Thompson v. Washington Opinion

    Ko.

\vL to of to
OoTOBEE Teem, 1970

U nited S tates of A mebic a, petitionee 

E ael Caldwell

PETITION FOE A W EIT OP CEETIOEAEI TO THE ITNITED 
STATES COUET OP APPEALS FOE THE NINTH GIECUIT

e e w i n  3sr. g e i s w o l d ,
SoUoltpr General,

W3XL WILSON,
Assistant Attorney General, 

BEAXEICE ROSENBEEG,
SIDNEY M. GLAZER,
,1 Attorneys,

Department of Justice, 
Washington, B.C. W5S0.



I N D E X
Page

Opinions below______________________________________  1
Jurisdiction_________________________________________  1
Question presented___________________________________  2
Statement__________________________________________  2
Keasons for granting writ_____________________________ 6
Conclusion__________________________________________  10
Appendix A_________________________________________  11
Appendix B _________________________________________  33
Appendix C_________________________________________  34

C IT A T IO N S

Cases:
Alderman v. United States, 394 U.S. 165____________  3
Blair v. United States, 250 U.S. 273________________  7
Brown v. Walker, 161 U.S. 591_____________   7
Garland v. Torre, 259 F. 2d 545, certiorari denied,

358 U.S. 910__________________________________  6
Hale V. Henkel, 201 U.S. 43_______________________  7
Katz V . United States, 389 U.S. 347________________  7
Roviaro v. United States, 353 U.S. 53________________ 7
United States v. Bryan, 339 U.S. 323________________ 7

Eule:
Kule 6(g) F.K. Cr. P_____________________________ 2

(I)

411- 861— 70-



Jn ih Ofowrl of tfe MnM plates
October T erm , 1970

J7o.

U nited S tates of A aierica, petitioner

V.

E arl Caldwell

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the United States 
of America, petitions for a writ of certiorari to review 
the judgment of the United States Court of Appeals 
for the Mnth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra) 
is not yet reported. The opinion of the district court 
is reported at 311 F. Supp. 358.

j u r i s d i c t i o n

The judgment of the court of appeals was entered 
on November 16, 1970 (App. B, infra). The jurisdic­
tion of this Court is invoked under 28 U.S.C. 1254(1).

(I)



QUESTION PRESENTED

Whether a newspaper reporter who has published 
articles about an organization can, under the First 
Amendment, properly refuse to appear before a grand 
jury investigating possible crimes by members of that 
organization who have been quoted in the published 
articles.

STATEMENT

On June 5, 1970, the district court found respondent 
Caldwell, a newspaper reporter, guilty of civil con­
tempt for refusing to appear before a federal grand 
jury in the ISTorthern District of California (1 R. 44- 
46).  ̂ On appeal, the contempt judgment was reversed.

Respondent, a reporter for the New York Times, 
has written a number of articles published in that news­
paper about the Black Panther Party. In an article 
published in the Times on December 14,1969, he quoted 
David Hilliard, a Panther leader, as saying that the 
only solution to oppressive government is “armed 
struggle.” The article also reported that the “Panthers 
have picked up guns” in their revolutionary struggle. 
At the time of its publication Hilliard was under in­
dictment for threatening to kill the President, having

1 The district court committed respondent to imprisonment 
until such time as he might express an intent to testify or until 
such time as the term of the grand jury expires, whichever is 
earlier. It stayed its order pending the final disposition of the 
appeal. Under Eule 6(g), F.E. Cr. P., no grand jury may serve- 
more than 18 months. The grand jury here was empaneled on 
May 7, 1970, succeeding a prior grand jury. See note 4, p. 4, infra.



stated in a public speech that ‘'We will kill Richard 
Mxon.” ^

Subsequently, respondent was subpoenaed to appear 
before a federal grand jury investig'ating, among 
other things, activities of members of the Panthers. 
He moved to quash the subpoena on the ground that, 
as a reporter, he should be relieved of any obligation 
to appear before the grand jury under the First 
Amendment. Alternatively, he requested a protective 
order prohibiting grand jury interrogation “concern­
ing any confidential interviews or information which 
he had obtained exclusively by confidential interviews” 
(2 R. 1-2, 29).'® This, he asserted, would include all 
unpublished interviews with the Panthers; however, he 
indicated a willingness to affirm “before the grand 
jury—or in any other place—the authenticity of 
quotations attributed to Black Panther sources in his 
published articles” (2 R. 11, see 2 R. 49). Respond- 
enPs position rested essentially on the claim that his 
appearance alone at the secret proceedings would be 
interpreted by the Black Panthers “ as a possible dis­
closure of confidences and trusts” that would cause 
“the Panthers and other groups” to refuse to speak to 
him and destroy his effeetiveness as a new^spaperman 
(2R. 50-51).

 ̂This threat against the President was repeated in three is­
sues of a magazine published by the Black Panther Party.

® He also contended that the court should conduct an inquiry, 
pursuant to Alderman v. United States. 391 U.S. 165, to deter­
mine whether the subpoena was the product of illegal electronic 
surveillance (2 R. 31-32). The district court held that respondent 
had no standing to object, and the court of appeals did not reach 
the question.



The district court denied the motion to qucash and 
directed respondent to appear, subject to the follow­
ing provisos, 311 P. Supp. at 362:

(1) That * * * Earl Caldwell * * * shall not be 
required to reveal confidential associations, 
sources or information received, developed or 
maintained by him as a professional Jotmialist 
in the course of his efforts to gather news for dis­
semination to the public through the press or 
other news media.

(2) That specifically, without limiting para- 
grapli (1), Mr. Caldwell shall not be required to 
answer questions concerning statements made to 
him or information given to him by members of 
the Black Panther Party unless such statements 
or information were given to him for publica­
tion or public disclosure;

(3) That, to assure the effectuation of this 
order, Mr. Caldwell shall be permitted to consult 
with his counsel at any time he wishes during 
the course of his appearance before the grand 
jury * * *.

The court further stated that it would entertain a 
motion for modification of its order ‘‘at any time upon 
a showing by the Grovernment of a compelling and 
overriding national interest in requiring Mr. Cald­
well’s testimony which cannot be served by any alter­
native means ***.” “

 ̂The court order was originally entered on April 8, 1970, 
during the term of a previous grand jury. (2 II. 232-236). After 
that term expired and a new grand jury was empaneled on 
May 7,1970, respondent was served with a new subpoena ad testi- 
fmndum. to appear before the newly empaneled grand jury 
and the court again denied a motion to quash, reissuing on June 4, 
1970, its previous order limiting the scope of the grand jury's 
inqidry (1 K. 36-41). It is this latter order that the court of 
appeals rerdewed.



