United States v. Caldwell Brief for Respondent

    I n  t h e

Olflurt at % IniteJi
O ctober T erm , 1971 

No. 70-57

U nited  S tates o r  A merica , 

— v̂.—

E arl Caldw ell,

Petitioner,

Respondent.

ON W R IT  OE C ER TIO R A R I TO T H E  

U N IT E D  STA TES CO U RT OE A P P E A L S  EO E T H E  N I N T H  C IR C U IT

BRIEF FOR RESPONDENT

J ack Greenberg  
J ambs M. N abrit III 
C harles S t e p h e n  R alston 

10 Columbus Circle 
New York, New York 10019

W illia m  B e n n e t t  T urner  
12 Geary Street
San Francisco, California 94108

A n th o n y  G. A msterdam

Stanford University Law School 
Stanford, California 94305

Attorneys for Respondent



I N D E X

PAGE

Opinions Below ............................................................... 1

Jurisdiction ....................................................................  2

Constitutional Statutory Provisions and Regulations 
Involved ......................................................................  2

Questions Presented ......................................................  2

Statement of the Case .................................................... 4

A. History of proceedings below ..........................  4

B. Facts relevant to the constitutional issues
presented ...........................................................  15

1. The First Amendment Issue ....................... 15

2. The Fourth Amendment Issue.....................  41

Summary of Argument .................................................. 43

Argument ..................................................................    45

I. Introduction: The Government’s Brief ......  45

II. Upon the Issues and Facts Presented, The 
Court of Appeals Properly Refused to En­
force This Grand Jury Subpoena as Oppres­
sive ..................................................................  61



11

PAGE

III. The Government May Not Persist in Com­
pelling Mr. Caldwell’s Attendance Before the 
Grand Jury in Disregard of Its Own Guide­
lines ................................................................  66

IV. The First Amendment Forbids Compulsion 
of Mr. Caldwell’s Appearance Before the 
Grand Jury on This Eecord ........................  70

V. Mr. Caldwell Has Standing to Contest the 
Subpoena on the Ground That It Was Based 
Upon Violations of His Fourth Amendment 
Rights ............................................................... 94

C onclusion  .......................................................................................  97

A ppen dices  :

Appendix A: Statutory Provisions .................. la

Appendix B : United States Department of Jus­
tice, Memorandum No. 692, Guide­
lines for Subpoenas to the News 
Media ..............................................  lb

Appendix C: Excerpts from the Government’s
Brief in the Court of Appeals 
Below ..............................................  Ic



Ill

PAGE

T able op A u tho eities

Cases:

Alderman v. United States, 394 U.S. 165 (1969) ,...8, 41, 42,
94, 95, 96

Anderson v. Martin, 375 U.S. 399 (1964) _________ _ 91
Application of Certain Chinese Family Benevolent and 

District Associations, 19 P.R.D. 94 (N.D. Cal. 1956) 78
Application of laconi, 120 F.Supp. 589 (D.Mass.

1954) ..... .................................................................,..63, 64
Ashton V . Kentucky, 384 U.S. 195 (1966) ..................... 82
Associated Press v. KVOS, 80 P.2d 575 (9th Cir. 1935),

rev’d on other grounds, 299 U.S. 269 (1936) ..........  72
Associated Press v. United States, 326 U.S. 1 (1945) 73

Baggett V. Bullitt, 377 U.S. 360 (1964) ........................ . 69
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) .... 91 
Barenblatt v. United States, 360 U.S. 109 (1959) ....77,80 
Bates v. City of Little Rock, 361 U.S. 516 (1960) ....79, 81, 91 
Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967) 72
Blair v. United States, 250 U.S. 273 (1919) ..............63, 76
Branzhurg v. Hayes, O.T. 1970 No. 70-85 .............. 49, 50, 61
Brotherhood of Railroad Trainmen v. Virginia ex rel.

Virginia State Bar, 377 U.S. 1 (1964) ..................... 72
Brown v. Walker, 161 U.S. 591 (1896) .....    76
Bruner v. United States, 343 U.S. 112 (1952) .............. 96

Carter v. United States, 417 F.2d 384 (9th Cir. 1969) 41
Continental Oil Co. v. United States, 330 F.2d 347 (9th

Cir. 1964) ................................ ........................ ..........  78
Costello V. United States, 350 U.S. 359 (1956) .............. 64



IV

PA G E

Cramp v. Board of Public Instruction, 368 U.S. 278
(1961)... .................................. .......................................  82

Dandridge v. Williams, 397 U.S. 471 (1970) ..............59, 94
DeGregory v. Attorney General of New Hampshire,

383 U.S. 825 (1966) ................................... 77, 80, 81, 83, 86
DeJonge v. Oregon, 299 U.S. 358 (1937) .....................72, 73
Dennis v. United States, 384 U.S. 855 (1966) .............  77
Dombrowski v. Plister, 380 U.S. 479 (1965) ................ . 82

Elfbrandt v. Bussell, 384 U.S. 11 (1966) .....................  84
Ex parte Collett, 337 U.S. 55 (1949) ..................... ....... 96

Garland v. Torre, 259 F.2d 545 (2d Cir. 1958) ....78, 79, 85, 86
Garner v. Louisiana, 368 U.S. 157 (1961) ..................... 82
Georgia v. Rachel, 384 U.S. 780 (1966), aff’g 342 F.2d 

336 (5th Cir. 1965), rehearing denied, 343 E.2d 909
(5th Cir. 1965) ........................................... ............ . 96

Gibson v. Florida Legislative Investigation Committee,
372 U.S. 539 (1963) ............. 72,78,80,81,82,83,84,86

Griswold v. Connecticut, 381 U.S. 479 (1965) ....... ...... 73
Grosjean v. American Press Co., 297 U.S. 233 (1936) ....71,

72, 73

Hair v. United States, 289 F.2d 894 (D.C.Cir. 1961) .... 95
Hale V. Henkel, 201 U.S. 43 (1906) ............................64, 78
Hoadley v. San Francisco, 94 U.S. 4 (1876) .................  96

In re Dionisio, 442 F.2d 276 (7th Cir. 1971) .................. 78
In re Grand Jury Subpoena Duces Tecum, 203 F.Supp.

575 (S.D.N.Y. 1961) ...... .................... .......................  83
In re National Window Glass Workers, 287 Fed. 219 

(N.D. Ohio 1922) ...................................... ...............35,63



V

PAGE

Joint Anti-Fascist Refugee Committee v. McGrath, 341
U.S. 123 (1951) ......................................................... 91

Jordan v. Hutcheson, 323 F.2d 597 (4th Cir. 1963) ......  83

Katz V. United States, 389 U.S. 347 (1967) ................. 95

Lament v. Postmaster General, 381 U.S. 301 (1965) ....71, 73 
Liveright v. Joint Committee, 279 P.Supp. 205 (M.D.

Tenn. 1968) ............... ......................................... 78,82,83
Louisiana ex rel. Gremillion v. N.A.A.C.P., 366 U.S. 293 

(1961) .................................................................. 81,84,91

McGrain v. Daugherty, 273 U.S. 135 (1927) .................  77
Martin v. City of Struthers, 319 U.S. 141 (1943) ......  73
Matter of Pappas, O.T. 1971, Ko. 70-94 ........... ......49, 50, 61
Murdock v. Pennsylvania, 319 U.S. 105 (1943) ..........  72

N.A.A.C.P. V . Alabama ex rel. Flowers, 377 U.S. 288
(1964) .........................................................................  85

N.A.A.C.P. V . Alabama ex rel. Patterson, 357 U.S. 449
(1958) ....................................................... 55,72,79,82,91

N.A.A.C.P. V . Button, 371 U.S. 415 (1963) ....72,77,81,82
Near v. Minnesota, 283 U.S. 697 (1931) ........................  72
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ....71,

73, 75
Noto V . United States, 367 U.S. 290 (1961) ... ................   39

People V. Dohrn, Circuit Court of Cook County, Crim­
inal Division, Indictment No. 69-3808 (May 20, 1970) 87

Providence Journal Co. v. McCoy, 94 F.Supp. 186 
(D.R.I. 1950), aff’d on other grounds, 190 F.2d 760 
(1st Cir. 1951) ............      72



VI

PAGE

Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367
(1969) ................... ....... ..............................................  74

School District of Abington Township v. Schempp,
374 U.S. 203 (1963) ................................................. 94

Scull V. Virginia ex rel. Committee on Law Reform and
Racial Activities, 359 U.S. 344 (1959) ..................... 83

Service v. Dulles, 354 U.S. 363 (1957) .................... . 68
Shelton v. Tucker, 364 U.S. 479 (1960) -.72,78,84,86,91
Silverman v. United States, 365 U.S. 505 (1961) ..........  95
Silverthorne Lumber Co. v. United States, 251 U.S. 385

(1920) .................................................... .............. . 95
Smith V. California, 361 U.S. 147 (1959) ..............73, 75,82
Stanley v. Georgia, 394 U.S. 557 (1969) ............ ......... 73
State V. Buchanan, 436 P.2d 729 (Ore. 1968) .............. 79
Stromberg v. California, 283 U.S. 359 (1931) .......... . 73
Sweezy v. New Hampshire, 354 U.S. 234 (1957) ....77, 80, 83

Talley v. California, 362 U.S. 60 (1960) ................. 72, 80, 91
Terminiello v. Chicago, 337 U.S. 1 (1949) .................  73
Thornhill v. Alabama, 310 U.S. 88 (1940) .................. 73
Thorpe v. Housing Authority of the City of Durham,

393 U.S. 268 (1969) ...................................................... 68
Time, Inc. v. Hill, 385 U.S. 374 (1967) .....................73,75

United Mine Workers v. Illinois State Bar Ass’n, 389
U.S. 217 (1967) .... ............................ ............ ..... .....72, 86

United States v. Bryan, 339 U.S. 323 (1950) ..........63, 76
United States v. Dardi, 330 F.2d 316 (2d Cir. 1964) .... 35 
United States v. Judson, 322 F.2d 460 (9th Cir. 1963) .... 78 
United States v. Levinson, 405 F.2d 971 (6th Cir.

1968) ........... ...............................................................  95
United States v. Rumely, 345 U.S. 41 (1953) _____77,80



V ll

PAGE

United States v. Wolfson, 405 F.2d 779 (2d Cir.
1968) ................................................    95

United States ex rel. Accardi v. Shaughnessy, 347
U.S. 260 (1954) .........................................................  68

Uphans v. Wyman, 360 U.S. 72 (1959) ........................  80

Vitarelli v. Seaton, 359 U.S. 535 (1959) ................... . 68

Watkins v. United States, 354 U.S. 178 (1957) .-.77,80,82
Watts V . United States, 394 U.S. 705 (1969) .............. 35
Wong Sun v. United States, 371 U.S. 471 (1963) 95
Wood V . Georgia, 370 U.S. 375 (1962)  ....................... 77

Yates V . United States, 354 U.S. 298 (1957) .................  39

Constitutional and Statutory Provisions:
United States Constitution, First Amendment ...... passim
United States Constitution, Fourtli Amendment ..41, 42, 44,

94, 95, 96
18 U.S.C. § 231 .................................................. 2, 32, 33, 39
18 U.S.C. § 232 ............................................................. 2
18 U.S.C. § 871 ................................................... 2, 32, 33, 39
18 U.S.C. § 1341 ................................................. 2, 32, 33, 39
18 U.S.C. § 1751 ........................................   2, 32,43, 39
18 U.S.C. § 2101 ................................................. 2, 32, 33, 39
18 U.S.C. § 2385 ............................................................. 39
18 U.S.C. § 3504 ............... .............................................2, 96
Fed. Eule Crim. Pro. 17 ..............................................  63



V l l l

PAGE

79

Other Authorities:

Annot. 7 A.L.R. 3d 591 (1966) ................................
Beaver, The Newsman’s Code, The Claim of Privilege 

and Everyman’s Right to Evidence, 47 Obe . L. R ev.
243 (1968) ................................................................  70

The Black Panther, November 22, 1969 ........ 33, 34, 36, 40
The Black Panther, December 27, 1969 ........ .33,34,36,40
The Black Panther, January 3, 1970 ..............33, 34, 36, 40
Comment, Constitutional Protection for the Newsman’s 

Worh Product, 6 H abv. C ivil  R ig h ts-C ivil  L iberties 
L. R ev. 119 (1970) .....................................................

Comment, The Newsman’s Privilege: Government In­
vestigations, Criminal Prosecutions and Private Liti­
gation, 58 Calie . L. R ev. 1198 (1970) .....................

Comment, The Newsman’s Privilege: Protection of 
Confidential Associations and Private Communica­
tions, 4 J. Law Reform 85 (1970) ............................

Department of Justice Memorandum No. 692, “Guide­
lines for Subpoenas to the News Media,” Septem­
ber 2, 1970 ............................................ 2,12, 43, 48, 58, 59,

60, 66, 67, 68, 69
Goldstein (Abraham S.), Newsmen and Their Confi­

dential Sources, The New Republic, March 21, 1970 70
Guest & Stanzler, The Constitutional Argument for 

Newsmen Concealing Their Sources, 64 Nw. IT. L.
R ev. 18 (1969) ............................................................  70

70

70

70



IX

PAGE

Newsweek, February 23, 1970 .......................................  30

The New York Times, Sunday, June 15, 1969 ............. 36

The New York Times, Sunday, July 20, 1969 ............. 36

The New York Times, Tuesday, July 22, 1969 ..... ......  36

The New York Times, Sunday, July 27, 1969 .............. 36

The New York Times, Sunday, December 14,1969 ..35, 36, 38

The New York Times, Sunday, February 1, 1970 ...... 27

The New York Times, Tuesday, February 3, 1970 .....  27

The New York Times, Wednesday, February 4, 1970 .... 27

The New York Times, Thursday, February 5, 1970   27

The New York Times, Friday, February 6, 1970     27

Note, Reporters and Their Sources: The Constitu­
tional Right to a Confidential Relationship, 80 Y ale 
L. J. 317 (1970) ...........................................................  70

The Quill, June, 1970 ......................... ....................... . 27

Recent Case, 82 H arv. L. R ev. 1384 (1969)..................... 79

Time Magazine, April 6, 1970 ............... .......................  30



I n  t h e

Olflitrt flf
October T e em , 1971 

No. 70-57

U nited  S tates oe A merica,
Petitioner,

— v̂.—

E arl Caldw ell,
Respondent.

