August 2015 Bar Bulletin
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August 2015 Bar Bulletin

My "Lou Grant" Moment

Freedom of the Press and the First Amendment

By Gene Barton


Every newspaper reporter worth his ink aspires to one day make a First Amendment stand to uphold the freedom of the press.

The most common such scenario, or at least the one that has garnered the most headlines and - I believe - generated the most significant case law on Fourth Estate/First Amendment jurisprudence, is the reporter protecting his or her confidential source against efforts by the courts to compel the reporter to give up the source's name or face a stint in jail for contempt.

This was a topic of some interest in my First Amendment class at the University of Missouri School of Journalism in the mid-1970s, especially given the fact that Watergate and the most famous confidential source of all time, Deep Throat, had been in the news for a while. According to my textbook from that class (yes, I still have it),1 it was also just a few years after the U.S. Supreme Court first ruled on whether the First Amendment protects newsmen from testifying about their confidential sources.

The case was Branzburg v. Hayes.2 It involved three reporters - Paul Branzburg, Paul Pappas and Earl Caldwell - who refused to testify before grand juries about their confidential sources. Branzburg had observed and written about synthesizing hashish from marijuana. Pappas had visited Black Panther headquarters during a period of civil turmoil in 1970 and refused to testify about what he had seen there. Caldwell refused to testify about Black Panther activities he had observed over a number of years.

Only Caldwell prevailed in the lower courts. Both the U.S. District Court in California and the Ninth Circuit ruled that the First Amendment provided a qualified privilege to newsmen and that it applied to Caldwell.3 The state courts in Kentucky and Massachusetts ruled against Branzburg and Pappas, respectively.4

The U.S. Supreme Court denied relief to all three. Principally it rejected the premise recognized by the lower courts in Caldwell to protect the news gathering process, stating:

It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.... Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings, our own conferences [and] the meetings of other official bodies gathered in executive session....5

As to the reporters' claim that the First Amendment should take precedence over the grand jury's power of inquiry, the Court stated that at common law courts consistently rejected a press privilege to refuse to reveal confidential information, further noting that a First Amendment privilege had been denied uniformly in earlier cases, in which the courts had concluded:

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