In reversing, the court of appeals agreed with the 
district court that the First Amendment accords news­
paper reporters a qualified privilege to refuse to an­
swer questions in response to a grand jury subpoena. 
I t  went further, however, to conclude that because 
grand jury joroceedings are by nature secret, an order 
limiting the scope of inquiry did not, “by itself, ade­
quately protect the First Amendment freedoms at 
stake in this area” (App. A., p. 25, infra). Finding 
that respondent had established a relationship of trust 
and confidence with the Black Panthers which rested 
“on continuing reassurance” that his handling of news 
and information has l^een discrete, the court, below 
reasoned as follows (App. A., p. 24, infra).

This reassurance disappears when the re­
porter is called to testify behind closed doors. 
The secrecy that surrounds Grand Jury testi­
mony necessarily introduces uncertainty in the 
minds of those who fear a betrayal of their con­
fidences. These uncertainties are compounded 
by the subtle nature of the journalist-informer 
relation. The demarcation between what is con­
fidential and what is for publication is not 
sharply dra’wn, and often depends upon the 
particular context or timing of the use of the 
information. Militant groups might very under­
standably fear that, under the pressure of exam­
ination before a Grand Jury, the witness may fail 
to protect their confidences with quite the same 
sure judgment he invokes in the normal course 
of his professional work.



Accordingly, it held that before respondent could be 
ordered to appear “the Government must resx>ond by 
demonstrating a compelling need for the witness’ pres­
ence” (App. A., p. 27).

REASONS FOR GRANTING THE W RIT

This case does not raise the question whether a 
newspaperman—like an attorney or a doctor or a 
clergyman—can refuse to disclose information that 
he has received as a matter of professional confidence. 
That question, in the absence of statute, is not without 
difficulty, see Garland v. Torre, 259 F. 2d 545, 550 
(C.A. 2), certiorari denied, 358 U.S. 910, but it is un­
likely to arise in a federal context since the Depart­
ment of Justice, as a matter of policy, does not seek 
confidential information in the absence of an over­
riding need.** I t does not arise in this case, since the 
government did not appeal from, and does not here 
contest, the order of the district court specifically pro­
tecting respondent from disclosure of any professional 
confidences unless the government first convinces the 
court of its specific need. Rather, the question that the 
decision of the court of appeals raises is the narrower 
question whether the First Amendment gives a re­
porter an absolute right to refuse to appear before a 
grand jury to answer any questions, even questions 
about non-confidential matters, unless the government 
first shows a specific compelling need. That is a vital 
question of first impression, and it plainly calls for 
this Court’s review.

® See the Attorney General's recent guidelines for subpoenas to 
news media, set forth in Appendix C Iiereto, pp. 3A-36, infra.



7

In Katz V. United States, 389 U.S. 347, 351, this 
Court recognized that “ [W]hat a person knowingly 
exposes to the public, even in his own home or office, is 
not a subject of Fourth Amendment protection”. The 
same principle applies equally to any privilege with re­
spect to confidential information, whether or not it 
arises under the First Amendment. Assuming that 
respondent has a right to refuse to disclose informa­
tion he receives in confidence, there is no reason why 
that privilege should extend to non-confideutial infor­
mation communicated to him for the purpose of pub­
lication. This is especially true where the non-confiden- 
tial information to which the inquiry is directed has in­
deed been published in a widely circulated newspaper. 
Compare, e.g., Roviaro v. United States, 3'53 U.S. 53, 
60-61. The effect of the decision below is, however, to 
give a reporter a wholly unique privilege (albeit quali­
fied) to refuse to testify in response to a grand jury sub­
poena about matters concededly non-confidential in 
nature.

I t has long been settled that the giving of testi­
mony and the attendance upon court or grand jury in 
order to testify are public duties which every person 
within the jurisdiction of the government is bound to 
perform upon being properly summoned. Blair v. 
United States, 250 U.S. 273, 281; United States v. 
Bryan, 339 U.S. 323; Brotvn v. Walker, 161 U.S. 591, 
600. As this Court observed in Blair (250 U.S. at 282) :

He [the witness] is not entitled to set limits 
to the investigation that the grand jury may 
conduct * * * I t  is a grand inquest, a body

411- 861— 70— 2



with powers of investigation and inquisition, 
the scope of whose inquiries is not to be limited 
narrowly by questions of jjropriety or forecasts 
of the probable result of the investigation, or by 
doubts whether any particular individual will be 
found properly subject to an accusation of 
crime. As has been said before, the identity of 
the offender, and the precise nature of the of­
fense, if there be one, normally are developed at 
the conclusion of the grand jury’s labor, not at 
the beginning. Hendricks v. United States, 223 
U.S. 178, 184.

And much earlier in Hale v. Henkel, 201 U.S. 43, 
65, the Court said: “I t is impossible to conceive 
that * * * the examination of witnesses must be 
stopped until a basis is laid by an indictment formally 
preferred, when the very object of the examination is 
to ascertain who shall be indicted.”

This broad power enables the grand jury to pursue 
all leads, and gives it the right to investigate on its 
own initiative. I t  need establish no factual Ijasis for 
commencing an investigation, and can pursue rumors 
which further investigation may prove groundless. In 
short, the grand jury need not have probable cause 
to investigate; rather its function is to determine if 
probable cause exists. Similarly, a grand jury has 
never been required to make any preliminary show­
ing as a foundation for calling a particular person— 
whatever his statiis or whatever privilege he might 
assert—as a witness. The imposition of such precon­
ditions upon grand juries would severely impede their 
performance of their traditional functions.



9

Moreover, we do not believe that respondent has 
asserted substantial grounds in favor of the extraor­
dinary limitations that he would impose upon grand 
jury proceedings. He asserts that his tenuous rela­
tionship with the Black Panthers— t̂he source of the 
non-confidential information that he reports—would 
be destroyed by their fear that “under the pressure 
of examination before a Grand Jury, the witness may 
fail to protect their confidences with quite the same 
sure judgment he involves in the normal course of his 
professional work.” However, the Black Panthers 
cannot be sure that respondent has not already spoken 
about them, or will not in the future speak about 
them, to other governmental agencies, or law enforce­
ment officials. Their faith in him must therefore be 
under constant re-examination without regard to his 
grand jury appearance. Where, as here, he has ex­
plicit protection against disclosure of confidential in­
formation by virtue of a court order, there is no 
reasonable basis for fear that confidences will be 
betrayed.