ON W R IT  O P CERTIO RA RI TO T H E  

U N IT E D  STATES COU RT O P A P P E A L S  PO R  T H E  N I N T H  C IR C U IT

BRIEF FOR RESPONDENT

Opinions Below

The opinions of the United States Court of Appeals for 
the Ninth Circuit reversing respondent’s commitment for 
contempt of court are reported suh nom. Caldwell v. United 
States, 434 F.2d 1081 (9th Cir. 1970), and appear in the 
Appendix at A. 114-130. The District Court wrote no 
opinion when it held respondent in contempt for his refusal 
to appear before a federal grand jury; its contempt judg­
ment and commitment appear at A. 111-113. The District 
Court did write an opinion at an earlier stage of the pro­
ceedings, denying respondent’s motion to quash the grand 
jury subpoena but granting him a protective order against 
questioning that would violate confidential communications.



This opinion and order of the United States District Court 
for the Northern District of California are reported suh 
nom. Application of Caldwell, 311 F. Supp. 358 (N.D. Cal. 
1970), and are set forth at A. 91-97.

Jurisdiction

This Court’s jurisdiction rests upon 28 U.S.C. § 1254 (1). 
The judgment of the Court of Appeals was entered on 
November 16, 1970. A petition for certiorari was filed on 
December 16, 1970, and granted on May 3, 1971.

Constitutional and Statutory 
Provisions and Regulations Involved

This case involves the First Amendment to the Constitu­
tion of the United States, which provides in relevant part:

“Congress shall make no law . . . abridging the free­
dom of speech, or of the press . . . .”

The case also involves 18 U.S.C. §§231-232, 871, 1341, 
1751, 2101-2102, 3504, which are set forth in Appendix A 
to this brief [hereafter cited as App. A. pp. la -lla  m/m].

It involves Department of Justice Memorandum No. 692, 
“Guidelines for Subpoenas to the News Media,” promul­
gated on September 2, 1970, which is set forth in Appendix 
B to this brief [hereafter cited as App. B, pp. lb-3b infra].

Questions Presented

Respondent, a New York Times reporter, was subpoenaed 
to testify before a federal grand jury investigating the 
Black Panthers. The District Court denied his motion to 
quash the subpoena, but granted him a protective order



forbidding interrogation by the grand jury that would in­
vade confidences made to him by Black Panther news 
sources. He was subsequently held in contempt of court for 
refusing to appear before the grand jury. In this context, 
the questions presented are:

I. Did the Court of Appeals err in holding that respon­
dent was not required to appear before the grand jury, 
where (1) the Government did not challenge the District 
Court’s protective order, and (2) the record shows that 
respondent has no information to give the grand jury other 
than information which is covered by the protective order 
or available to the grand jury in the pages of the New York 
Times %

II. Did the Court of Appeals err in holding that the 
First Amendment forbade the compulsion of respondent’s 
appearance before a federal grand jury on this record, 
which shows (1) that his appearance in secret grand jury 
proceedings will destroy his unique confidential relation­
ships with Black Panther news sources; (2) that the Gov­
ernment failed to point to any information concerning the 
Panthers that respondent might possess, which is material 
to any legitimate inquiry by the grand jury; and (3) that 
the Government refused even to identify the information 
sought from respondent or the general subject of the 
grand jury’s investigation in any fashion which would per­
mit the courts below to determine the relevance of, or the 
grand jury’s need for, respondent’s testimony?

III. May the Government properly persist in compelling 
respondent’s appearance before a federal grand jury in 
disregard of its Guidelines for Sulpoenas to the News Media 
which were promulgated following the issuance of the sub­
poena to respondent, but prior to the Court of Appeals 
decision in his favor?



IV. Is respondent’s contempt commitment for refusal 
to obey a grand jury subpoena infirm upon the alternative 
ground that the District Court erred in denying his “stand­
ing” to contend that the subpoena was the product of illegal 
electronic surveillance by the Government upon his private 
interviews with Black Panther sources?

Statement o f the Case 

A. H istory o f proceedings below d

Bespondent Earl Caldwell is a black reporter for the 
New York Times, specializing in the coverage of dissident 
and militant groups. (A. 17-18, 114.) He was assigned to 
the San Francisco office of the Times because the Times’ 
white reporters had been unable to maintain rapport with 
members of the Black Panther Party in the Bay Area 
(A. 17, 34), and “[a]s a result . . . , it became virtually im­
possible for [them] . . .  to gather the kind of information 
necessary to report adequately on the activities, attitudes 
and directions of the Black Panther Party.” (A 34)

Mr. Caldwell had developed “relationships and trusts 
in several years of covering the activities of [militant] 
groups, and . . . was the only newspaperman within The 
New York Times organization to have developed this rela-

' Throughout this brief, citations in the form '■‘A .
0 the printed Appendix. Occasional references are also made to 

the Clerk’s Record m the District Court (which is in two sepl 
rately paginated volumes) and to the reporter’s transcrints of 
nearings m the District Court on April 3, 1970 and June 4 .1  1970 
(wluch are also in two separately paginated volumes). The’form
1 the fo?m“ ‘Il\''°^™®>^ the Clerk’s Record (paginatediob) tJie torm 11 R. -----  refers to volume 2 of the Clerk’s
Record (paginated 1-289) ; the form “I Tr. ----- ” refers to the
transcript of ̂ the hearing of April 3 (paginated 1-78) ; the form



tionsMp.” (A. 17.) Even with this unique background, it 
required several months of associations with Panther Party 
members before Mr. Caldwell gained their complete confi­
dence. (A. 17-18.) “ [A]s they realized [he] . . . could be 
trusted and that [his] . . . sole purpose was to collect . . . 
information and present it objectively in the newspaper and 
that [he] . . . had no other motive, [he] . . . found that not 
only were the party leaders available for in-depth inter­
views but also the rank and file members were cooperative 
in aiding [him] . . .  in the newspaper stories that [he] . . . 
wanted to do.” (A. 17; see A. 122 n. 8.) Through these care­
fully nurtured relationships of trust, Mr. Caldwell obtained 
unusual insights concerning the Panthers’ political views 
and activities which enabled him to write a number of 
extraordinarily illuminating stories for the Times and there­
by to contribute markedly to national public understanding 
of the Panthers.^

On February 2, 1970,® Mr. Caldwell was served with a 
subpoena ordering him to appear and testify before the 
federal grand jury in San Francisco, and to bring with him :

“Notes and tape recordings of interviews covering the 
period from January 1, 1969, to date, reflecting state­
ments made for publication by officers and spokesmen

 ̂ (A. 117, 122 n. 8.) The record contains copies of sixteen 
articles concerning the Black Panthers published by Mr. Caldwell 
under his byline in the New York Times during 1969. (II R. 237- 
256.) We hope that the Court will read particularly those of 
June 14 (A. 83-86), July 27 (A. 87-89), and December 14 (A. 
11-16), which exemplify the remarkable contribution that Mr. 
Caldwell has been able to make to public understanding of the Pan­
thers by virtue of the confidential relationships that are threatened 
with destruction if he is compelled to appear before the grand jury.

® (A. 19.) Between December 23, 1969, and January 12, 1970, 
P.B.I. agents had six times attempted to interview Mr. Caldwell, 
but he had consistently declined to make himself available to talk 
to them or to respond to their inquiries after him. (A. 79.)



6

for the Black Panther Party concerning the aims and 
purposes of said organization and the activities of said 
organization, its officers, staff, personnel, and members, 
including specifically but not limited to interviews 
given by David Hilliard and Raymond ‘Masai’ Hewitt.” 
(A. 20.)

On March 16, he was served with a second subpoena,^ issu­
ing from the same grand jury. Unlike the February 2 
subpoena, the one served on March 16 was a subpoena ad

'* The record clarifies the background of the second subpoena, 
as follows:

The first, February 2 subpoena was originally returnable Feb­
ruary 4. (A. 20.) Subsequently, the grand jury was adjourned 
beyond February 4, and Mr. Caldwell was directed instead to 
appear pursuant to that subpoena on February 11. Still later, by 
agreement of counsel, the return date was postponed to Feb­
ruary 18. (A. 35.)

On February 9, counsel for Mr. Caldwell phoned Government 
counsel and informed him that the following day, February 10, 
Mr. Caldwell and The New York Times Company would move to 
quash the subpoena. Government counsel agreed to a further, 
indefinite continuation of its return date in order to permit the 
Government to study the motions papers before they were filed 
(A. 35.)

On February 10, the motions papers were mailed to Govern­
ment counsel. During the following days, counsel for Mr. Caldwell 
and for The New York Times Company had several inconclusive 
phone conversations with Government counsel. Finally, on Friday, 
March 13, Government counsel informed counsel for Mr. Caldwell 
that the Government had decided upon its position and a course 
of action. The February 2 subpoena would be further continued, 
while the Government would cause Mr. Caldwell to be served with 
a second grand jury subpoena—this one having no duces tecum 
directive—returnable March 25. (A. 35-36.)

Counsel for Mr. Caldwell accordingly made him available for 
service of the second subpoena as soon as the Government could 
issue it: that is, on Monday, March 16. (A. 36.)

(See also the Chronology, attached as Appendix A to the docu­
ment styled Reply to Government’s Opposition, I R. 32-34, for a 
detailed recitation of these events.)



testificandum in the usual undelimited form,® with no duces 
tecum clause. (A. 21.)

On March 17, 1970, Mr. Caldwell and The Neiv York 
Times Company moved the United States District Court 
for the Northern District of California to quash both sub­
poenas, on the grounds that:

“1. Compelling Mr. Caldwell’s appearance before 
the grand jury will cause grave, widespread and ir­
reparable injury to freedoms of the press, of speech 
and of association; and this Court should not permit a 
use of its process that so jeopardizes vital constitu­
tional interests in the absence of an overriding gov­
ernmental interest—not shown here—in securing Mr. 
Caldwell’s testimony before the grand jury;

® The subpoena requires Mr. Caldwell to appear and testify, 
but does not identify the sub.iect matter of his expected testimony. 
In an affidavit, counsel for Mr. Caldwell recited the failure of his 
efforts to elicit from Government counsel the scope of the planned 
interrogation of Mr. Caldwell under the similarly undelimited ad 
testificandum clause of the earlier, February 2 subpoena:

“On Wednesday. February 4, 1.970, . . . T met with [coun­
sel for The New York Times Company and with Government 
counsel including Victor C. Woerheide, Esq.] . . .  to inquire 
of government counsel concerning the subject and scope of 
the grand jury investigation pursuant to which the [Feb­
ruary 2] subpoena had issued, and concerning the sorts of 
information that the grand jury wanted from Mr. Caldwell.

“Mr. Woerheide informed me that a Federal grand jury 
has ‘broad investigative powers,’ and that he was unable to 
‘limit the inquiry of the grand jury in advance.’ I indicated 
that, nevertheless, it was important to me to know what was 
the subject of the jury’s inquiry, in order to determine 
whether information sought from Mr. Caldwell was in any 
way relevant to it. Mr. Woerheide replied that the subject 
of a grand jury’s investigation was ‘no concern of a witness’ ; 
and that he could not define it further than to say that if I 
‘read the newspaper accounts of the Black Panthers, I should 
know what the grand jury was concerned with.’ ” (A. 9.1

(See also A. 118.)



8

“2. The subpoenas, in their undelimited breadth, 
intrude upon confidential associations necessary for 
the effective exercise of First Amendment rights and 
therefore protected by that Amendment against gov­
ernmental abridgement; and

“3. The subpoenas are very probably based upon 
information obtained by the Government through 
methods of electronic surveillance that violated movant 
Caldwell’s Fourth Amendment rights.” ® (A. 4.)

The motion was heard upon affidavits and documentary 
exhibits by the Honorable Alfonso J. Zirpoli on April 3, 
1970.'' At the hearing, the Government withdrew the Feb­
ruary 2 subpoena (A. 91 n. I Tr. 5-8), thus removing it 
from contention between the parties and rendering it rele­
vant only (as Judge Zirpoli put it) “insofar as it may shed 
light on the testimony that the Government hoped to elicit” 
from Mr. Caldwell (I. Tr. 7-8; see A. 91 n. *). Following 
the hearing. Judge Zirpoli denied the motion to quash the 
subpoena of March 16, but did hold that Mr. Caldwell was 
entitled to a protective order delimiting the scope of his 
interrogation by the grand jury because:

“When the exercise of the grand jury power of testi­
monial compulsion so necessary to the effective func­
tioning of the court may impinge upon or repress First 
Amendment rights of freedom of speech, press and 
association, which centuries of experience have found

* In connection with this third point, the motion papers re­
quested expressly that the District Court “conduct the sort of 
inquiry into the fact, circumstances, and products of electronic 
surveillance envisaged by Alderman v. United States, 394 U.S. 
165 (1969).” (II R. 31-32.)

The portions of this evidentiary record relevant to the issues 
now before this Court are described in detail in the following 
subsection, pp. 15-42 infra.



9

to be indispensable 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 com­
pelling and overriding national interest that cannot be 
served by alternative means.

“Accordingly, it is the order of the Court that Earl 
Caldwell shall respond to the subpoena and appear be­
fore the grand jury when directed to do so, but that he 
need not reveal confidential associations that impinge 
upon the etfective exercise of his First Amendment 
right to gather news for dissemination to the public 
through the press or other recognized media until such 
time as a compelling and overriding national interest 
which cannot be alternatively served has been estab­
lished to the satisfaction of the Court.

“The contention of movants that the subpoenas ‘are 
very probably based upon information obtained by the 
Government through electronic surveillance’ is, upon 
the facts before the Court, one that movants do not at 
this posture of the grand jury investigation have stand­
ing to raise and to the degree that movants seek to 
quash the subpoena on this ground, the same is denied.” 
(A. 93.)

