes

1

8 J. Wigmore, Evidence 2192 (3d ed. 1940). See Blair v. United States, 250 U.S. 273, 281 (1919); United States v. Bryan, 339 U.S. 323, 331 (1950).

2

408 U.S. 665 (1972). “The claim is, however, that reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future. This asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them.” Id. at 682.

3

408 U.S. at 690–91. The cases consolidated in Branzburg all involved grand juries, so the reference to criminal trials should be considered dictum.

4

Chief Justice Warren Burger and Justices Harry Blackmun, Lewis Powell, and William Rehnquist joined the Court’s opinion. Justice Lewis Powell, despite having joined the majority opinion, also submitted a concurring opinion in which he suggested a privilege might be available if, in a particular case, “the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement.” Id. at 710. Justice Potter Stewart’s dissenting opinion in Branzburg referred to Justice Lewis Powell’s concurring opinion as “enigmatic.” Id. at 725. Judge Tatel of the D.C. Circuit wrote, “Though providing the majority’s essential fifth vote, he [Justice Lewis Powell] wrote separately to outline a ‘case-by-case’ approach that fits uncomfortably, to say the least, with the Branzburg majority’s categorical rejection of the reporters’ claims.” In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 987 (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005) (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006).

One commentator noted that: “courts in almost every circuit around the country interpreted Justice Lewis Powell’s concurrence, along with parts of the Court’s opinion, to create a balancing test when faced with compulsory process for press testimony and documents outside the grand jury context.” Ass’n of the Bar of the City of New York, The Federal Common Law of Journalists’ Privilege: A Position Paper 4–5 (2005), http://www.abcny.org/pdf/report/White%20paper%20on%20reporters%20privilege.pdf (citing examples).

5

408 U.S. at 706.

6

Rule 501 also provides that, in civil actions and proceedings brought in federal court under state law, the availability of a privilege shall be determined in accordance with state law. Rule 501-Privilege in General, Federal Rules of Evidence (ed. 2023)

7

See, e.g., In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 972 (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005) (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006) (U.S. Court of Appeals for the District of Columbia “is not of one mind on the existence of a common law privilege” ).

8

Zurcher v. Stanford Daily, 436 U.S. 547, 563–67 (1978). Justice Lewis Powell thought it appropriate that “a magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment” when he assesses the reasonableness of a warrant in light of all the circumstances. Id. at 568 (concurring). Justices Potter Stewart and Thurgood Marshall would have imposed special restrictions upon searches when the press was the object, id. at 570 (dissenting), and Justice John Paul Stevens dissented on Fourth Amendment grounds. Id. at 577.

9

Congress enacted the Privacy Protection Act of 1980, Pub. L. No. 96-440, 94 Stat. 1879 (codified as amended at 42 U.S.C. § 2000aa), to protect the press and other persons having material intended for publication from federal or state searches in specified circumstances, and creating damage remedies for violations.