We submit that the First Amendment does not 
grant respondent immunity from appearing before 
the grand jury to testify, at the very least, that he 
did indeed hear the words quoted in Ids articles; that 
they were made seriously and not in jest. Moreover, 
from the published articles it appears that he may 
have other information of a non-confidential nature 
which would be of interest to the grand jury. Since 
respondent may under the present court order claim 
a privilege as to particular questions at the time they



10

are asked, the grand jury should not in this ease, 
any more than it is in other cases, be required to pre­
determine and disclose the scope of its investigation 
as a condition to calling before it a reporter who has 
uiidertaken to make public many statements, includ­
ing allegedly direct quotations from a number of 
people.

CONCLUSION

For the reasons stated, it is therefore respectfully 
submitted that the petition for a writ of certiorari 
should be granted.

E rw in  IST. G-riswold,
Solicitor General.

W ill W ilson,
Assistant Attorney General.

B eatrice R osenberg,
S idney M. B lazer,

Attorneys.
D ecember 1970.



APPENDIX A

In the United States Court of Appeals for the 
Ninth Circuit

No. 26025

In the Matter of the Application of E arl Caldwell 
and N ew  Y ork T im es Company for an Order 
Quashing Grand Jury Subpoenas,

E arl Caldwell, appellant

V.

U nited S tates op A merica, appellee

On Appeal from the United States District Court for 
the Northern District of California

Before: Merrill and  E ly, Circuit Judges, and 
JA M ESO N , District Judge ^

Merrill, C ircu it J u d g e :
Earl Caldwell appeals from an order holding him 

in contempt of court for disregard of an order direct­
ing him to appear before the Grand Jury of the 
United States District Court for the Northern Dis­
trict of California pursuant to a subpoena issued by 
the Grand Jury.

Appellant is a black news reporter for the New 
York Times. He has become a specialist in the re­
porting of news concerning the Black Panther Party.

^Honorable William J. Jameson, United States District 
Judge for the District of Montana, sitting by designation.

( 11)



12

The Grand Jm y is engaged in a general investigation 
of the Black Panthers and the possibility that they 
are engaged in criminal activities contrary to federal 
law.

In order to protect First Amendment interests as­
serted by appellant, the District Court order of at­
tendance, which appellant disregarded, expressly 
granted appellant the privilege of silence as to certain 
matters until such time as the Government should 
demonstrate “ a compelling and over-riding national 
interest in requiring Mr. Caldwell’s testimony which 
cannot be served by any alternative means.” This pro­
tective order provided:

(1) That * * * he shall not be required to 
reveal confidential associations, sources or in­
formation received, developed or maintained 
by him as a professional journalist in the course 
of his efforts to gather news for dissemina­
tion to the public through the press or other 
news media.

(2) That specifically, without limiting para­
graph (1), Mr. Caldwell shall not be required 
to answer questions concerning statements 
made to him or information given to him by 
members of the Black Panther Party unless 
such statements or information were given to 
him for publication or public disclosure.

(3) That, to assure the effectuation of this 
order, Mr. Caldwell shall be permitted to con­
sult with his counsel at any time he wishes dur­
ing the course of his appearance before the 
grand jury * * *.

Appellant contends that the privilege granted by 
the District Court will not suffice to protect the First 
Amendment interests at stake; that unless a specific 
need for his testimony can be shown by the United



13

States lie should be excused from attendance before 
the Grrand Jury altogether. Thus it is not the scope 
of the interrogation to which he must submit that is 
here at issue; it is whether he need attend at all.

The ease is one of first impression and one in which 
nevfs media have shown great interest and have ac­
cordingly favored us with briefs as ‘amici curiae. As 
is true with many problems recently confronted by 
the courts, the case presents vital questions of public 
policy; questions as to how competing public interests 
shall be balanced. The issues require us to turn our 
attention to the underlying conflict between public 
interests and the nature of such competing interests.'’

While the United States has not appealed from 
the grant of privilege by the District Court (which it 
opposed below) and the propriety of that grant is 
thus not directly involved here, appellant’s conten­
tions here rest upon the same First Amendment foun­
dation as did the protective order granted below. 
Thus, before we can decide whether the First Amend­
ment requires more than a protective order delimit­
ing the scope of interrogation, we must first decide 
whether it requires any privilege at all..

 ̂Where, as here, the alleged abridgement of First .Amend­
ment interests occurs as a by-product of otherwise permissible 
governmental action not directed at the regulation of speech 
or press, “resolution of the issue always involves a balancing 
by the courts of the competing private and public interests 
at stake in the particular circumstances shown.” Barenblatt v. 
Unitexl States. 360 IJ.S. 109, 126 (1959) ; see, e.g., Kmiisberg 
V. State Bar, 366 U.S. 36, 50-51 (1961); Bates v. LittZe Roch, 
361 IJ.S. 516 (1960) ; N A A C P  v. Alatbama, 357 ILS. 449, 460- 
67 (1958) ; Kalven, “The Xew York Times Case: A Xote on 
‘The Central Meaning of the First Amendment,’ ” 1964, Sup. 
Ct. Eev. 191, 214-16 (1964).



14

The Protective Order

The proceedings below were initiated by a motion 
by appellant to quash subpoenas issued by the G-rand 
JLiry.̂ ’ In his moving papers appellant’s position was 
that the “inevitable effect of the subpoenas will be to 
suppress vital First Amendment freedoms of Mr. 
Caldwell, of the New York Times, of the news media, 
and of militant political groups by driving a wedge 
of distrust and silence between the news media and 
the militants, and that this Court should not coimte- 
nance a use of its process entailing so drastic an 
incursion upon First Amendment freedoms in the ab­
sence of compelling governmental interest—not shown 
here—in requiring Mr. Caldwell’s appearance before 
the Grand Jury.”

® The first subpoena was served February 2, 1970. It directed 
appellant to appear and testify and to bring with him notes 
and tape recordings of interviews reflecting statements made for 
publication by officers and spokesmen for the Black Panther 
Party concerning the aims, purposes and activities of the orga­
nization. On March 16, after appellant had protested the scope 
of the subpoena, a second subpoena was served. It simply re­
quired appellant’s attendance. Appellant’s motion to quash was 
directed to both subpoenas. The court denied the motion and 
directed compliance with the March 16 subpoena subject to the 
protective order. Appellant appealed that decision; but the 
appeal was dismissed, apparently on the ground that the Dis­
trict Court order was not appealable. By then the term of the 
Grand Jury had expired, and a new Grand Jury was sworn. 
A new subpoena ad testificandum was served on May 22, 1970. 
All proceedings had in connection with the earlier subpoenas 
were made a part of the record of the proceedings concerning 
this last subpoena. A new order directing attendance was is­
sued; this order also contained the protective provisions or 
privilege. It is appellant’s disregard of that order which re­
sulted in the judgment of contempt now before us.