This ruling was embodied in a memorandum opinion filed
April 6 (A. 91-93) and an order filed April 8 (A. 94-97).*

* The order makes the several factual findings, based upon the 
record, that are set out at pp. 17-41 infra of this brief. By reason 
of those findings, it orders:

“ (1) That if and when Earl Caldwell is directed to appear 
before the grand jury pursuant to the subpoena of March 16, 
1970, he shall not be required to reveal confidential associa­
tions, sources or information received, developed or main­
tained by him as a professional journalist in the course of 
his efforts to gather news for dissemination to the public 
through the press or other news media;

“ (2) That specifically without limiting paragraph (1), Mr. 
Caldwell shall not be required to answer questions concerning



10

Apparently believing tbat both parts of the ruling—requir­
ing Mr. Caldwell to appear before the grand jury, and giv­
ing him a protective order——were appealable and raised 
substantial constitutional questions,^ Judge Zirpoli stayed 
the effective date of his decision pending appeal. (A. 96-97.)

On April 17, Mr. Caldwell filed a notice of appeal to the 
Court of Appeals for the Ninth Circuit. On April 30, the 
Government moved to dismiss that appeal upon the ground 
that Judge Zirpoli’s order was interlocutory and unappeal­
able, and that the appeal was frivolous and would cause an 
undue interruption of the grand jury inquiry. On May 12,

statements made to him or information given to him by mem­
bers of the Black Panther Party unless such statements or 
information were given to him for publication or public dis­
closure” (A. 96),

provided, however, that:

“the Court will_ entertain a motion for modification of this 
order at any time upon a showing by the Government of a 
compelling and overriding national interest in requiring Mr. 
Caldwell’s testimony which cannot be served by any alter­
native means . . (A. 96).

Otherwise, the motion to quash the subpoena of March 16 is de­
nied. (A. 96.)

"See I Tr. 5:

“ [Th e  Co urt :] . . . The ease is one of first impression and 
the interests at stake are of significant magnitude, for their 
resolution may well be determinative of the scope of the 
journalist’s privilege as it relates to highly sensitive areas of 
freedom of speech, press and association not heretofore fully 
explored and decided by the Supreme Court of the United 
States. Whatever affects the rights of the parties to this litiga­
tion affects all.

“Hence, the Court assumes that any Order it enters in this 
ease will be appealed, and that such Order should, therefore, 

all probability, be stayed to await an authoritative deter- 
mmation by the Court of Appeals of [sic: “or”] the Supreme 
Court of the United States.”



11

the Court of Appeals dismissed the appeal without opinion. 
{Application of Caldivell, 9th Cir., No. 25802, unreported 
order of May 12, 1970.)

At the end of the first week in May, the term of the grand 
jury that had issued the March 16 subpoena expired, and a 
new g-rand jury was sworn. Accordingly, the Government 
caused the new grand jury to issue a new subpoena ad 
testificandum for Mr. Caldwell. (See I R. 33.) At the in­
stance of counsel for Mr. Caldwell, on May 19 the District 
Court conferred with the attorneys for all parties, to dis­
cuss procedures for making the April 8 order applicable to 
the new subpoena and for preserving Mr. Caldwell’s right 
to appellate review of his constitutional contentions follow­
ing the entry of an indisputably final order—i.e., one ad­
judging him in contempt. Following that conference, coun­
sel for Mr. Caldwell accepted service of the new subpoena 
on May 22. (See I B. 26, 33-34.) On May 26, Mr. Caldwell 
and The New- York Times Company moved to quash the 
May 22 subpoena upon the same grounds earlier urged 
against the March 16 subpoena (A. 98), and also moved 
that the record of all prior proceedings be made a part of 
the record for purposes of the motion to quash (I B. 3).

On June 4, Judge Zirpoli granted the motion to incorpo­
rate the record of prior proceedings (A. 102-103), denied 
the motion to quash the May 22 subpoena (A. 105), and 
issued a protective order governing the May 22 subpoena 
that was substantially identical to his order of April 8 (ex­
cept that it expressly ordered Mr. Caldwell to appear before 
the grand jury, and it omitted any provision for a stay pend­
ing appeal) (A. 104-105).

The same day, Mr. Caldwmll declined to appear before 
the grand jury. His counsel so represented to the District 
Court; and the District Court ordered Mr. Caldwell to show 
cause the following morning why he should not be held in



12

contempt. (II Tr. 5-6, 9-15; A. 106-107.) On June 5, Mr. 
Caldwell appeared in the District Court, repeated Ms re­
fusal to appear before the grand jury (A. 110), repeated 
his constitutional objections to his compelled appearance 
before the grand jury (A. 10'8-109), and—following the 
court’s overruling of those objections {ihid.)—was held in 
contempt (A. 111-113). He immediately filed a notice of 
appeal (I R. 47), and the District Court stayed its contempt 
order pending appeal (I R. 49).

On September 2, 1970, the Department of Justice issued 
its Memorandum No. 692, “Guidelines for Subpoenas to the 
News Media” (App. B, pp. lb-3b infra). Government coun­
sel called these guidelines to the attention of the Court of 
Appeals during oral argument of the appeal on September 
9, 1970, and thereafter filed a copy with the Court of Ap­
peals.̂ ® The Government did not, however, attempt to ex­
plain the applicability of the guidelines to the Caldwell 
case; it mentioned them, apparently, merely as a means of 
persuading the Court of Appeals that the constitutional 
protection sought by Mr. Caldwell was unnecessary. The 
Government’s basic position in the Court of Appeals was 
that, under no circumstances, did the First Amendment 
protect a newspaper reporter from the obligation to appear 
and testify when subpoenaed by a federal grand jury. The 
grand jury

“ . . .  is . . .  not required to have a factual basis for com­
mencing an investigation and can pursue rumors which 
further investigation may prove groundless. . . .  It 
therefore, is not required and has not been required to

The guidelines had first been announced in a speech by the 
Attorney General of the United States before the House of Dele­
gates of the American Bar Association in St. Louis on August 10, 
1970; and it was in the form of the press release of this speech 
that they were furnished by the Government to the Court of Ap­
peals.



13

make any preliminary showing before calling any per­
son as a witness and accordingly need not show any 
reason for any testimony or evidence. Only the grand 
jury can properly decide what may be useful to its 
investigation.”

Accordingly, even where First Amendment interests were 
jeopardized by the compulsion of testimony under a grand 
jury subpoena, the federal courts were not entitled to in­
quire into the grand jury’s need for the testimony, nor to 
weigh that need against the harm to First Amendment free­
doms involved in its compulsion.^  ̂ This was particularly 
true in Mr. Caldwell’s case because “the district court in a 
protective order has already given [Mr. Caldwmll] . . .  as­
surances that he does not have to disclose either confidential 
information or confidential sources of information.” 
Thus, while noting its disagreement with Judge Zirpoli’s 
protective order,“ the Government declined to challenge 
the validity of that order upon this appeal, but rather urged 
that because of the protection afforded by the order, Mr. 
Caldwell needed no other judicial relief against his com­
pelled appearance before the grand jury.̂ ®

The Court of Appeals disagreed. It concluded, with the 
District Court, that “First Amendment freedoms are here 
in jeopardy” (A. 118), and that their preservation required 
the District Court’s protection in the form of the order it

Brief for the United States in the Court of Appeals, pp. 11-12. 
The relevant portions of that brief are reproduced in Appendix G 
to this brief [hereafter cited as App. C, pp. le-12c infra], wherein 
the passage just quoted appears at App. C, p. 5c infra.

1̂  Id. at 13-19; App. C, pp. 6c-12c infra.
1® Id. at 14; App. C, p. 7c infra.
11 Id. at 7-8; App. C, pp. lc-2e infra.
1® See also id. at 15-16; App. C, pp. 8c-10c infra.



14

had made, prohibiting grand jury interrogation of Mr. 
Caldwell that wonld invade his confidences as a newsman, 
in the absence of a showing by the Government of a “com­
pelling or overriding* national interest” in pursuing such 
interrogation (A. 121).̂ ® But it further found that “the 
privilege not to answer certain questions does not, by itself, 
adequately protect the First Amendment freedoms at stake 
in this area” (A. 124), because “['t]he secrecy that surrounds 
Grand Jury testimony necessarily introduces uncertainty 
in the minds of those who fear a betrayal of their confi­
dences” (A. 123).

“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 protected by the privilege.

“Appellant asserted in affidavit that there is nothing 
to which he could testify (beyond that which he has al­
ready made public and for which, therefore, his appear­
ance is unnecessary) that is not protected by the 
District Court’s order. If this is true—and the Govern­
ment 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

* Asterisks will be used in this brief to indicate words that are 
incorrectly printed in the Appendix. The brief will reproduce 
such words as they appear in the original document.

The foundation for these conclusions, and for the conclusions 
of the Court of Appeals next described in the text, is set forth in 
detail in the following subsection, pp. 15-41 infra.



15

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 stUl serve a use­
ful purpose before the Grand Jury. Considering the 
scope of the privilege embodied in the protective order, 
these occasions would seem to be unusual. It is not 
asking too much of the Government to show that such 
an occasion is presented here.

“In light of these considerations we hold that where 
it has been shown that the public’s First Amendment 
right to be informed would be jeopardized by requiring 
a journalist to submit to secret Grand Jury interroga­
tion, the Government must respond by demonstrating 
a compelling need for the witness’ presence before judi­
cial process properly can issue to require attendance.” 
(A. 125).

Finding no such demonstration on this record, the Court 
of Appeals held that “the judgment of contempt and the 
order directing ['Mr. Caldwell’s] attendance before the 
Grand Jury [must] be vacated.” (A. 127.) It accordingly 
found no need to reach the additional question whether the 
District Court had erred in enforcing a grand jury sub­
poena, in the circumstances of this case, while refusing to 
inquire whether the subpoena was based upon unconstitu­
tional electronic surveillance of Mr. Caldwell’s interviews 
with Black Panther news sources. (A. 126-127.)

B. Facts relevant to the constitutional issues presented.

1. T h e  F irst A m e n d m e n t Issue

To an extent never previously shown, this record docu­
ments the devastating effect that the compulsion of news-



16

men’s testimony lias upon freedom of the press.” The Court 
of Appeals found that: “The fact that the subpoenas would 
have a ‘chilling etfeet’ on First Amendment freedoms was 
impressively asserted in affidavits of newsmen of recog’- 
nized stature,* to a considerable extent based upon recited 
experience.” (A. 116-117.) Those affidavits—by Walter 
Cronkite, J. Anthony Lukas, Eric Sevareid, Mike Wallace, 
among others—made the basic points: that confidential 
communications to newsmen are indispensable to their 
gathering, analysis and dissemination of the news; that 
when newsmen are subpoenaed to appear and testify con-

”  For reasons made plain by the course of proceedings described 
in the preceding subsection, this record was developed in connec­
tion with the subpoena of March 16. However, it applies with 
equal force to the subsequent subpoena of May 22 that underlies 
the contempt adjudication now under review. This is so because; 
(1) Mr. Caldwell’s motion to quash the May 22 subpoena alleged 
that that subpoena was issued on the same basis and with the same 
purpose as the subpoena of March 16. (A. 98.) (2) The Govern­
ment’s opposition to the motion admitted th a t; “The matter under 
investigation now is the same matter that was under investigation 
as of April 8, 1970. The testimony to be elicited from him [Mr. 
Caldwell] now is the same testimony which was being sought on 
April 8, 1970. All the pertinent facts relating to the matter then 
in issue had been brought to the attention of this Court at the 
time it entered its order on April 8, 1970 [relative to the March 16 
subpoena].” (A. 100.) (3) On June 4, 1970, Judge Zirpoli ex­
pressly ordered: “That the entire record of proceedings hereto­
fore had [in connection with the March 16 subpoena] . . . , including 
all subpoenas issued, motions made, affidavits, exhibits, documents, 
briefs and other papers filed, proceedings had, rulings made, and 
the Opinion and Order of the Court entered [on April 6 and 
April 8, respectively] . . .  is made a part of the record upon which 
the Court will hear and determine movants’ Motion to Quash 
Grand Jury Subpoena Served May 22, 1970.” (A. 102-103.)
(4) Judge Zirpoli’s order upon the motion to quash the May 22 
subpoena was explicitly based on “the entire record of proceedings 
previously had . . . relative to the March 16 subpoena.” (A. 104.)
(5) In replying to the order to show cause why he should not be 
held in contempt for failure to respond to the May 22 subpoena 
counsel for Mr. Caldwell explicitly relied upon the same record of 
prior proceedings. (A. 108.) (6) Judge Zirpoli’s order adjudging 
Mr. Caldwell in contempt again explicitly relied upon the same 
record of prior proceedings. (A. 111.)



17

cerning information obtained by them in their professional 
capacities, their confidential news sources are terrified of 
disclosure and consequently shut up; that the mere appear­
ance of a newsman in secret grand jury proceedings, where 
what he has told cannot be known, destroys his credibility, 
ruptures his confidential associations, and thereby irrepara­
bly damages his ability to function professionally; and that 
the resulting loss of confidence spreads rapidly and widely 
to other newsmen, thus critically impairing the news­
gathering capacities of the media and impoverishing the 
fund of public information and understanding. Correspon­
dents long experienced in dealings with militant and dissi­
dent political groups averred that these elfects are particu­
larly severe in the ease of such groups, naturally distrust­
ful as they are, and fearful of government repression. In 
addition, the affidavits detailed numerous specific episodes 
in which compelled testimony by journalists had had the 
immediate and drastic etfect of silencing their sources: 
the very issuance of the subpoenas to Earl Caldwell that are 
presently in issue frustrated newsmen’s interviews with 
previously willing confidants concerning black militant af­
fairs in several areas of the country, and entirely aborted 
a proposed ABC documentary on the Black Panthers.

In his decision of April 8 according Mr. Caldwell a pro­
tective order. Judge Zirpoli made express findings of fact 
based upon these affidavits. After a painstaking review of 
the entire record, the Court of Appeals affirmed Judge Zir- 
poli’s major factual findings. We next recite those findings, 
cite the convincing support that the record gives them, and 
add explanatory factual details that the record also un- 
controvertibly establishes.

