Case Study of: Branzburg v. Hayes, 408 U.S. 665 (1972)


The parties involved were Paul Branzburg, Paul Pappas, and Earl Caldwell versus Hon. John P. Hayes, the successor of Judge Pound in the Second Division Jefferson Circuit Court.

Paul Branzburg, a Courier-Journal staff reporter, wrote an article describing his investigation of two young residents of Jefferson County synthesizing hash from marijuana. Paul Pappas, a newsman-photographer, secretly recorded and captured a prepared statement read by a leader of the Black Panthers. Finally, Earl Caldwell, a reporter at the New York Times, covered the Black Panther Party’s activities as well.

Branzburg, Pappas, and Caldwell were all subpoenaed but refused to answer any questions. A state trial court judge ordered Branzburg to answer and rejected his argument that his refusal was protected by the First Amendment. In Branzburg v. Pound, Branzburg tried preventing being subpoenaed against Judge J. Miles Pound, Second Division Criminal Branch of the Jefferson Circuit Court, within the Court of Appeals of Kentucky. It was ruled that “For the reasons herein given we feel that KRS 421.100 does not extend to the petitioner a privilege to refuse to answer the specific questions asked of him by the Jefferson County Grand Jury. The petition for writ of prohibition and writ of mandamus is hereby dismissed.” Pappas was summoned before the Bristol County Grand Jury and he refused to answer any questions, citing the First Amendment protections of the freedom of the press. Caldwell, a case from California, also refused to respond to a subpoena requiring him to produce information gathered about the same group.

Hon. John P. Hayes, the successor of Judge Pound, and other prosecutors held Branzburg, Pappas, and Caldwell in contempt of court. Branzburg, Pappas, and Caldwell challenged their contempt convictions on the ground that the First Amendment protected them. The United States Supreme Court granted certiorari to consider the consolidated cases. Basically, this matter consisted of three separate subjects combined into one appeal for the sake of judicial efficiency.


The question laid upon the court: does the First Amendment allow citizens to not testify before state or federal grand juries if there is a concern that their freedoms of speech and press are being abridged?

Rule of Law:

The rule of law is that the First Amendment allows no protection for withholding confidentially received information from a grand jury.

Justice White wrote in the opinion that the Court found that requiring reporters to disclose confidential information to grand juries served a “compelling” and “paramount” state interest and did not violate the First Amendment and that there is no testimonial privilege for reporters that goes beyond protections for ordinary citizens. Also, civil and criminal laws of general applicability may affect the press and cause some mild burden on speech without violating the First Amendment. Judge Powell concord sating, “In the event that the requested testimony is only tangentially related to the subject of the investigation, a grand jury witness still has the opportunity to quash the subpoena.” Justice Stewart dissented, stating that journalists should not be stripped of their confidentiality that they have and that they hold of their sources, which in return could create a chilling effect on information and new sources as they might fear of being at risk. The petitions filed by Branzburg and Pappas were denied, and their respective states’ decisions ordering them to testify about their sources was affirmed. However, the Caldwell case was eventually reversed.

The majority of decisions were 5 votes for Hayes by Burger, White, Blackmun, Powell, and Rehnquist; while 4 were against Hayes by Douglas, Brennan, Stewart, and Marshall.

Key Quote and Precedent:

“These courts have applied the presumption against the existence of an asserted testimonial privilege, United States v. Bryan, 339 U. S. 323, 339 U. S. 331 (1950), and have concluded that the First Amendment interest asserted by the newsman was outweighed by the general obligation of a citizen to appear before a grand jury or at trial, pursuant to a subpoena, and give what information he possesses,” Justice White wrote in the opinion.

My Opinion:

In my opinion, I believe journalists should have a right to a confidential privileged that lawyers and doctors have for their practices. For a journalist do to their job, I believe there has to be a certain level of trust that needs to be had with their source so journalists can get the information they need. I also believe it does create a chilling effect, as Justice Stewart wrote in his dissent. Sources don’t want to fear that they are going to get caught or in trouble for telling the truth or not.

However, I do understand and to an extent, agree with, that the freedom of the press must always be balanced with a given public interest, and if the public interest outweighs the journalist’s interest, then the journalist must accept that his or her press rights are limited. Sometimes the news cycle can wait, but not all the time.


A 1st Amendment assessment from my COMS 400 Communication Law and Ethics class at Radford University. This is 10 of 10.


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