15

Amici curiae solidly supported appellant in this 
position. The fact that the subpoenas would have a 
“chilling effect” on First Amendment freedoms was 
impressively asserted in affidavits of newsmen of rec­
ognized statute, to a considerable extent based upon 
recited experience. Appellant’s own history is related 
in his moving papers:

Earl Caldwell has been covering the Pan­
thers almost since the Party’s beginnings. 
Initially received hesitatingly and with caution, 
he has gradually won the confidence and trust 
of Party leaders and rank-and-file members. As 
a result, Panthers will now discuss Party vieivs 
and activities freely with Mr. Caldwell. * * 
Their confidences have enabled him t'o write in­
formed and balanced stories concerning the 
Black Panther Party which are imavailalDle to 
most other newsmen.

*  -X- *  ^

I f  Mr. Caldwell were to disclose Black Panther 
confidences to governmental officials, the grand 
jury, or any other person, he would thereby 
destroy the relationship of trust which he pre­
sently enjoys with the Panthers and othei> mili­
tant groups. They would refuse to speak to him; 
they would become even more reluctant than 
they are noŵ  to speak to any newsmen; and the 
news media wmiild thereby be vitalljT' hampered 
in their ability to cover the views and activi­
ties of the militants.

The response of the United States di.sputed the con­
tention that First Amendment freedoms were endan­
gered.

Newsmen filing affidavits herein allege that 
they fear, in effect, that the Black Panthers 
will refrain from furnishing them with news.

411- 861— 70-



16

This contention, is specious. Despite some as­
sertions by Black Panther leaders to the con­
trary, the Black Panthers in fact depend on 
the mass media for their constant endeavor to 
maintain themselves in the public eye and thus 
gain adherents and continued support. The}' 
have continued un(;easing-ly to exploit the facili­
ties of the mass media for their own X)urposes.

Assuming, arguendo, that this statement is eorrect, 
it is not fully responsive to the claim that First 
Amendment fi.'eedonis arc; endangered. The premise 
underlying the (xOvernnu;nt’s statement is that First 
Amendment interests in this area are adecpiately 
safeguarded as long as potential news makers do not 
cease using the media as vehicles for their communi- 
cation with the public. But the First Amendment 
means more than that. I t exists to preserve an “un- 
traniineled press as a vital soiirce of public informa­
tion,” Grosjean v. American Press Co., 297 U.S. 233, 
250 (1936). Its objective is the maximization of the 
“spectrum of available knowledge,” Gristvold v. Con­
necticut, 381 U.S. 479, 482 (1965). Thus, it is not 
enough that Black Panther press releases and public 
addresses by Panther leaders may continue unabated 
in the wake of subpoenas such as thĉ  one here in 
question. I t is not enoiigh that the public’s knowh'dge 
of groups such as the Black Panthers sliould l,)e con- 
tinc’d to their delilcerate public pronouncements or 
distant new's accounts of their occasional dramatic 
forays into the public view.

The need for an untrammeled press takes on spe­
cial urgency in times of widespread protest and dis­
sent. In such times the First Amendment protections 
exist to maintain communication with dissenting 
groups and to provide the public with a wide range of 
information about the nature of protest and hetero-



17

doxy. See, e.g., Associated Press v. United States, 
326 U.S. 1, 20 (1945); Thornhill v. AlaMma, 310 U.S. 
88,102 (1940).

The affidavits contained in this record required the 
eonelusion of the District Court that “ eoinpelled dis­
closure of information received by a journalist within 
the scope of such confidential relationships jeopar­
dizes those relationships and thereby impairs the jour­
nalist’s ability to gather, analyze, and publish the 
news. ’ ’

Accordingly we agree with the District Court that 
First Amendment freedoms are here in jeopardy.

On the other side of the balance is the scope of the 
(Irand Jury’s investigative power.

In his moving papei-s appellant complained that the 
Grovernment had not disclosed the subject, direction 
or scope of the Grand Jury inquiry and that efforts 
of counsel to obtain some specification had been un­
availing.

Government counsel has said only that the 
grand jury has “broad investigative powers,” 
that he cannot “limit the inquiry of the grand 
jury in advance,” and that the subject and 
scope of the grand jury’s investigation is “no 
concern of a subpoenaed witness.”

The Government in opposing appellant’s motion to 
quash, stated its position in these terms:

On the basis of what he has written, directly 
quoting statements made to him for publication 
by spokesmen for the Black Panther Party, Earl 
Caldwell obviously can give and should come 
forward with evidence which will be helpful to 
the Grand Jury in its inquiry.

Thus, as is true in innumerable instances, the Grand 
Jury does not know what it wants from this witness. 
I t wants to find out what he knows that might shed



18

light on the general problem it is investigating. This 
type of wide-ranging, open-ended inquiry is, of course, 
typical of many Grand Jury proceedings. See Hale v. 
Henkel, 201 U.S. 43 (1906); Note, “The Grand Jury 
as an Investigatory Body,” 74 Harv. L. Rev. 590, 591- 
92 (1961). I f  the privilege of silence as defined by the 
District Court is made available to news gatherers, the 
Grand Jury will be deprived of their assistance as 
witnesses in such general investigations.

The question posed below was whether, as a matter 
of law, this loss to the Grand Jury, this impediment 
to its traditionally broad scope of inquiry, outweighs 
the injury to First Amendment freedoms.

The Government stresses the historic traditions of 
the Grand Jury with its extensive powers of investi­
gation, see, e.g.. Hale v. Henkel, stip-ra, and the cor­
responding duty of the citizenry to come before the 
Grand Jury to give testimony. United States v. Bryan, 
339 U.S. 323 (1950); Blair v. United States, 250 U.S. 
273 (1919). But these general propositions of Govern­
ment authority necessarily are tempered by constitu­
tional prohibitions and other exceptional circum­
stances. See United States v. Bryan, supra, at 331; 
Blair V. United States, supra, at 281-82. In this re­
spect we find guidance in the Supreme Court deci­
sions regarding conflicts between First Amendment in­
terests and legislative investigatory n e e d s t h e  
Court has required the sacrifice of First Amend-

'‘Like the Grand Jury, legislative committees have long 
been viewed as invaluable instruments of governance. See, e.g., 
BarenUatt v. United States, 360 U.S. 109, 111 (1959); United 
States V. Rumely, 345 U.S. 41, 43 (1953).



19

ment freedoms only where a compelling need for the 
IJartieular testimony in question is demonstrated."