Judge Zirpoli found, preliminarily:
“(1) That the testimony of Earl Caldwell sought to 

be compelled by the subpoena . . . will relate to activi­
ties of members of the Black Panther Party;”



18

and:
“(2) That Mr. Caldwell’s knowledge of those activi­

ties derived in substantial part from statements and 
information given to him, as a professional journalist, 
by members of the Black Panther Party, vdthin the 
scope of a relationship of trust and confidence.” (A. 95; 
see also A. 104.)

These two points were accepted by the Court of Appeals^* 
and are plainly correct.^^

The Court of Appeals recited that Mr. Caldwell “has become 
a specialist in the reporting of news concerning the Black Panther 
Party” and that “ [t]he Grand Jury is engaged in a general in­
vestigation of the Black Panthers and the possibility that they 
are engaged in criminal activities contrary to federal law.” (A. 
114.) It approved the following statement of Mr. Caldwell’s 
“history [as] . . . related in his moving papers:

“Earl Caldwell has been covering the Panthers 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 views and activities freely 
with Mr. Caldwell. * * * Their confidences have enabled him 
to write informed and balanced stories concerning the Black 
Panther Party which are unavailable to most other newsmen.” 
(A. 117; see also A. 122 n. 8.)

The Court of Appeals accordingly characterized Mr. Caldwell as a 
“reporter who . . . uniquely enjoys the trust and confidence of his 
sensitive news source” (A. 126), and it noted that the Government 
has not disputed Mr. Caldwell’s sworn assertion that “there is 
nothing to which he could testify (beyond that which he has al­
ready made public and for which, therefore, his appearance is un­
necessary) that is not protected by the District Court’s order” (A. 
125)—i.e., nothing that did not derive from “confidential associa­
tions, sources or information received, developed or maintained by 
him as a professional journalist in the course of his elforts to gather 
news for dissemination to the public through the press or other 
news media” (A. 96).

“  That the subject of the grand jury inquiry is the activities of 
the Black Panthers appears (1) from the duces tecum rider to the 
first, February 2 subpoena served on Mr. Caldwell (A. 20; see pp.



19

Judge Zirpoli further found:

“ (3) That confidential relationships of this sort are 
commonly developed and maintained by professional 
journalists, and are indispensable to their work of 
gathering, analyzing and publishing the news.” (A. 95; 
see also A. 104.)^“

Indeed, the record establishes that newsmen in every 
medium, covering every aspect of the news-domestic and 
foreign affairs, the operations of government from the 
police station to the White House, the activities of political 
militants, presidential candidates, the F.B.I. and the Penta-

5-6 supra) ; and (2) from the first and last paragraphs of the Gov­
ernment’s Memorandum in Opposition to Motion to Quash Grand 
Jury Subpoenas, and the affidavits of Government attorneys Fran­
cis L. Williamson, Esq., and Victor C. Woerheide, Esq., attached 
thereto (A. 62-73).

Mr. Caldwell’s affidavit establishes that his only knowledge of 
the Black Panthers comes through the confidential relationships 
that he has established and maintained with them in his capacity 
as a professional journalist. (A. 17-19.) It describes the develop­
ment and nature of those relationships in detail. {Ibid.; see also 
pp. 4-5 su-pra.)

“The Black Panther Party’s method of operation with re­
gard to members of the press is significantly different from 
that of other organizations. For instance, press credentials are 
not recognized as being of any significance. In addition, in­
terviews are not normally designated as being ‘backgrounders’ 
or ‘off the record’ or ‘for publication’ or ‘on the record.’ Be­
cause no substantive interviews are given until a relationship 
of trust and confidence is developed between the Black Pan­
ther Party members and a reporter, 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 dis­
close for publications and those matters which are given in 
confidence.” (A. 18, quoted by the Court of Appeals at A 122 
n. 8.)
The Court of Appeals added:



20

gon—depend critically upon such confidential relationships. 
(A. 41-42, 52-53, 54, 55-58, 59-60, 61.) The relationships 
are subtle, involving the growth of trust and understanding 
between a newsman and his news sources. (A. 18-19, 39-40, 
41-42.)^  ̂ Walter Cronkite thus describes the function of 
the information communicated with these relationships:

“In doing my work, I (and those who assist me) 
depend constantly on information, ideas, leads and 
opinions received in confidence. Such material is es­
sential in digging out newsworthy facts and, equally 
important, in assessing the importance and analyzing 
the significance of public events. Without such ma-

“ . . . The very concept of a free press requires that the news 
media be accorded a measure of autonomy; that they should be 
free to pursue their own investigations to their own ends with­
out 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 in­
vade 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.” (A. 120.)
The Court of Appeals quoted the following description of these 

sorts of relationships from one newsman’s afSdavit (A. 41-42) :
“ . . . [0]n every story there is a much subtler and much more 

important form of communication at work between a reporter 
and his sources. It is 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 feel­
ing for what the other will do. The reporter senses how far 
he can go in writing before the source will stop communicat­
ing with him. The source, on the other hand, senses how much 
he can talk and act freely before he has to close off his pres­
ence and his information 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.” (A. 122 n. 8.)

Mr. Caldwell’s own description of his confidential relationships 
with Black Panther sources is set forth in note 19, supra.



21

terials, I would be able to do little more than broadcast 
press releases and public statements.” (A. 52.)

(See also A. 55-57, 59, 61.)

These sorts of confidential relationships are particularly 
important to reporters in the black community.^^ “Because 
of the cohesiveness of the black activist community a re­
porter’s credibility is peculiarly important. . . .  To cover 
black activist groups effectively it is necessary for a re­
porter to establish their confidence in him so that one per­
son will tell another, ‘I know him. I can vouch for him.’ ” 
(A. 22.) (See also A. 24-25.) Especially in dealings with 
militant groups, the relationships are indispensable.'® “Be­
cause the Panthers and other dissident groups feel op­
pressed by established institutions, they will not speak with 
newspapermen until a relationship of complete trust and 
confidence has been developed.” (A. 17.) “The only possible 
way to overcome [militants’] . . . reluctance ['to confide in 
reporters] is to build up—often slowly and meticulously— 
a personal relationship with radicals and dissidents who 
trust you.” (A. 39.)

Judge Zirpoli found:

“(4) That compelled disclosure of information re­
ceived by a journalist within the scope of such confiden­
tial relationships jeopardizes those relationships and 
thereby impairs the journalist’s ability to gather, an­
alyze and publish the news.” (A. 95; see also A. 104.)

"  In recent years, black activists have come increasingly to dis­
trust, and to cease to relate to, white newsmen. (A. 34, 41.)

Like blacks, militants generally have become increasingly dis­
trustful of reporters in recent years. (A. 18-19, 39.) In part, this 
distrust appears to have been occasioned by disclosures that P.B.I. 
agents and other law enforcement officials have posed as reporters 
(A. 19, 22.) F



22

The Court of Appeals agreed that “['t]he affidavits con­
tained in this record required [that] . . . conclusion.” 
(A. 118.)̂  ̂ As John Kifner put it:

The following affidavits are examples. (See also pp. 24-30 
infra.) In each ease, the newsman’s conclusions are supported by 
specific episodes drawn from his considerable journalistic experi­
ence ; and his entire affidavit should be read, although only its ulti­
mate conclusions are set forth here:

Walter Cronkite (A. 53) ;

unable to obtain much of the material 
that is indispensable to my work if it were believed that people 
could not talk to me confidentially. I certainly could not work 
effectively if I had to say to each person with whom I talk that 
any information he gave me might be used against him.

“ . . . On the basis of the foregoing and my experience as a 
news correspondent, it is my opinion that compelling news 
correspondents to testify before grand juries with respect to 
matters learned in the course of their work would largely de­
stroy their utility as gatherers and analysts of news.”

Eric Sevareid (A. 54) :
“ . . . Many people feel free to discuss sensitive matters with 

me in the knowledge that I can use it with no necessity of 
attributing it to anyone. This relationship has always been 
particularly the case for columnists or commentators.

“ . . . Should a widespread impression develop that my 
information or notes on these conversations is subject to claim 
by government investigators, this traditional relationship es­
sential to my kind of work, would be most seriously jeopar­
dized. I would be less well informed, myself, and of less use 
to the general public as an interpretor or analyst of public 
affairs.”

Mike Wallace (A. 55, 57-58):
“In my experience in investigative news gathering the abil­

ity to establish and maintain the confidence of people who may 
be willing to suggest leads and divulge facts and background 
information to me has been essential. If such people believed 
that I might, voluntarily or involuntarily, betray their trust 
by disclosing my sources or their private communications to 
me, my usefulness as a reporter would be seriously diminished.

“ [After reciting instances:] In each of the foregoing in­
stances, I was able to do my work because people felt assured



23

“Based upon my experience as a news reporter, it is 
clear to me that when reporters covering dissenting 
forces in society are forced to testify about them, their 
neutrality is compromised and all confidence in them is 
lost. Before a person will talk openly to a reporter, he 
must believe that the reporter will respect what is told

that their confidences would be respected. If I were now forced 
to reveal such confidential information, I could never again 
count on the cooperation of those people or anyone else in 
developing similar material in the future. In my opinion the 
public would be the loser in the long run.”

Ban Bather (A. 60) :
“ . . . The fear that confidential discussions may be divulged, 

as a result of grand jury subpoenas or otherwise, would curtail 
a reporter’s ability to discover and analyze the news. This is 
not mere speculation on my part. In recent weeks, a long-time 
friend and news source, who has dealt in confidence with me 
for more than a dozen years, has declined to do so. He has, 
on many occasions in the past, been responsible for truths, 
otherwise unobtainable, appearing in my reporting on civil 
rights, government and politics. This decent, honest citizen, 
who cares deeply about his country, has now told me that he 
fears that pressure from the Government, enforced by the 
courts, may lead to violations of confidence, and he is there­
fore unwnlling to continue to communicate with me on the 
basis of trust which formerly existed between us. This inci­
dent is representative of the loss that reporters and those who 
depend upon them for truth will suffer if reporters can be 
forced to disclose confidential communications and private 
sources. The very possibility of such forced disclosure is, in 
my experience, sufficient to foreclose important channels of 
communication.”

Marvin Kalh (A. 61) :
“ . . . I f  my sources were to learn that their private talks 

with me could become public, or could be subjected to outside 
scrutiny by court order, they would stop talking to me, and 
the job of diplomatic reporting could not be done.”

Martin Arnold (A. 42) ;
“ . . .  If it becomes known that a reporter is willing to tell 

a Government agency what he has heard or learned or saw, 
his usefulness will be destroyed because news sources will no 
longer speak to him.”



24

in confidence. The threat that the reporter my have to 
disclose such confidences has a chilling effect on his 
relationships with news sources and, in my opinion, 
could eventually destroy any possibility of a free flow 
of information.” (A. 27.)

Newsmen having specialized experience with black mili­
tant groups affirm that relationships with such groups par­
ticularly, would he destroyed if a reporter appeared under 
subpoena to testify before a government agency investi­
gating them.^  ̂ The Court of Appeals concluded that:

“The affidavits on file cast considerable light on the 
process of gathering news about militant organizations. 
It is apparent that the relationship which an effective 
privilege in this area must protect is a very tenuous 
and unstable one. . . . The relationship depends upon 
a trust and confidence that is constantly subject to re­
examination and that depends in turn on actual knowl­
edge of how news and information imparted have been 
handled and on continuing reassurance that the han­
dling has been discreet.” (A. 122-123.)̂ ®

Finally, Judge Zirpoli found:
“(5) Specifically, that in the absence of a protective 

order by this Court delimiting the scope of interroga-

A. 24-25, 31, 37-38. See, e.g., the affidavit (A. 22-23) quoted 
by the Court of Appeals (A. 123 n. 8) :

“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 generally. His testifying 
will also make it more difficult for other reporters to cover that 
community. The net result, therefore, will be to diminish seri­
ously the meaningful news available about an important seg­
ment of our population.”

26 See A. 24-25, 26-27, 32-33, 39-40, 41-42.



25

tion of Earl Caldwell by the grand jury, his appear­
ance and examination before the jury will severely im­
pair and damage his confidential relationships with 
members of the Black Panther Party and other mili­
tants, and thereby severely impair and damage his 
ability to gather, analyze and publish news concerning 
them; and that it will also damage and impair the 
abilities of other reporters for The New York Times 
Company and others to gather, analyze and publish 
news concerning them.” (A. 95; see also A. 104-105.)”

And the Court of Appeals found that these same harms 
would follow Mr. Caldwell’s grand jury appearance even 
under shelter of the District Court’s protective order, be­
cause the assurance of confidence required by a reporter in 
order to maintain the trust of militant news sources

“ . . . disappears when the reporter is called to testify 
behind closed doors. The secrecy that surrounds Grand 
Jury testimony necessarily introduces uncertainty in 
the minds of those who fear a betrayal of their confi­
dences. 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

”  Following its study of the entire record, the Court of Appeals 
took the same view, as quoted from Mr. Caldwell’s papers:

'Tf Mr. Caldwell were to disclose Black Panther eojsfidences 
to governmental officials, the grand jury, or any other person, 
he would thereby destroy the relationship of trust wliieh he 
presently enjoys with the Panthers and other militant groups. 
They would refuse to speak to him; they would become even 
more reluctant than they are now to speak to any newsmen ,- 
and the news media would thereby be vitally hampered in 
their ability to cover the views and activities of the militants ” 
(A. 117.)



26

information. Militant groups might very understand­
ably fear that, under the pressure of examination be­
fore a Grand Jury, the witness may fail to protect their 
confidences with quite the same sure judgment he in­
vokes in the normal course of his professional work.” 
(A. 123.)

These conclusions, also, are fully sustained by the record. 
Mr. Caldwell’s sworn, categorical assertion that his com­
pelled appearance before a federal grand jury investigating 
the Black Panthers would completely destroy his confiden­
tial association with the Panthers and with other militant 
groups^®—that, “if I am forced to appear in secret grand 
jury proceedings, my appearance alone would be interpre­
ted by the Black Panthers and other dissident groups as a 
possible disclosure of confidences and trusts and would 
. . . destroy my effectiveness as a newspaperman” — ŵas 
seconded by other experienced journalists. (A. 22-23, 37-38.) 
Thomas Johnson, another black New' Yorh Times reporter 
with eleven years of journalistic experience, gave this 
opinion:

“Based on my own experiences, being black and 
knowing the black community, I can say with certainty 
that any appearance by a black journalist behind closed 
doors, such as the appearance that Earl Caldwell . . , 
has been subpoenaed to make before a Grand Jury, 
would severly ['sic] damage his credibility in the black 
community. . . .” (A. 25.)

