Branzburg v. Hayes (1972)

First and only case in which the Supreme Court addressed the issue of whether a Journalist has a First Amendment privilege to refuse to testify in a judicial proceeding.

A consolidation of four cases involving three journalists subpoenaed by grand juries to reveal confidential sources or testify about sources’ alleged criminal activities.  Journalists argued their First Amendment rights would be violated if they were forced to disclose confidential information to grand juries.

Justices had split opinions, but the majority concluded that while newsgatherers have some First Amendment protection, a journalist does not have an absolute First Amendment based privilege.  The Court decision did warn that subpoenas must not be used to harass the media or interfere with the journalist-source relationship.

During this case, the Stewart Principles were formed to try to create a balance, putting the burden of proof on the prosecution in order to compel a journalist to testify in a criminal proceeding.  The prosecution must prove:

1. There is probable cause to believe that the newsman has information that is clearly relevant to a specific violation of law.
2. The information cannot be obtained by alternative means less destructive of First Amendment rights.
3. There is a compelling and overriding interest in the information

Though denying First Amendment privilege, the Supreme Court acknowledged that Congress and state legislatures have the power to pass statutes to create a testimonial privilege for journalists who need protection.

“Until now the only testimonial privilege for unofficial witnesses that is roorted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination.  We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do no enjoy.  This we decline to do.”

- Branzburg v. Hayes, 408 U.S. 665, 1972

See ‘A Federal Statute?’ and ‘Subpoenas and Warrants’ entries to understand why there is currently no federal shield law and how Congress has acted to provide limited protection.

Sources

Branzburg v. Hayes, 408 U.S. 665, 1972

Gomsak, Mark. “The Free Flow of Information Act of 2006: Settling the Journalist’s Privilege Debate.” 45 Brandeis L.J. 597, Spring 2007.

Overbeck, Wayne. Major Principles of Media Law, 2007 Ed. Wadsworth, 2007. P 325

Pember, Don R. and Calvert, Clay. Mass Media Law, 17^th Edition. McGraw-Hill, 2011.