If  the Grand Jury may require appellant to make 
available to it information obtained by him in his 
capacity as news gatherer, then the Grand Jury and 
the Department of Justice have the power to appro­
priate appellant’s investigative efforts to their own 
behalf—^̂to convert him after the fact into an inves­
tigative agent of the Government. The very concept 
of a free press requires that the news media be ac­
corded a measure of autonomy; that they should be 
free to pursue their own investigations to their own. 
ends without fear of governmental interference, and 
that they should be able to protect their investigative 
processes. To convert news gatherers into Department 
of Justice investigators is to i.nvade the autonomy 
of the press by imposing a governmental function 
upon them. To do so where the result is to diminish 
their future capacity as news gatherers is destructive 
of their public function." To accomplish this where it 
has not been shown to be essential to the Grand Jury

' DeGregory v. Attorney General o f Neio Hampshire, 383 
U.S. 825 (1966) ; Gihson v. Florida Legislative Investigation 
OommAttee, 372 IT.S. 539 (1963); N A AG P  v. Alabama, 357 
U.S. 449, 460-67 (1958); Sioeesy v. Neio Ilam/pslvire, 354 U.S. 
235 (1957) ; Y/atkins v. United States, 354 U.S. 178 (1957) ; 
United States v. Rumely, 345 U.S. 41 (1953). It is .necessary 
that, as the investigation proceeds, step-by-step, “an adequate 
foundation for inquiry must be laid.” Gihson v. Florida Legis­
lative Investigation Committee, snyra, at 557.

® It is a paradox of the Government’s position that, if  groups 
like the Black Panthers cease taking reporters like appellant 
into their confidence, these journalists will, in the future, be 
unable to serve a public function either as news gatherers or as 
prosecution witnesses.



20

inquiry simply cannot be justified in the public in­
terest.

l^hirther it is not unreasonable to expect journalists 
everywh(‘re to temper their reporting so as to reduce 
the probability that they will be required to submit 
to interrogation. The First Amendment guards 
against governmental action that induces such self- 
censorship. See New York Tim.es v. Sullivan, 376 
U.S. 254, 279 (1964); Smith v. California, 361 U.S. 
147 (1959).

I t was on such, considerations as these that the 
balance was struck by the District Court. I t ruled:

When the exercise of the grand jury power of 
testimonial compulsion so necessary to the ef­
fective functioning of the court may impinge 
upon or repress First Amendment rights or 
freedom of speech, press and association, which 
centuries of experience have found to be indis­
pensable to the survival of a free society, such 
power shall not be exercised in a manner likely 
to do so until there has been a clear showing 
of a compelling and overriding national in- 
t(0‘ost that cannot be served by any alternative 
means.

Finding that tlie Government had shown no com­
pel ing or over-riding national interest for testimony 
of the sort specified, the District Court imposed the 
limits we have set forth earlier in this opinion. It 
reserved jurisdiction to modify its order on a showing 
of such governmental interest which cannot be served 
by means other than by appellant’s testimony.

We agree with the District Court that the First 
Amendment requires this qualified privilege, and we



21

find notliiiig unreasonable in the terms in which it 
was there defined/

Attendance
We have noted, the issue upon this appeal goes 

beyond the (|uestion of a privileg'e to decline to re- 
.spond to interrogation in certain ai-('as. The District 
Court ruled tliat, although protec.ted 1>y its limited 
privilege, Caldwell was reqiiirc'd to rc'spond to the 
subjioena by a])pearing ])efor(' tlui (fraud Jury to an­
swer (questions not privileged. Appellant contends that 
his mere appearance before tlie (fi'and Jury will result 
in loss of his news sources. The Cfovernment ques­
tions this result.

Garlnnd v. Torre. 259 F. 2d 54-5 (2d Cir.) cert, denied. 
358 U.S. 910 (1958), is not to the contrary. That case in­
volved a libel suit in which an author attributed alleged de­
famatory remarks reported by her to a “network executi\'e." 
The author, when called as a witness in the libel action against 
the network, claimed a First Amendment privilege not to dis­
close the informant’s identity and was held in contempt for 
her refusal to divulge the source.

The Second Circuit (per Judge, now ilr . Justice Stewart) 
affirmed the judgment of contempt. But, in doing so, it ac­
cepted the proposition “that comjnilsory disclosure of tamfl- 
dential sources of inforniatioii may entail an abridgement of 
press freedom * * *” Id., at 5-18. The test was “wiietlier the 
interest to be served by com})e]!ing the testimony of the wit­
ness in the present case justifies some im[)airmeut of this First 
Amendment freedom,” Id. In that case the court, noted that it 
wiis “not dealing here with the use of tlie judicial process to 
force a wholesale disclosure of a newspaper’s confidciitial sources 
of news nor with a case where the identity of the news source 
is of doubtful relevaiice or materiality.” Id., at 549-50. There 
the information 'was essential for the trial of plaintiff’s 
case; “The question asked of a]5pcllant went to the heart of 
plaintiff’s claim.” Id. Thus an over-riding need for tlie specific 
testimony was shown.



22

The affidavits on file cast considerable light on the 
process of gathering news about militant organiza­
tions.  ̂ I t  is apparent that the relationship which an 
effective privilege in this area must protect is a very 
tenuous and unstable one. Unlike the relation between 
an attorney and his client or a physician and his pa­
tient, the relationships between journalists and news 
sources like the Black Panthers are not rooted in any 
service the journalist can provide his informant apart

® One reporter for the New York Times states: “[0 ]u  every 
story there is a much subtler and much more important form 
of commnnication at work between a reporter and his sources. 
It js built up over a period of time working with and writing 
about an organization, a person, or a group of persons. The 
reporter and the source each develops a feeling for what the 
other will do. The reporter senses how far he can go in writing 
before the source will stop communicating with him. The 
source, on the other hand, senses how much he can talk and 
act freely before he has to close off his presence and his in­
formation from the reporter. It is often through such subtle 
communication that the best and truest stories are written and 
printed in The Times, or any other newspaper.”

Appellant relates his own experience as follows: “I began 
covering and writing articles about the Black Panthers al­
most from the time of their inception, and I myself found 
that in those first months that they were very brief and reluc­
tant to discuss any substantive matter with me. However, as 
tliey realized I could be trusted and that my sole purpose was 
to collect my information and present it objectively in the 
newspaper and that I liad no other motive, I  found that not 
only were the party leaders available for in-depfii interviews 
but also the rank and file members were cooperative in aiding 
mo in the newspaper stories that I wanted to do. During the 
time that I have been covering the party, I have noticed other 
newspapermen representing legitimate organizations in the news 
media being turned away because they were not known and 
trusted by the party leadership.

“As a result of the relationship that I have developed, I 
have been able to write lengthy stories about the Panthers



23

from the publication of the information so obtained. 
G-oldstein, “Newsmen and their Confidential Sources,” 
The New Republic 13 (March 21, 1970). The relation­
ship depends upon a trust and confidence that is con­
stantly subject to reexamination and that depends in 
turn on actual knowledge of how news and informa-
that have appeared in The New York Times and have been of 
such a nature that other reporters who have not Imown the 
Panthers have not been able to write. Many of these stories 
have appeared in up to 50 or 60 other newspapers around the 
country.