Trust or distrust of particular reporters is widely conveyed 
from one militant group to another. (See A. 22.) “ [Sjuspicion and 
distrust travels rapidly in the Movement. Violate one man’s con­
fidence and sources start drying up all over the place.” (A. 40.)

(A. 19.) Quoted by the Court of Appeals at A. 122-123 n.8.



21

The destruction of Mr. Caldweirs credibility would taint 
other JVew York Times reporters as well,®" and would dis­
able the Times from gathering “information required to 
report on the Black Panther Party and dissident groups 
effectively.” (A. 34.)

These are not at all conjectural fears. This record is re­
plete with concrete and specific descriptions of the actual 
reactions of confidential news sources to the recent rash of 
federal subpoenas issued to reporters in connection with 
investigations of militant political groups." Citing specif­
ically their fear of subpoenas, previously willing informants 
concerning militant matters have been reluctant or entirely 
unwilling to be interviewed by newsmen. (A. 44-45, 49-50; 
see also A. 60.) Following the service of the February 2 
subpoena upon Earl Caldwell, Newsweek’s Massachusetts 
Bureau Chief was unable to secure the cooperation of a 
formerly useful source of black militant information in an 
interview. (A. 46-47.) The Times criminal justice corres-

The case of New York Times Reporter Anthony Ripley dra­
matically demonstrates the spreading effect of distrust of reporters 
by militants following one reporter’s compelled testimony. On -Tune 
3, 1969, Mr. Ripley was subpoenaed to testify before the House 
Internal Security Committee because of news stories that he wrote 
about the 1968 S.D.S. national convention. The result was not only 
total destruction of Mr. Ripley’s own relationships with militants, 
and of his ability to cover militant activities (A. 32-33), but severe 
impairment of the ability of other Times reporters to relate to or 
cover the S.D.S. (A. 24, 26-27, 41-42), and exclusion of the entire 
“establishment press” from the 1969 S.D.S. convention (A. 26-27).

"  The federal subpoenas were the subject of a press release by 
Attorney General John Mitchell on February 5, 1970, reprinted in 
The New York Times, Friday, February 6, 1970, p. 40, col. 4. They 
are discussed in New York Times articles of Sunday, February 1, 
1970, p. 24, col. 1 Tuesday, February 3, 1970, p. 20, col. 6; Wednes­
day, February 4, 1970, p. 1, col. 1; Thursday, February 5, 1970, 
p. 1, col. 2; Friday, February 6, 1970, p. 1, col. 7. And see the 
resolution of the Board of Directors of Sigma Delta Chi, adopted 
at the annual Spring meeting of the journalists’ association, April 
24-25, 1970, reported in The Quill, June, 1970, p. 38.



28

pondent in New York City found tkat kis news sources 
were unwilling to discuss sensitive matters in connection 
witk kis attempts to cover Black Pantker activities in 
Brooklyn and otker stories. (A. 43.) In Los Angeles, a 
Newsweek correspondent wko kad tkeretofore kad good 
relations witk tke local Pantker office was refused an 
interview unless and until ke was cleared by tke Pantker 
Party Headquarters in Berkeley. He was finally cleared 
after giving Newsweek’s and kis own assurances tkat tkey 
kad and would resist Government attempts to secure inter­
view materials by subpoena; but by the time this clearance 
came through, the news source that he wanted to interview 
had left Los Angeles, and the correspondent was unable to 
contact him. (A. 30-31.) In San Francisco, an ABC tele­
vision team dispatched to the West Coast to do a docu­
mentary on the Panthers was refused cooperation first by 
the Black Panther Party and subsequently by the Oakland 
Black Caucus in the absence of assurances that ABC would 
fight Government subpoenas of out-takes®* “to the highest 
court possible.” (A. 28.) As a result, the proposed docu­
mentary was aborted. (A. 28-29, 37.) In each of these in­
stances, the refusal of news sources to cooperate was ex­
pressly based upon fears generated by the Caldwell and 
related subpoenas.

Newsmen uniformly agree that, if they were compelled to 
testify under such subpoenas, the effect would be gravely to 
impair their ability to cover militant political views and 
activities. (A. 22-23, 27; see also A. 57-58, 60.) “Already, 
there are relatively few reporters who are trusted suf­
ficiently by radicals to report their activities. If these 
reporters are discredited one after another, the public’s 
right to know will be drastically infringed.” (A. 40.)

“Out-takes” are films shot in the course of producing a tele­
vision show but not actually shown as part of the televised show. 
(A. 28.)



29

“ As a result of the type of probing that the 
Government is currently undertaking, it is becoming 
increasingly difficult for reporters to gather any in­
formation whatsoever about the activities of the various 
so-called radical black and white organizations and, 
therefore, readers of The Times and other publications 
are not getting all the information required by them 
to make their own judgments on what is going on on 
various aspects of American life.” (A. 42.)

Walter Cronkite summed the matter up more broadly,®  ̂with 
characteristic precision:

“On the basis of . . . my experience as a news corres­
pondent, it is my opinion that compelling news cor­
respondents to testify before grand juries with respect 
to matters learned in the course of their Avork would 
largely destroy their utility as gatherers and analysts 
of news. Furthermore, once it is established and be­
lieved that news correspondents are to be utilized in 
grand jury investigations, they will be of precious little 
value to such investigations because they will no longer

The destructive impact of subpoenaing reporters is not lim­
ited to their ability to cover militant political matters, although it 
is peculiarly intense in that area. Indeed, as one newsman’s affi­
davit makes plain, a more insidious danger is that compulsory 
process issued in the course of governmental inAmstigations will re­
press sources of information within government concerning goÂ- 
ernmental abuses and wrongdoing:

“Particularly disturbing to me has been a marked increase, 
recently, in the reticence of my confidential sources in govern­
ment itself. These sources, some of whom have in the past 
been instrumental in exposing instances of governmental abuse 
or corruption, now tell me that, because of the increasingly 
widespread use of subpoenas to obtain names and other confi­
dential information from reporters, they are fearful of re­
prisals and loss of jobs if they are identified by their superiors 
as sources of information for newsmen.” (A. 45.)

(See also A. 43.)



30

have access to information that grand juries might 
want.” (A. 53.)

Nothing was presented by the Government in the District 
Court to disparage this substantial showing that Mr. Cald- 
well’s compelled appearance before the grand jury would 
have gravely damaging consequences on the p r e s s . T h e

The Government made three factual submissions in this re­
gard :

First, it showed that Mr. Caldwell had persistently declined to 
talk to F.B.I. agents prior to the service of the first grand jury 
subpoena upon him. (A. 79; see note 3, supra.) The point ap­
pears to be that if Mr. Caldwell had consented to an F.B.I. inter­
view, he might not have been subpoenaed. But a private F.B.I. 
interview would have had the same destructive effects upon Mr. 
Caldwell’s confidential associations with black militants as a secret 
grand jury appearance (see, for example A. 48-49), and, indeed, 
would have opened him to the considerable dangers of being sus­
pected as an F.B.I. spy (see note 23,, supra).

Second, the Government averred that it was not responsible for 
the widespread publicity attending the subpoena served on Mr. 
Caldwell; rather, that Mr. Caldwell and the news media brought 
the matter to public attention. (A. 72-73.) We are not sure of 
the relevance of this point. But, in any event, it is a half-truth. 
The subpoena served on Mr. Caldwell was one of a number of 
subpoenas served upon reporters during a period of a few months 
in violation—as Attorney General Mitchell later conceded—of a 
long-standing Justice Department policy of pre-subpoena nego­
tiations with the news media. Understandably, the media responded 
vigorously with public complaints and the Attorney General made 
the subject the matter of an extended press release on February 5, 
1970. The Attorney General’s statement, unfortunately, broadcast 
the impression that it was the Government’s practice to take un­
published information from news reporters by a process of “nego­
tiations” and “compromise agreeable to both parties” under the 
authority of subpoenas. (See II E. 9; and see note 31, supra.)

Third, the Government sought to show that the Caldwell sub­
poena, and related subpoenas, had not had the effect of preventing 
members of the Black Panther Party from making statements in 
the national news media following February 2, 1970. It cited, for 
example, a TV interview with Bobby Seale broadcast on March 30, 
1970, and stories quoting Panthers in Newsweek, February 23, 
1970, and in Time Magazine, April 6, 1970. (A. 75-76.) This



31

Government did undertake, by affidavits, to “set forth facts 
indicating the general nature of the grand jury’s investiga­
tion, [and] witness Earl Caldwell’s possession of informa­
tion relevant to this general inquiry.” (A. 62-63.) The 
“facts” set forth were as follows.

Responding to the request in Mr. Caldwell’s motion pa­
pers for a “clear definition of the subject of the ['grand 
jury] investigation” (II R. 22),»® the Government averred 
that:

“The public record, in connection with various motions 
based on these proceedings, reflects that these current

submission demonstrates considerable lack of understanding both 
of the Panthers and of the news media. No one doubts that, 
whether or not confidential associations between Panther sources 
and the few newsmen whom they trust are destroyed, the Panthers 
will continue to make public-relations statements for publication. 
These statements will be as useful in understanding the real nature 
of Panther views and activities as the press releases of Government 
officials, diplomats, etc., are in understanding the real workings of 
Government. What is threatened with destruction if Mr. Caldwell 
is compelled to respond to the grand jury subpoena in issue is not 
the public relations of the Black Panther Party or other militants. 
It is national public understanding of the Panthers and militants— 
insight into the realities behind their public-relations releases. See 
the passage from the Walter Cronkite affidavit (A. 52), quoted at 
pp. 20-21 supra. The Court of Appeals put the matter precisely 
when it observed that, to satisfy the constitutional command of a 
free press, “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 the one here in question. It is not 
enough that the public’s knowledge of groups such as the Black 
Panthers should be confined to their deliberate public pronounce­
ments or distant news accounts of their occasional dramatic forays 
into the public view.” (A. 118.)

Mr. Caldwell contended in the District Court, as here, that 
the Government could not compel his appearance before the grand 
jury, consistently with the First Amendment, without establishing, 
inter alia, the specific nature of the matter under inquiry by the 
jury, in order “to enable . . .  the courts . . .  to determine the point 
of proper balance between investigative need and the privacy pro­
tected by the First Amendment” (II K. 23.)



32

investigations include possible violations of 18 U.S.C. 
871, 1751, 2101, 231(a) (1), and 1341. Under its broad 
authority to investigate, possible violations of other 
statutes may be considered by the Glrand Juries, as may 
be deemed appropriate, depending on the information 
which becomes available to them.” (A. 70.)

Title 18 U.S.C. § 871 punishes the utterance of a threat to 
kill or harm the President, Vice-President or others in the 
line of Presidential succession. (App. A. p. 4a infra.) 18 
U.S.C. § 1751 punishes the killing or kidnapping, or at­
tempting or conspiring to kill or kidnap, or the assaulting 
of the President, Vice-President or others in line of succes­
sion. (App. A, pp. 6a-7a infra.) 18 U.S.C. § 2101 punishes 
interstate travel or the use of interstate facilities to incite, 
organize, encourage or participate in a riot, or to commit 
a violent act in furtherance of a riot, or to abet any of these 
acts. (App. A, pp. 8a-10a infra.) 18 U.S.C. § 231(a)(1) pun­
ishes teaching the use of firearms, explosive or techniques 
capable of causing death or injury with knowledge or notice 
that they will be unlawfully used in furthering a civil dis­
order affecting interstate commerce or a federal function. 
(App. A, pp. la-3a infra.) 18 U.S.C. § 1341 punishes mail 
fraud. (App. A, pp. 5a-6a infra.) Nowhere in the Govern­
ment’s papers is there a hint of the nature of the “other 
statutes” whose violations the grand jury may also come to 
investigate.®®

With regard to any specific doings, events or episodes 
under investigation, or factual reasons to suppose that

The Government’s Memorandum in Opposition to Motion to 
Quash Grand Jury Subpoenas (A. 62-63), and the annexed afB- 
davit of Francis L. Williamson, Esq. (A. 64-68), merely rehash 
the register of federal criminal statutes recited in the affidavit of 
Victor C. Woerheide, Esq., quoted in the indented passage in text 
above.



33

there was anything to investigate in connection with this 
broad and open-ended roster of federal criminal statutes, 
the Government essentially said nothing. It asserted that 
the “following matters in the public domain indicate to a 
limited extent the scope of the matters currently under 
investigation involving certain members of the Black Pan­
ther Party” (A. 64):

(1) On June 24, 1969, several Black Panther Party 
members were granted immunity by the District Court 
in connection with an asserted grand jury investigation 
of possible violations of 18 U.S.C. §§ 2101 and 231, 
supra. They refused to testify, were held in contempt, 
appealed, lost the appeals; and their cases were pend­
ing in this Court on petition for certiorari.
(2) On August 26, 1969, a motion was made to quash 
a grand jury subpoena duces tecum seeking records of 
the Huey P. Newton Fund in connection with an as­
serted investigation of possible violations of 18 IJ.S.C. 
§ 1341, supra. The subpoena was modified by agreement 
of counsel and a consent order entered by the District 
Court, September 9, 1969.

(3) On December 3,1969, the grand jury indicted Black 
Panther Party Chief of Staff David Hilliard for a viola­
tion of 18 U.S.C. § 871 allegedly committed on Novem­
ber 15, 1969.
(4) On February 5, 1970, the Government moved to 
compel compliance with grand jury subpoenas served 
on Black Panther leaders Raymond “Masai” Hewitt, 
John Seale and Sam Napier, requiring production of 
documents relating to publication of three numbers 
(November 22, 1969; December 27, 1969; and January 
3, 1970) of the Panther Party newspaper. The Blach 
Panther. On March 4, 1970, the Government moved the



34

District Court to grant immunity to grand jury wit­
nesses Sherrie Bursey and Brenda Joyce Presley. 
In connection with, these proceedings, the District Court 
was informed by the Government that threats to kill 
the President had been published in the three desig­
nated numbers of The Black Panther, and that the 
grand jury was investigating possible violations of 18 
D.S.C. <§> 1751, “as well as other matters.” (A. 64-65.)