“Tire Black Panther Party’s method of operation with, regard 
to members of the press is significantly different from that of 
other organizations. For instance, press credentials are not rec­
ognized as being of any significance. In addition, interviews 
are not normally designated as being ‘backgrounders’ or ‘off 
the record’ or ‘for publication’ or ‘on the record.’ Because no 
substantive interviews are given until a relationship of trust 
and confidence is developed between the Black Panther Party 
members and reporters, statements are rarely made to such 
reporters on an expressed ‘on’ or ‘off’ the record basis. Instead, 
an understanding is developed over a period of time between 
the Black Panther Party members and the reporter as to 
matters which the Black Panther Party wishes to disclose for 
publication and those matters which are given in confidence.”

He concludes: “* * * if I  am forced to appear in secret 
grand jury proceedings, my appearance alone would be inter­
preted by the Black Panthers and other dissident groups as a 
possible disclosure of confidences and trusts and would similarly 
destroy my effectiveness as a newspaperman.”

A fellow black reporter, on leave of absence from The New 
York Times, states: “From my experience, I  am certain that a 
black reporter called upon to testify about black activist 
groups will lose his credibility in the black community gen­
erally. His testifying will also make it more difficult for other 
reporters to cover that community. The net result, therefore, 
will be to diminish seriously the meaningful news available 
about an important segment of our population.”



24

tion imparted have been handled and on continuing 
reassurance that the handling has been discreet.®

This reassurance disappears when the reporter is 
called to testify behind closed doors. The secrecy that 
surrounds Grand Jury testimony necessarily intro­
duces uncertainty in the minds of those who fear a 
betrayal of their. confidences. These uncertainties are 
compounded by the subtle nature of the journalist- 
informer relation. The demarcation between what is 
confidential and what is for publication is not sharply 
drawn and often depends upon the particular context 
or timing of the use of the information. Militant 
groups might very understandably fear that, under 
the pressure of examination before a Grand Jury, 
the witness may fail to protect their confidences with 
quite the same sure judgment he invokes in the nor­
mal course of his professional work.

The Government characterizes this anticipated loss 
of communication as Black Panther reprisal; as mani­
festing a Black Panther demand that, “if you sub­
poena Caldwell, we will never speak to you again.” 
It argues that it is unthinkable that the American 
people would capitulate to such extortion.

But it is not an extortionate threat we face. I t is 
human reaction as reasonable to expect as that a client 
will leave his lawyer when his confidence is shaken. 
The news source has placed no price tag or exaction 
on enjoyment of First Amendment freedoms save its

® This is not necessarily true of every news source. In po­
litical and diplomatic areas where the source is an under­
cover tipster the relationship may well be sufficiently protected 
by a privilege not to disclose the source.



25

contirming confidence in the discretion of tlie re- 
porterd“

As the Grovernment points out, loss of such a sensi­
tive news source can also result from its reaction to 
indiscreet or unfavorable reporting or from a report­
er’s association with Government agents or persons 
disapproved of by the news source. Loss in such a case, 
however, results from an exercise of the choice and 
prerogative of a free press. I t  is not the result of 
Government compulsion.

We conclude that the privilege not to answer cer­
tain questions does not, by itself, adequately protect 
the First Amendment freedoms at stake in this area; 
that without implementation in the manner sought 
to appellant the privilege would fail in its very pur­
pose.

On the other side of the balance is the Grand 
Jury’s right to summon this witness before it and in 
secrecy compel him to ansAver questions or to resort 
to his privilege. I t is not the right to secure appear­
ance and testimony that is itself in issue; the Dis­
trict Court’s protective order alone would suffice were 
that all. I t is the right to compel presence at a secret 
interrogation with which we are concerned.

Throughout history secret interrogation has posed 
problems and caused unease. See, e.g., Kote, ‘"An His­
torical Argument for the Right to Counsel During 
Police Interrogation,” 73 Tale L.J. 1000, 1034-15 
(1964). We do not doubt that secret interrogation is 
in general essential to the integrity and effectiveness 
of the Grand Jury process. HoAÂeÂer, implicit in the

Quite a different situation would be presented Avere tlie 
demand unrelated to the priAuleged relationship: E.g. “Tlie 
police must free our leader.”



36

extraordinary nature of secret interrogations, is the 
possibility of conflict with basic rights. When this is 
shown to occur it is appropriate to inquire into the 
need in the particular case for the specific incursion. 
Since compulsion to attend and testify entails the 
exercise of judicial iDrocess, it is appropriate that the 
inquiry be judicially entertained.

The question, then, is whether the injury to First 
Amendment liberties which mere attendance threatens 
can be justified by the demonstrated need of the Gov­
ernment for appellant’s testimony as to those subjects 
not already j)rotected by the privilege.

Appellant asserted in affidavit that there is nothing 
to which he could testify (beyond that which he has 
already made public and for which, therefore, his 
appearance is unnecessary) that is not protected by 
the District Court’s order. If  this is true—and the 
Government apparently has not believed it necessary 
to dispute it—appellant’s response to the subpoena 
would be a barren performance—one of no benefit to 
the Grand Jury. To destroy appellant’s capacity as 
news gatherer for such a return hardly makes sense. 
Since the cost to the public of excusing his attendance 
is so slight, it may be said that there is here no public 
interest of real substance in competition with the 
First Amendment freedoms that are jeopardized.

If  any competing public interest is ever to arise in 
a case such as this (where First Amendment liberties 
are threatened by mere appearance at a Grand Jury 
investigation) it will be on an occasion in which the 
witness, armed with his privilege, can still serve a 
useful purpose before the Grand Jury. Considering 
the scope of the privilege embodied in the protective 
order, these occasions would seem to be unusual. I t is 
not asking too much of the Government to show that 
such an occasion is presented here.



27

In light of these coiisiclerations we hold that where 
it has been shown that the public’s First Amendment 
right to be informed would be jeopardized by requir­
ing a journalist to submit to secret Grand Jury 
interrogation, the Government must respond by dem­
onstrating a compelling need for the witness’ presence 
before judicial process properly can issue to require 
attendance.