It should be noted that all of these events refer to actions 
taken by the grand jury, or by Government counsel, and 
by no one else. No facts are asserted, except that it is as­
serted that the Government had previously made certain 
non-factual assertions.®'' With one exception, even the 
Government’s prior assertions fail to identify any specific 
act by anyone that might possibly he criminal. The excep­
tion is David Hilliard’s Moratorium Day speech, November 
15, 1969, in which he is asserted to have said; “We will kill 
Richard Nixon,” together with three reprintings of the 
Hilliard speech in issues of The Black Panther.^^ The 
Hilliard speech was made in Golden Gate Park in San 
Francisco before an audience of thousands and of national

The Government did not present the District Court with 
copies of any papers that might have been filed in the previous 
legal matters mentioned, and did not ask the District Court to 
judicially notice any such papers. By contrast, Mr. Caldwell did 
ask the District Court to take judicial notice of the immunity ap­
plication in the Bursey-Presley case (I Tr. 44) ; it was put into 
the record (A. 80-81; II R. 257-280) ; and it was expressly noticed 
by Judge Zirpoli in his final order on the motion to quash (A. 
94-95). This document, then, is the only concrete aspect of the 
legal proceedings mentioned by the Government that is in the 
record.

The November 22, December 27 and January 3 numbers of 
The Black Panther identified by the Government are described 
and reproduced in the Government’s Bursey-Presley immunity 
application, note 37 supra. They contain, respectively, a printing, 
a direct quotation, and a reprinting of the Hilliard speech of No­
vember 15, 1969. (II R. 260, 275-279.)



35

television cameras. (A. 67, 80'; II R. 253.) Hilliard had been 
indicted for it two months before the issuance of the first 
subpoena to Mr. Caldwell. (A. 65, 80.)*® As for the reprints 
in The Black Panther, the Government had copies of those, 
also, long before it subpoenaed Mr. Caldwell. (See note 38 
supra.)^°

The Government asserted, further, that the “following 
matters relate to [the] issuance of a subpoena for the 
testimony of Earl Caldwell” (A. 65):

(1) lm .N ew  York Times article published on Decem­
ber 14, 1969, Mr. Caldwell attributed to David Hilliard

The Hilliard indictment was, to say the least, dubious under 
Watts V. United States, 394 U.S. 705 (1969). And, in any event, 
the Government has never asserted a purpose to use the grand 
.jury proceedings in which Mr. Caldwell was subpoenaed for the 
purpose of procuring evidence against the already-indicted Mr. 
Hilliard. Such a purpose would be plainly illegal. In re National 
Window Glass Workers, 287 Fed. 219 (N.D. Ohio 1922) ; United 
States v. Dardi, 330 F.2d 316, 336 (2d Cir. 1964) (dictum).

The Government also attached to the affidavit of PT'ancis L. 
Williamson, Esq., an unsworn Appendix purporting to recite 
various armed assaults on policemen and other terrorist activities 
by Black Panthers in California, Wisconsin, New York and New 
Jersey. (A. 69.) Counsel for Mr. Caldweil pointed out in the 
District Court that, because it was unsworn hearsay, this Appendix 
was of no “probative value,” and moved that it be struck. Judge 
Zirpoli replied that “motions of that character [were not] 
necessary under the circumstances of this case.” (A. 90.) We 
think it obvious that the Appendix was, as it should have been, 
disregarded by Judge Zirpoli, sitting as trier of the facts in a 
non-jury matter.

The Government’s descriptions of Black Panther misdeeds are 
not particularly reliable: for example, the Government’s char­
acterization of the Chicago “shoot-out” (II R. 259), which, a fed­
eral grand jury found, involved 82 shots by police (two fatal) 
and possibly 1 shot by the Panthers. Unless made under oath by 
someone, the statements in the Appendix are quite plainly worth­
less. In any event, (1) they disclose no evidence of any federal 
crime; and (2) it is not and has never been asserted by the Gov­
ernment that Mr. Caldwell could possibly know anything about 
any of the episodes described in the Appendix.



36

the statement that the Black Panther Party “advo­
cate [d] the very direct overthrow of the Government 
by way of force and violence [and by] . . . picking np 
guns . . . [and] armed struggle,” and went on to note 
that “[in] their role as the vanguard in a revolutionary 
struggle the Panthers have picked up guns.” (A. 62, 
65-66.) This statement “coming after the threat of the 
Panthers to kill President Nixon, made in the November 
22, 1969, issue of The Black Panther, and prior to the 
same threat made in the December 27, 1969 and the 
January 3, 1970 issues, appeared relevant to an inquiry 
or investigation of a possible violation in connection 
with the publication of these statements and related 
activities of the responsible individuals.” (A. 66.)
(2) Mr. Caldwell’s New York Times articles of June 
15, July 20, July 22, and July 27, 1969 quoted Panther 
Party Chairman Bobby Seale and Chief of Staff David 
Hilliard, and recounted Mr. Caldwell’s observations 
and reflections on the Panthers.^i These included ob­
servations that the Panthers “had been transformed 
from a street gang type of organization to an organiza­
tion based on an ideology,” and that the Panthers now 
talk in terms of such concepts as “class struggle.” 
(A. 66.)

The affidavit of Francis L. Williamson, Esq., one of the coun­
sel for the Government, asserts: “I was informed of the substance 
of previous [i.e., previous to December 14, 1969] articles written 
by [Mr. Caldwell] . . . , particularly articles in The New York 
Times published on June 15, July 20, July 22, and July 27, 1969.” 
(A. 66.) Mr. Williamson does not say when he was informed of 
these articles, particularly whether or not before the issuance of 
the February 2 subpoena to Mr. Caldwell. Compare the undenied 
admission of Government counsel, Victor C. Woerheide, Esq., to 
Mr. Caldwell’s counsel that he, Mr. Woerheide, had caused the 
issuance of the February 2 subpoena; and that, before it issued, 
he had read only Mr. Caldwell’s December 14, 1969 Times article’ 
(A. 9-10.)



37

(3) After David Hilliard’s November 15 speech, “a 
number of instances of similar statements, made in 
various parts of the country, were reported by in­
vestigative agencies.” “In most instances,” these state­
ments were attributed to reported Panther Party mem­
bers, or persons reportedly “linked to it or associated 
with it in some manner.” The statements, in the con­
text of having guns, attacking the system, the estab­
lishment, etc., and coupled with obscene invective, in­
cluded “Nixon must die,” etc. They were sometimes 
made “to small groups of sympathizers,” sometimes 
made by “full use of coverage by the press and the 
facilities of commercial and educational radio and 
television to disseminate their messages to a wide au­
dience.” (A. 66-67.)
(4) On December 3, 1969, a San Francisco disk jockey 
who had written articles for The Black Panther, sug­
gested in a program dedicated to David Hilliard after 
Hilliard’s indictment, that listeners could support free 
speech by wiring the President a fifteen-word telegram 
quoting the allegedly threatening passage in Hilliard’s 
Moratorium Day speech. (A. 67.)
(5) On January 5, 1970, Eldridge Cleaver, Black Pan­
ther Party Minister of Information was interviewed 
over CBS. In the interview, he announced plans to 
return to the United States from his exile in Africa, to 
go underground, and to lead a “war of liberation from 
the fascist, imperialist social order in the United 
States,” which would include taking off the heads of 
Senator McClellan and President Nixon. Mr. Cleaver 
added: “This is not rhetoric.” (A. 67-68.)

This assortment of “matters” bears scrutiny. The last 
three relate to statements by a number of Black Panthers,



38

or persons reportedly associated with the Black Panthers 
“in some manner,” made in various parts of the United 
States and Africa. The last, by Eldridge Cleaver, was made 
after the date of Earl Caldwell’s latest recorded New Yorh 
Times article or known contact with any Black Panther 
source. These statements were broadcast by radio or TV, 
except that some statements were made to “small groups” 
which apparently included Government agents or electronic 
monitors but are not asserted to have included Mr. Caldwell. 
It is an understatement to say that none of these matters 
relates to Mr. Caldwell at all, in the sense that he could 
possibly have knowledge of anything to do with them.

Items (1) and (2) do relate to Mr. Caldwell. Number (2) 
asserts that Mr. Caldwell has interviewed Black Panther 
Party members and has reported upon views and activities 
of the Panthers that have no conceivable connection with 
any possible federal criminal offense. Concerning number 
(1), we quote the exact text of the December 14 New York 
Times article involved:

“ ‘We are special,’ Mr. [David] Hilliard said re­
cently. ‘We advocate the very direct overthrow of the 
Government by way of force and violence. By picking 
up guns and moving against it because we recognize it 
as being oppressive and in recognizing that we know 
that the only solution to it is armed struggle.’

“In their role as the vanguard in a revolutionary 
struggle, the Panthers have picked up guns.

“Last week two of their leaders were killed during 
the police raid on one of their offices in Chicago. And in 
Los Angeles a few days earlier, three officers and three 
Panthers were wounded in a similar shooting incident. 
In these and in some other raids, the police have found 
caches of weapons, including high-powered rifles ” 
(A. 13.)



39

The quotation from Hilliard manifestly has nothing to 
do with Presidential assassination, threats against the 
President or mail fraud, within 18 U.S.C. §§ 1751, 871, and 
1341. It has only the remotest and most speculative con­
nection with interstate travel, etc., to riot, or civil disorder, 
within 18 U.S.C. §§ 2101 and 231(a)(1). If it is relevant to 
any possible federal criminal violation, that is violation of 
the Smith Act, 18 U.S.C. § 2385. But, in light of the con­
struction given the Smith Act in Yates v. United States, 
354 IJ.S. 298 (1957), and Noto v. United States, 367 U.S. 
290 (1961), the relevancy of the Hilliard statement to such 
a violation is tenuous at best: it is surely no accident that 
the Government never mentioned the Smith Act in the 
District Court. And, as Mr. Caldwell showed by Government 
documents filed in another aspect of the same grand jury 
investigation, the Government already had in its possession, 
before subpoenaing him, reams of Black Panther literature 
making statements equivalent to Hilliard’s.̂ ^

The same thing is true of Mr. Caldwell’s own observation 
—on the basis of the Chicago and Los Angeles Panther 
office raids (of which it is not suggested he has any first­
hand knowledge)—that the Panthers “have picked up guns.”

 ̂ See the exhibits to the Memorandum in Support of Applica­
tion for Immunity for Sherrie Bursey and Brenda Joyce Presley 
(II R. 262-68, 270-71, 275-79). The statements ineluide, for ex­
ample : “The Black Panther Party is a vanguard group leading 
the revolutionary struggle, playing a part in it, because this is 
world revolution: all colonized people are now resisting.” “We 
believe that the Black communities of America must rise up as 
one man to halt the progression of a trend that leads inevitably to 
their total destruction.” “When the people move for liberation, 
they must have the basic tool of liberation—the gun.” “There is 
a world of difference between thirty million unarmed, submissive 
Black people and thirty million Black people armed with freedom 
and defense guns and the strategic methods of liberation.” “We 
were forced to build America, and if forced to, we will tear it 
down. The immediate result of this destruction will be suffering 
and bloodshed. But the end result will be perpetual peace for all 
mankind.”



40

This is virtually a paraphrase of the Government’s own 
assertions—based on the same Chicago and Los Angeles 
episodes—in a paper filed in the District Court before Mr. 
Caldwell was subpoenaed.^^

We summarize the Government’s showing in the District 
Court: (1) The Government failed to show the slightest 
reason to believe that the Black Panthers might have com­
mitted any federal crime, except for the Hilliard Mora­
torium Day speech and its reprintings in The Black Panther. 
(2) Hilliard had already been indicted for the Moratorium 
Day speech; and the Government neither did nor legally 
could assert that the purpose of the present grand jury 
investigation was to gather evidence in support of that 
charge.“ (3) The Government did not, in any event, show 
any reason to believe that Mr. Caldwell might know any­
thing at all about the Hilliard Moratorium Day Speech or 
its Black Panther reprintings. '̂^ (4) It did not show that he 
had any reason to know anything about any federal crime 
committed by anybody. (5) What it did show was that he 
had interviewed Black Panther Party members concerning 
a range of their non-criminal views and activities, including 
the Panthers’ habitual revolutionary pronouncements—of 
which the Government had examples a-plenty in hand with­
out resort to Mr. Caldwell. It is unsurprising that Judge 
Zirpoli found, and the Court of Appeals affirmed:

“Black Panther officials have specifically urged their members 
to acquire and learn the use of firearms, explosives and incendiary 
devices. That they have collected such weapons is evidenced by 
recent shootouts of BPP groups with law enforcement officials 
[referring to Chicago and Los Angeles].” Memorandum in Sup­
port of Application for Immunity for Sherrie Bursey and Brenda 
Joyce Presley (A. 80.)

See note 39 supra.
Mr. Caldwell did write an article reporting the fact of Hil­

liard’s indictment. (II R. 253.)



41

“(6) That the Government has shown no compelling 
and overriding national interest in requiring Mr. Cald­
well to give testimony before the grand jury that would 
invade and jeopardize his confidential relationships 
with members of the Black Panther Party.” (A. 96; see 
also A. 105, 121.)

2. T h e  F o u rth  A m e n d m e n t Issue

Mr. Caldwell’s initial motion to quash the grand jury 
subpoenas of February 2 and March 16 asserted circum­
stances supporting the inference that these subpoenas were 
based upon leads obtained from unconstitutional electronic 
surveillance of his interviews with Black Panther Party 
members.^® Accordingly, he asked for an Alderman hear- 
ing‘‘’ into the fact, circumstances and legality of surveillance, 
and its relation to the subpoenas.^* In response, the Gov­
ernment did not deny surveillance or its illegality, but stood 
solely on the claim that Carter v. United States, 417 P.2d

Government counsel admitted to Mr. Caldwell’s counsel that, 
when he caused the subpoena to be issued for Mr. Caldwell, he had 
only read a single one of Mr. Caldwell’s New York Times articles. 
That article adverted to an interview between Mr. Caldwell and 
Pavid Hilliard, but none between Mr. Caldwell and Raymond 
“Masai” Hewitt. Government counsel asserted that “he did ‘know 
that Mr. Caldwell interviewed Masai Hewitt,’ although he did 
‘not know whether any part of this interview was ever published 
b.v Caldwell.’ ” (A. 9-10.) And the duces tecum rider to the Feb­
ruary 2 subpoena sought notes, records, tapes, etc., of an interview 
with Hewitt. (A. 20.)

It was pointed out to the District Court that Attorney General 
Mitchell had determined that the Black Panther Party is a “threat 
to national security”—a determination whose sole purpose is to 
authorize electronic surveillance. It was also pointed out that 
P.B.I. Director J. Edgar Hoover had testified before a House Ap­
propriations subcommittee that the F.B.I. was intensifying its 
efforts to penetrate the Panthers by informants and “sources” (an 
F.B.I. word for electronic eavesdropping devices). (II R. 31.)

’̂’Alderman v. United States, 394 U.S. 165 (1969).
(II R. 31-32.) See note 6 supra.



42

384 (9th Cir. 1969), deprived Mr. Caldwell of standing to 
assert a Fourth Amendment claim. (II R. 95-96.) Judge 
Zirpoli agreed with the Glovernment and rejected the elec­
tronic surveillance contention on the sole ground that it 
was, “upon the facts before the Court, one that movants do 
not at this posture of the grand jury investigation have 
standing to raise. . . . ” (A. 93.) The claim was renewed and 
again rejected, upon the same grounds, on the motion to 
quash the May 22 subpoena.^” At Mr. Caldw^elFs contempt 
hearing for failing to obey the May 22 subpoena, he again 
raised the Fourth Amendment claim and again asked for an 
Alderman hearing, which the District Court again refused 
upon the same grounds.®" The Court of Appeals found it 
unnecessary to reach the Fourth Amendment “standing” 
question on the appeal, and expressly reserved decision on 
that issue. (A. 127.)

The motion asserted that the May 22 subpoena “was issued 
upon the same basis” as the earlier, March 16 subpoena (A. 98), 
and asked that it be quashed upon the same grounds (ibid.). The 
motion was denied “pursuant to the Court’s opinion of April 6, 
1970” (A. 105), Avhich rejects the Fourth Amendment claim on 
standing grounds as recited in the text supra.

A. 108-109. (At A. 109, the court reporter misunderstood 
a word, as the context makes plain. The Court and counsel are 
talking about the Fourth Amendment contention being “not ripe” 
where the reporter has transcribed “not right.”)



43

Summary of Argument

The only issue presented to the Court of Appeals or to 
this Court is whether Mr. Caldwell may be compelled to 
appear before the grand jury for the purpose of examina­
tion concerning matters not protected by the District Court’s 
order. The Court of Appeals found—and it is uncontested 
on this record—that Mr. Caldwell has no information un­
protected by the District Court’s order that would be of 
any use to the grand jury. The Court of Appeals there­
fore properly forbade the compulsion of his appearance as 
a futile and oppressive exercise that would inflict wanton 
injury upon First Amendment interests with “no benefit to 
the Grand Jury” (A. 125).

II
The Government’s persistence in compelling Mr. Cald­

well’s testimony in disregard of its Guidelines for Sub­
poenas to the News Media highlights the importance of the 
First Amendment protection given him by the Court of 
Appeals, and provides an independent basis for affirmance 
of its judgment.

I l l
A cardinal aim of the First Amendment is to assure the 

public dissemination of information necessary to educate 
a self-governing people concerning the significant issues of 
the times. The Court of Appeals properly found as a fact 
that this interest is vitally impaired by the compulsion of 
newsmen’s testimony in a manner which, by jeopardizing 
their confidential relations with their news sources, chokes 
off this information at the root. It properly held as a mat-



44

ter of law that this sort of drastic harm to First Amend­
ment interests requires some accommodation of the com­
peting interests of grand jury investigation.

The balance struck by the Court of Appeals between 
these interests forbids the compulsion of a newsman’s testi­
mony concerning confidential information in the absence 
of a compelling showing of investigative need. That rule is 
amply supported by this Court’s decisions in the analogous 
case of legislative investigations, although it is not neces­
sary to decide this case, where the information sought by 
the Government from Mr. Caldwell is (in the words of its 
Guidelines) “peripheral, non-essential [and] . . . specula­
tive.” Confidential relations indispensable to the exercise 
of First Amendment freedoms may not be invaded in quest 
of information of that character.

The Court of Appeals properly concluded that the secret 
nature of grand jury interrogation seriously undercut the 
protection sought to be afforded to Mr. Caldwell’s confiden­
tial relations by the District Court’s protective order, and 
therefore that the order left First Amendment interests in 
jeopardy. Since Mr. Caldwell uncontestedly possesses no 
information which would be of any use to the grand jury 
and is not protected by the District Court’s order, the Court 
of Appeals properly held that this jeopardy was indefensi­
ble and declined to compel Mr. Caldwell’s appearance.

IV

A reporter whose career is threatened with destruction 
by his compelled appearance before a federal grand jury 
surely has standing to complain that the grand jury sub­
poena is based upon leads obtained by electronic surveil­
lance upon his private conversations in violation of the 
Fourth Amendment.



45

ARGUMENT

I.

Introduction; The Government’s Brief

We recognize that a respondent’s brief is ordinarily most 
helpful to the Court when it replies to the arguments made 
in the petitioner’s brief within the same general frame of 
reference. We are unable to do so in this case, because our 
view of the issues differs completely from that of the Gov­
ernment. So as to relate our own argument to the Govern­
ment’s, we devote this Introduction to an analysis of its 
brief.

At the outset we should say that we attach more signif­
icance than does the Government both to the specific facts 
of record in the case and to the precise holding of the Court 
of Appeals now under review. We have summarized the 
record in detail in our Statement of the Case; and we think 
it wiU be useful here to recapitulate briefly the decision of 
the Court of Appeals before proceeding to examine how the 
Government treats it.

The Court of Appeals approached the ease by asking 
three basic questions. The first was whether a subpoena 
issued to compel the testimony of a newspaper reporter re­
garding information that he had acquired through profes­
sional relationships of trust and confidence touched upon 
First Amendment concerns so as to require some judicial 
accommodation of the subpoena power and the interests of 
freedom of the press. It answered this question in the af­
firmative. It identified the First Amendment interest as 
the dissemination to the reading public of reliable and bal­
anced information concerning events of political significance, 
and particularly the public provision of “a wide range of



46

information about tbe nature of protest and heterodoxy.” 
(A. 118.) It identified the danger posed by newsmen’s sub­
poenas to this First Amendment interest as the drying up 
of such information at its source, as the result of fears by 
newsmen’s informants that their confidential communica­
tions would be disclosed. (A. 116-118.) It inquired whether 
this danger was an actual and serious one, and concluded 
factually that it was; and it therefore affirmed the finding 
of the District Court that the “compelled disclosure of in­
formation received by a journalist within the scope of such 
confidential relationships jeopardizes those relationships 
and thereby impairs the journalist’s ability to gather, an­
alyze, and publish the news.” (A. 118.)

The Court of Appeals’ second question was whether, in 
the light of this factual conclusion, the First Amendment 
imposed some restriction upon the compulsion of newsmen’s 
testimony by subpoena. The Court properly recognized, in 
other words, that the fact that “First Amendment freedoms 
are here in jeopardy” (A. 118) was the beginning, not the 
end, of First Amendment analysis. Taking its cue from 
analogous “Supreme Court decisions regarding conflicts 
between First Amendment interests and legislative investi­
gatory needs” (A. 119), the Court reasoned that some bal­
ance between the conflicting interests had to be struck. 
(Ibid.) It then carefully examined the conflicting interests.

It found that the threat of subpoena-compelled disclosures 
of newsmen’s confidence would wreak serious damage upon 
the news media’s dissemination of information to the pub­
lic, both because of the source-stifling effects of “govern­
mental interference [with the media’s] . . . investigative 
processes” (A. 120) and because “it is not unreasonable to 
expect journalists everywhere to temper their reporting 
so as to reduce the probability that they will be required to 
submit to interrogation” {ibid.). The Court recognized, on



47

the other hand, that any restriction of the subpoena power 
would deprive the grand jury of the assistance of reporters 
as witnesses (A. 119), but pointed out the “paradox of the 
Government’s position that, if groups like the Black Pan­
thers cease taking reporters like appellant into their confi­
dence, these journalists will, in the future, be unable to 
serve a public function either as news gatherers or as prose­
cution witnesses.” (A. 120 n. 6.) Weighing these competing 
interests, the Court held that the First Amendment did not 
altogether forbid the compulsion of newsmen’s testimony, 
even as to confidential communications; but that it did re­
quire the Government to show a “compelling and overrid­
ing* national interest” before it could compel “testimony of 
the sort specified.” (A. 121.) It therefore approved the 
District Court’s protective order forbidding the grand jury 
to inquire into confidential associations, sources or informa­
tion maintained by Mr. Caldwell as a professional journalist, 
in the absence of such a governmental showing. (Ibid.)

The Court’s third and final question was whether this de­
gree of protection was adequate upon the present record. 
(A. 121-122.) In posing this question, it should be noted 
that the Court did not refer to any other or different First 
Amendment interests than those which it had previously 
identified: that is, impairment of the dissemination of in­
formation resulting from the drying up of confidential 
sources and from newsmen’s self-censorship to avoid inter­
rogations which would threaten the drying up of confidential 
sources. The Court recognized that these dangers were 
somewhat mitigated by the District Court’s protective order; 
but it also recognized that they were not obviated by it, since 
the assurance given by the protective order was substan­
tially undercut by the nature of secret inquiry behind the 
closed doors of the grand jury room, where “ [mjilitant 
groups might very understandably fear that, under the 
pressure of examination before a Grand Jury, the witness



48

may fail to protect their confidences with quite the same 
sure judgment he invokes in the normal course of his pro­
fessional work” (A. 123), and where the “secrecy that sur­
rounds Grand Jury testimony necessarily introduces un­
certainty in the minds of those who fear a betrayal of their 
confidences” {ihid.). So, there remained “First Amendment 
freedoms at stake.” (A. 124.) And, admitting that the Dis­
trict Court’s protective order diminished the dangers to 
those freedoms, the Court of Appeals perceived that it 
also diminished the Government’s interest in compelling 
Mr. Caldwell’s testimony. (A. 125.) Since, on this record 
it was undisputed that Mr. Caldwell had nothing to tell the 
grand jury other than confidential or previously published 
information, his “response to the subpoena would be a bar­
ren performance^—one of no benefit to the Grand Jury.” 
{Ihid.) Reasoning that “ [t]o destroy appellant’s capacity 
as news gatherer for such a return hardly makes sense” 
{ihid.), the Court of Appeals declined to permit the enforce­
ment of federal grand jury process that would entail ir­
reparable damage to First Amendment concerns for no in­
vestigative gain. {Ihid.)

Let us see now how the Government’s brief deals with 
the same case.

1. The Government does not speak at all to the first 
question addressed by the Court of Appeals; whether any 
First Amendment concerns are jeopardized or implicated 
by subpoenas requiring newsmen to testify concerning- in­
formation received in the course of confidential relation­
ships. The Attorney General’s Guidelines for Subpoenas 
to the News Media recognize “that compulsory process in 
some circumstances may have a limiting effect on the 
exercise of First Amendment rights” (App. B, p. lb infra), 
but the Government’s brief maintains a studied silence 
on that issue. It begins analysis by adverting to “a news



49

reporter’s claim of privilege” (Br. 11), as though that 
were some sort of disembodied claim arising from the 
isolable assertion of “a constitutionally protected right of 
the press to gather news” (Br. 15; Government’s empha­
sis), wholly unrelated to the basic First Amendment inter­
est of the press to publish news. It then declines to dis­
cuss even this truncated issue in this case (Br. 11-12), 
saying that it will “give the Court our views on those 
questions in a brief amicus curiae” in Branshurg v. Hayes, 
O.T. 1971 No. 70-85, and Matter of Pappas, O.T. 1971, No. 
70-94. (Br. 11 n. 8.) It thereby dismisses all basic con­
sideration of the First Amendment here, apparently on 
the vieŵ  that this Court could not rationally see the issues 
in the present case as the Court of Appeals saw them— 
that is, as involving an appraisal of the practical etfects 
of newsmen’s subpoenas upon specific and identified First 
Amendment concerns. Coincidentally, this approach per­
mits the Government to challenge the Court of Appeals’ 
conclusions upon other records than the one which the 
Court of Appeals had before i t ; and it disables respondent 
from replying to the Government’s challenge, since its 
amicus brief in Branzhurg and Pappas will apparently be 
filed on or about the due date of respondent’s brief in 
Caldwell.

2. Its approach does not preclude the Government from 
observing “preliminarily” (Br. 12) several objections to 
the Court of Appeals’ (and the District Court’s) protec­
tion of a newsman’s confidential relationships (Br. 12-15)— 
without, however, frontally addressing the reasoning or 
rightness of either court below. Having thus deprived the 
assumption of solidity, the Government next assumes argu­
endo that “the First Amendment freedom of the press 
covers newsgathering in general and authorizes newsmen 
to refuse to disclose to grand juries confidential associa-



50

tions and private commmiications in particular.” (Br. 16.) 
But it reserves the right to discard that assumption “in 
later proceedings” in this case (Br. 12 n. 9), and apparently 
to undercut it collaterally in Branshurg and Pappas.