We go no further than to announce this general 
rule. As ŵe noted at the outset, tMs is a case of first 
impression. The courts can learn much about the prob­
lems in this area as they gain more experience in 
dealing with them. For the present we lack the 
omniscience to spell out the details of the Govern­
ment’s burden “ or the type of proceeding that would

Appellant, in his brief to this court, has carefully spelled 
out what he feels would be required; “Specifically, we con­
tend that, before it may compel a newsman to appear in grand 
jury proceedings under circumstances that would seriously 
damage the newsgathering and reporting abilities of the press, 
the Government must show at least: (1) that there are rea­
sonable grounds to believe the journalist has information, (2) 
specifically relevant to an identified episode that the grand 
jury has some factual basis for investigating as a possible 
violation of designated criminal statutes within its jurisdiction, 
and (3) that the Government has no alternative sources of the 
same or equivalent information whose use would not entail an 
equal degree of incursion upon First Amendment freedoms. 
Once this minimal showing has been made, it remains for the 
courts to weigh the precise degree of investigative need that 
thus appears against the demonstrated degree of harm to First 
Amendment interests involved in compelling the journalist’s 
testimony.” While there is much to commend this suggestion, 
we are not certain that it represents the best or most satis­
factory formulation of the requirement. See, for example. 
People V. Dohm, et al., Circuit Court of Cook County, Crimi­
nal Division, Ao. 69-3808, May 20,1970.



28

accommodate efforts to meet that burden/^ The fash­
ioning of specific rules and procedures appropriate 
to the particular case can better be left to the District 
Court under its retained jurisdiction. Cf., White 
Motor Co. V. United States, 372 U.S. 253 (1963).

Finally we wish to emphasize what must already be 
clear: the rule of this case is a narrow one. I t  is not 
every news source that is as sensitive as the Black 
Panther Party has been shomi to be respecting the 
performance of the “ establishment” press or the ex­
tent to which that performance is open to view. It is 
not every reporter who so uniquely enjoys the trust 
and confidence of his sensitive news source.

The Fourth Amendment Issue

Appellant also moved to quash the Grand Jury 
subpoenas on the ground that they were based upon 
information obtained by unconstitutional surveillance 
of his interviews with Black Panther members. He 
sought a hearing to determine whether the subpoenas 
were so obtained. Alderman v. United States, 394 U.S. 
165 (1969). The District Court denied the motion 
solely on the ground that appellant lacked standing 
to raise the Fourth Amendment contention. This is 
assigned as error.

In light of our disposition of the First Amendment 
question in this case, we need not reach this issue. The 
United States might never meet the First Amendment 
burden imposed upon it by the District Court order 
as here implemented. Even if the Govermnent does 
meet that burden, the court may not have to reach 
this Fourth Amendment claim; the Government’s

Appellant suggests that the Government's specification 
of need could be presented in camera to the District Court 
with appellant or his counsel present.



sh'o-wing of need for appellant’s testimony may dis­
close a basis for the (xovernment’s information which 
would present no Fourth Amendment problem. If  
such a problem is presented it coidd then be discussed 
in light of the specific facts.

Accordingly, we regard decision upon this question 
as unnecessary to the present disposition of the case. 
We reserve the issue and decline to reach it here.

Reversed and remanded with instructions that the 
judgment of contempt and the order directing attend­
ance before the Grand Jury be vacated. The District 
Court under its retained jurisdiction may enteifain 
such further proceedings as may be initiated by the 
United States.
J amesox, District Judge (Concurring):

This ease presents narrow issues in the “ delicate 
and difficult” task of reconciling the First Amendment 
guarantee of freedom of the press with the fair ad­
ministration of justice, including the broad investiga­
tory power of a grand jury and the obligation of a 
witness to testify. While perhaps unnecessary for a 
determination of this appeal, it is helpful, in my 
opinion, to note the guidelines for resolving conflicts 
in this sensitive area, as summarized by Judge, now 
Mr. Justice, Stewart, in Garland v. Torre, 259 F. 2d 
545, 548-549 (2d Cir.) cert, denied 358 U.S. 910 (1958) :

But freedom of the press, precious and vital 
though it is to a free society, is not an absolute. 
What must be determined is whether the in­
terest to be served by compelling the testimony 
of the witness in the present case justifies some 
impairment of this First ilmendment freedom. 
That kind of determination often presents 
a “ delicate and difficult” task. (Citing 
cases). * * *

* * * Freedom of the press, hard-won over 
the centuries by men of courage, is basic to a



30

free society. But basic too are courts of justice, 
armed with the power to discover truth. The 
concept that it is the duty of a witness to 
testify in a court of law has roots fully as deep 
in our history as does the guarantee of a free 
press.

I t would be a needless exercise in pedantry 
to review here the historic development of that 
duty. Suffice it to state that at the foun­
dation of the Republic the obligation of a wit­
ness to testify and the correlative right of a 
litigant to enlist judicial compulsion of testi­
mony were recognized as incidents of the judi­
cial power of the United States. (Citing 
cases). * * *

Without question, the exaction of this duty 
impinges sometimes, if not always, upon the 
First Amendment freedoms of the witness. 
Material sacrifice and the invasion of pei’sonal 
privacy are implicit in its performance. The 
freedom to choose whether to speak or be silent 
disappears. * * *

If  an additional First Amendment liberty— 
the freedom of the press—is here involved, we 
do not hesitate to conclude that it too must give 
place under the Constitution to a paramount 
public interest in the fair administration of 
justice. * * *

As stated in the court’s opinion (note 6) Garland 
V. Torre was a civil action for libel.̂  ̂ The obligation 
to appear and testify is even stronger and the scope 
of inquiry is broader in grand jury investigations. '̂*

As Judge Merrill’s opinion notes, Garland v. Torre did 
not involve the “txse of the judicial process to force a whole­
sale disclosure of a newspaper’s confidential sources of news 
nor with a case where the identity of the news source is of 
doubtful relevance or materiality.”

In distinguishing between investigations by a grand jury 
and those conducted by commissions created by Congress, Mr. 
Justice Douglas noted that the grand jury is the “only ac-



31

The First Amendment rights of appellant were 
recognized fully by Judge Zirpoli in providing for 
the protective order discussed in the court’s opinion. 
While not conceding the validity or propriety of the 
qualified privilege granted appellant, the Government 
did not seek review of that order on this a p p e a l

The order entered by the district court is adequate 
to protect any unnecessary impingement of First 
Amendment rights after the appearance of the wit­
ness before the grand jury.

Accordingly we are concerned with the narrow 
question of whether the Government’s showing of a 
“ compelling and overriding national interest that can-
cusatory body in the Federal Government that is recognized 
by the Constitution,” and that “[I]t has broad investigational 
powers to look into what may be offensive against federal crim­
inal law.” Dissenting opinion in Hannah v. Larche. 363 IT.S. 
420,499 (1960).

“̂At oral argument counsel for the Government submitted 
a press release from the Attorney General settiiig forth new 
Department of Justice guidelines for subpoenas to the news 
media, in which it is expressly recognized that the “Depart­
ment does not approve of utilizing the press as a spring board 
for investigations”, and which provide, inter alia, that “[TJhere 
should be sufficient reason to believe that the information sought 
is essential to a successful investigation—particularly with ref­
erence to directly establishing gialt or innocence”; that “[T]he 
government should have unsuccessfully attempted to obtain the 
information from alternatn'e non-press sources”; that subpoenas 
“should normally be limited to the verification of published 
information and to such surrounding circumstances as relate 
to the accuracy of the published information” ; and tliat “sub­
poenas should, wherever possible, bo directed at material in­
formation regarding a limited subject matter, should cover a 
reasonably limited period of time, and should avoid requiring 
production of a large volume of unpublished material.” John 
N. Mitchell, “Free Press and Fair Trial: The Subpoena Con­
troversy,” an address before House of Delegates, American 
Bar xCssociation (August 10, 1970).



32

not be served by any alternative means” may be re­
quired in advance of the issuance of a subpoena.

Appellant did not have any express constitutional 
right to decline to appear before the grand jury. 
This is a duty required of all citizens, hlor has Con­
gress enacted legislation to accord any type of priv- 
ilege to a news reporter.^® In my opinion the order 
of̂  the district court could properly be affirmed, and 
this would accord with the customary procedure of 
requiring a witness to seek a protective order after 
appearing before the grand jury. I  have concluded, 
however, that Judge Merrill’s opinion properly holds 
that tne same result may be achieved by requiring 
the G-overnment to demonstrate the compelling need 
for the witness’s presence prior to the issuance of a 
subpoena and in this manner avoid anj  ̂ unnecessary 
impingement of First Amendment rights.

As Judge Merrill has suggested, this is a ease of 
first impression. I t  would seem that the district court 
could develop procedures which would not imduly 
hamper or interfere with the investigatory powers of 
the grand jury. The Government would have the same 
burden, except that it would make its showing at a 
hearing in advance of the issuance of subpoenas 
rather than after the witness appears and seeks a 
protective order.

^"Several states have enacted legislation granting qualified 
privileges to newsmen.



APPENDIX B

In the United States Court of Appeals for the Ninth
Circuit

No. 26025

(D.C. #Misc. 10426)

l x  THE Matter of the Applicatiox of E arl Cald­
well AXD New York Times Compaxy foe ax Order 
Quashixg Gtraxd J ury Subpoexas  ̂ E ari. Caldwell, 
APPLICAXT

V.

E xited States of Aaierica

Appeal from the United States District Court for 
the Northern District of California.

This cause came on to be heard on the Transerijot 
of the Record from the United States District Court 
for the Northern District of California and was duly 
suhmitted.

On consideration whereof, I t is now here ordered 
and adjudged by this Court, that the judgment of the 
said District Court in this Cause be, and hereby is 
reversed and that this cause be and hereby is re­
manded to the said District Court with instructions 
that the judgment of contempt and the order direct­
ing attendance before the grand jury be vacated. The 
District Court under its retained jurisdiction may 
entertain such further proceedings as may be initiated 
by the United States.

Filed and entered November 16,1970.( 3 3 )



APPENDIX C

Department of J ustice,
IFasMngton, D.G., September 2, 1970.

Memo No. 692

To A ll U nited States Attorneys
Subject: Guidelines for Subpoenas to the News Media.

The following guidelines for subpoenas to the news 
media are quoted from the address “ Free Press and 
Pair Trial: The Subpoena Controversy” by the Hon­
orable John N. Mitchell, Attorney General of the 
United States, before the House of Delegates, Ameri­
can Bar Association, at St. Louis, Missouri, on Au­
gust 10, 1970.

W ill W ilson,
Assistant Attorney General,

Crimmal Division.
First: The Department of Justice recognizes that 

compulsory process in some circumstances may have 
a limiting effect on the exercise of First Amendment 
rights. In determining whether to request issuance of 
a subpoena to the press, the approach in every case 
must be to weight that limiting effect against tlie 
public interest to be served in the fair administration 
of justice.

Second: The Department of Justice does not con­
sider the press “ an investigative arm of the govern­
ment.” Therefore, all reasonable attempts shoukl be 
made to obtain information from non-press sources 
before there is any consideration of subpoenaing 
the press. ( 3 4 )



35

Third: I t is the policy of the Department to insist 
that negotiations with the press be attempted in all 
cases in which a subpoena is contemplated. These ne­
gotiations should attempt to accommodate the inter­
ests of the grand jury with the interests of the news 
media.

In these negotiations, where the nature of the in­
vestigation permits, the government should make clear 
what its needs are in a particular case as well as its 
willingness to response to particular problems of the 
news media.

Fourth: I f  negotiations fail, no Justice Department 
official should request, or make any arrangements for, 
a subpoena to the press without the express authori­
zation of the Attorney General.

If  a subpoena is obtained under such circimistaTices 
without this authorization, the Department will—as a 
matter of course—^move to quash the subpoena with­
out prejudice to its rights subsequently to request the 
subpoena upon the proper authorization.

Fifth: In requesting the Attorney General’s au­
thorization for a subpoena, the following principles 
will apply:

A. There should be sufficient reason to believe that 
a crime has occurred, from disclosures by non-press 
sources. The Department does not approve of utilizing 
the press as a spring board for investigations.

B. There should be sufficient reason to believe that 
the information sought is essential to a successful in­
vestigation ^particularly with reference to directly 
establishing guilt or innocence. The subpoena should 
not be used to obtain peripheral, non-essential or 
speculative information.

C. The Government should have unsuccessfully at­
tempted to obtain the information from alternative 
non-press sources.



36

D. Authorization requests for subpoenas should nor­
mally be limited to the verification of published in­
formation and to such surrounding circumstances as 
relate to the accuracy of the published information.

E. Great caution should be observed in requesting 
subpoena authorization by the Attorney General for 
unpublished information, or where an orthodox First 
Amendment defense is raised or where a serious claim 
of confidentiality is alleged.

F. Even subpoena authorization requests for pub­
licly disclosed information should be treated with care 
because, for example, cameramen have recently been 
subjected to harassment on the grounds that their 
photographs will become available to the government.

G. In any event, subpoenas should, wherever pos­
sible, be directed at material information regarding 
a limited subject matter, should cover a reasonably 
limited period of time, and should avoid requiring 
production of a large volume of unpublished material. 
They should give reasonable and timely notice of the 
demand for documents.

These are general rules designed to cover the great 
majority of cases. I t  must always be remembered that 
emergencies and other unusual situations may de­
velop where a subpoena request to the Attorney Gen­
eral may be submitted which does not exactly conform 
to these guidelines.

U.S .  GOVERNMENT PRINTJNG OFFICE;  1970



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