3. The assumption thus provisionally made is immedi­
ately drained of significance as the Government proceeds 
to examine “The Nature of the Claimed Privilege.” (Br. 
16.) As described at Br. 16-21, it bears no relationship to 
the privilege we claim, or the one which the Court of 
Appeals found in the First Amendment. The Government 
first suggests that the protection which newsmen ought to 
feel they need ought to be focused upon non-disclosure of 
the identity of their confidential sources. (Br. 16-17.) 
But it immediately recognizes that “The media, however, 
generally seem to view the claimed professional privilege 
in a broader light” (Br. 17)—as requiring “protection 
against a forced betrayal of established confidences” (Br. 
18). The Government fails to analyze or explain how the 
protection of “confidences” is “broader” or even different, 
for constitutional purposes, than the protection of con­
fidential “sources” ; this section of its brief, like the one 
described in the preceding paragraph, apparently dis­
parages the concessions which it makes in order to avoid 
both the conclusions of the courts below and the obliga­
tion of demonstrating that those conclusions are wrong. 
“Setting to one side the merits of this constitutional argu­
ment” (Br. 18), the Government next suggests that all 
but two of the reporters who filed affidavits in the District 
Court “defined the outer perimeters [of needed First 
Amendment protection] in terms of a professional privi­
lege to withhold, in addition to confidential sources, no 
more than the reporter’s private notes or files, and other 
information of a confidential nature.” (Br. 18-19; see Br. 
19"21.) This suggestion is unfair upon two counts.



51

First, it implies that Mr. Caldwell is seeking, and that 
the Court of Appeals gave him, protection of some interest 
stretching beyond “confidential” matters.®  ̂ Here the Gov­
ernment capitalizes upon its failure to discuss the First 
Amendment interests considered by the Court of Appeals 
which identify why reporters need protection of their con­
fidences. That is not because of some quixotic urge to keep 
a personal pledge or to respect the sanctity of one par­
ticular piece of embargoed information. It is because the 
ability generally to give such pledges, to embargo informa­
tion, to assure the confidentiality of communications, is 
necessary to enable journalists to get the news from per­
sons who do not want what they say made public. Mr. 
Caldwell contended, and both courts below found, that 
the journalist is equally disabled, his sources equally clam 
up, whether any particular confidence is actually disclosed 
or whether the assurance of non-disclosure that is the 
basis of the confidential relationship is jeopardized. The 
sole scope of the protection sought by Mr. Caldwell and 
given him by the Court of Appeals relates precisely to 
“confidential information” : he was relieved from the ob­
ligation to appear before the grand jury because that ap­
pearance unnecessarily and unduly jeopardized his ability 
to obtain “confidential information.”

Second, the notion that the expressed concern for their 
confidential relations on the part of the many experienced

Compare Br. 12: “This Court is thus called upon here to de­
cide only whether a reporter can refuse to appear and testify be­
fore a grand jury about matters concededly non-eonfidential in 
nature on the ground that his appearance alone could jeopardize 
confidential relationships . . . . ” We are not told what “conced­
edly non-eonfidential” information is in question, although Mr. 
Caldwell has always asserted—and the Court of Appeals found it 
factually undisputed—that he has no “non-eonfidential” informa­
tion excepting what is already available to the grand jury in the 
pages of the Times.



52

journalists who filed affidavits below “defined the outer 
perimeters” of their need for First Amendment protection 
in terms of a privilege to withhold only the contents of 
specific confidential communications has been manufac­
tured by the Government from whole cloth. What the jour­
nalists averred in fact upon this subject is set out in detail 
at pp. 26-30 supra. Of course, their core concern was for 
the preservation of their indispensable confidential rela­
tions. That is also Mr. Caldwell’s concern, and that of the 
Court of Appeals. But to suggest that the “outer perim­
eters” of necessary protection of confidential relations were 
“defined” by the reporters as limited to a privilege of non­
disclosure of the contents of particular confidential com­
munications simply misstates “[w]hat emerges from a full 
reading of the affidavits of [the] . . . reporters.” (Br. 20.)®̂

®^The Government’s treatment of the affidavits is remarkable. 
For example, it says that “Reporters Johnson (A. 24-25), Kifner 
(A. 26-27), Knight (A. 28-29), Proffitt (A. 30-31), and Turner 
(A. 34), in affidavits filed before the issuance of the subpoena that 
is the subject of the instant litigation . . ., objected principally 
to the earlier subpoena dtices tecum issued to respondent, calling 
for production of notes, files and other documents; they felt this 
material should be protected and that an appearance before a grand 
jury in response to a subpoena of that nature would destroy confi­
dential relationships. Reporter Noble (A. 37-38) expressed the 
same view.” (Br. 20-21 n. 22; Government’s emphasis.) In fact, of 
these six reporters, only Knight, and possibly Proffitt, advert at’ all 
to the d l̂ces tecum aspect of the first Caldwell subpoena: Knight 
mentions in passing that Charles Garry had mentioned it to him; 
and Proffitt’s reference is so oblique that he probably has some­
thing else entirely in mind. The reporters’ unconcern for the duces 
tecum aspect is hardly surprising, since the duces tecum rider was 
explicitly limited to notes and tapes of statements made by Black 
Panther spokesmen “for publication” (A. 20), and hence was not 
the most serious threat to the confidential communications with 
which—the Government says—these reporters were exclusively con­
cerned. To the contrary, the ad testificandum aspect of the sub­
poena, which was not similarly limited, was a far greater danger; 
and it was “principally” that danger of which Mr. Caldwell and 
the other reporters complained.



53

What does emerge is that news sources, and particularly 
militant political news sources, dry up out of fear that 
compulsion of newsmen’s testimony by subpoenas renders 
confidential communications with reporters unsafe,®* and 
hence that there is a solid basis for the conclusion that 
“any appearance by a black journalist behind closed doors, 
such as the appearance that Earl Caldwell . . . has been 
subpoenaed to make before a Grand Jury, would severly 
[sic] damage his credibility in the black community . . .
The Government here appears to be implying as a factual 
matter what it elsewhere explicitly states: that “Not even 
the news media seek greater protection than” that pro­
vided to Earl Caldwell by the District Court’s order. (Br. 
33.) As a representation of the testimony of the newsmen in 
this record, that is inaccurate; as a statement of the posi­
tion of the media in any other sense, we assume that it 
will be laid to rest by the various amici curiae briefs in 
this Court.

4. Having repudiated or ignored the analytic framework 
within which the Court of Appeals undertook to ask about 
the “chilling effect” of newsmen’s subpoenas—a context in 
which the metaphor of “chilling effect” was used to de­
scribe the impact of such subpoenas upon jourialists’ abil­
ity to write and disseminate the news (A. 116-117), the 
Government next analyzes the concept of “chilling effect” 
as an abstract doctrine operating in areas unrelated to 
this case. (Br. 22-27). It correctly notes that other kinds

E.g., A. 22-23, 26-27, 30-31, 32-33, 39-40, 41-42, 43, 44-45, 53 
54, 55, 60, 61.

Thomas Johnson, at A. 25. See also—in addition to the aver­
ments of Bari Caldwell (A. 19) and Gerald Fraser (A. 22-23) 
mentioned by the Government at Br. 18—John Kifner, at A. 27; 
Gilbert Noble, at A. 37-38; Martin Arnold, at A. 42; Walter 
Cronkite, at A. 53.



54

of concerns about other kinds of chilling effects have been 
articulated primarily in connection with issues of stand­
ing, equity in injunctive actions, federal-state comity, and 
vagueness and overbreadth. From this analysis it con­
cludes that “Unconstitutional vagueness or overbreadth is 
a prerequisite to judicial intervention under the ‘chilling 
effect’ doctrine.” (Br. 27.) The Government has thus done 
to this Court’s decisions essentially what it has done to 
the newsmen’s affidavits below: converted exemplifications 
of a concern into supposed “outer perimeters” of the con­
cern—and with the extraordinary result that the tail of the 
overbreadth doctrine is made to wag the dog of the First 
Amendment. The conclusion follows that because the sub­
poena to Mr. Caldwell, as delimited by the District Court’s 
protective order, is not “overbroad,” it does not violate 
the First Amendment. (Br. 27-29.)

5. Since it comes this route by way of rebuttal to an 
argument which was not made by either Mr. Caldwell or 
the Court of Appeals, the Government leaves unclear in 
what sense the subpoena is not “overbroad.” But it takes 
solace in the “precision of the modifying order” (Br. 30) 
in two regards. First, it asserts that, by force of the order, 
any danger that Mr. Caldwell’s grand jury interrogation 
will adversely affect his confidential relations is the result 
of Movement paranoia and is “too incidental to warrant ju­
dicial intervention” (Br. 29.) (See Br. 28-29, 38-42.) This 
is the only point of the Government’s argument which 
touches at all upon the reasoning of the Court of Appeals, 
and we shall discuss it infra.^^ Second, it says that, by 
force of the order, the “element” characterizing this Court’s

The point, however, does not seem to us to have anything to do 
with “judicial intervention”—a concept that is appropriate to 
cases, for example, of federal injunction of state criminal proceed­
ings, hut is out of place where a federal court is enforcing the 
compulsory process of its own grand jury by contempt proceedings.



55

decisions which forbid subpoena-compelled testimony that 
unduly damages associational rights implied from the First 
Amendment {e.g., N.A.A.C.P. v. Alabama ex rel. Patterson, 
357 U.S. 449 (1958))—i.e., “compelled disclosure of par­
ticularized constitutionally protected associations” (Br.
32) —is “missing here” {ibid.). This is said to be so be­
cause the protective order affords “explicit protection” to 
“[ajssociational ties.” {Ibid.) The Government overlooks 
that “associational ties” of the sort protected by Patter­
son and cognate cases are not themselves “particularized” 
or explicitly guaranteed First Amendment rights; that 
their development as First Amendment rights by this 
Court was based upon the realistic assessment of their 
indispensability as preconditions of the effective exercise 
of such explicit First Amendment rights as freedom of 
speech; and that the very issue in this case—resolved 
factually in Mr. Caldwell’s favor by the Court of Appeals'— 
is whether his compelled appearance before the grand jury 
will unduly damage the different sorts of associational ties 
that are equally indispensable to effective exercise of free­
dom of the press. The Government does not discuss that 
issue here; but, after once again finding in the Patterson 
line of cases a doctrinal outer perimeter where none ex­
ists, it incorrectly repeats that the news media seek no 
greater protection than Judge Zirpoli’s order affords (Br.
33) , and infers from this incorrect premise®® the conclusion

®®_At this point in its argument, the Government translates its 
earlier statement that experienced journalists “defined the outer 
perimeters in terms of a professional privilege to withhold, in addi­
tion to confidential sources, no more than the reporter’s notes or 
files, and other information of a confidential nature” (Br. 19) into 
an assertion that “virtually all those journalists who spoke to the 
question of the proper scope of a reporter’s privilege in the district 
court seem to agree that compelled disclosure of nothing more than 
matters ‘for publication or public disclosure’ . . . would not 
jeopardize vital professional relationships.” (Br. 33.) We have 
demonstrated earlier that the first form of this statement is incor­
rect. The second is grossly so.



56

that there “thus seems little basis for the argument that 
subpoenas drawn along the narrow lines of the one now 
before the Court will induce ‘self-censorship’ among re­
porters.” (Br. 33 n. 36.)

6. The Government next comes to the matter of the 
secrecy of grand jury proceedings, which the Court of 
Appeals thought factually relevant to the impact of Mr. 
Caldwell’s closed-door interrogation upon his confidential 
relationships. Having just asserted, without consideration 
of the factor of secrecy, that any such impact is “too inci­
dental” for judicial attention (Br. 29), the Government 
further isolates the secrecy problem by treating Mr. Cald­
well’s concern with it as “an attack on the fundamental 
nature of grand jury proceedings in general” and grand 
jury secrecy in particular. (Br. 34.) There follows a dem­
onstration of the importance of grand juries and of their 
secret mode of proceeding (Br. 34-42), which leads to the 
conclusion that the protection given Mr. Caldwell by the 
Court of Appeals would “ ‘denude that ancient body of a 
substantial right of inquiry’ ” (Br. 42). But Mr. Caldwell’s 
position, which the Court of Appeals sustained, challenges 
not at all either the importance of the grand jury or its 
habitual secrecy; and it denudes the jury of nothing for 
which the Government demonstrates any need.

Mr. Caldwell’s position has only to do with cases of colli­
sion between grand jury investigations and substantial First 
Amendment interests. Where substantial First Amend­
ment interests are not involved, of course the grand jury 
may investigate without showing, or even having, any 
reason to do so, and in entire secrecy. AVhen substantial 
First Amendment interests are implicated, Mr. Caldwell’s 
position is simply that neither those interests nor the 
realistic effect upon them of the otherwise unassailable prac­
tice of grand jury secrecy can be blindly ignored. Rather, 
the grand jury’s habitual procedures— l̂ike any other gov-



57

ernmental procedures which threaten injury to First 
Amendment interests—must be adapted so that, at the least, 
they work no unnecessary harm to the First Amendment— ̂
which, as much as the Fifth, is “ ‘part of the federal con­
stitutional system’ ” (Br. 34).

The minimal adaptation required by the Court of Appeals 
in this case cannot reasonably be viewed, in the Govern­
ment’s extravagant phrase, as denuding the grand jury of 
a substantial right of inquiry, or even of secret inquiry. 
It is simply that, before a newsman “who . . . uniquely en­
joys the trust and confidence of his sensitive news source” 
(A. 126) is called to testify concerning matters which 
plainly and demonstrably came to his knowledge exclusively 
through his relations with that source, the grand jury must 
show that he has some non-confidential information which 
would in fact advance the jury’s important purposes. This 
showing need not be made publicly: the Government un­
accountably ignores Mr. Caldwell’s and the Court of Ap­
peals’ suggestion that it can be made in camera. (A. 126 
n. 12.)

7. The Government proceeds in the same vein to assail 
the Court of Appeals’ requirement of a showing of “com­
pelling need for the witness’ presence” (A. 125). This re­
quirement is also treated not as limited to newsmen in 
Mr. Caldwell’s situation, or as a means of accommodating 
First Amendment interests with the investigative interests 
of the grand jury, but rather as though the Court of Appeals 
had announced it as some sort of limitation upon the grand 
jury’s general power to subpoena witnesses. So miscon­
ceived, it “breaks with all precedent” (Br. 43). No prece­
dent involving a reconciliation of the First Amendment 
and grand jury process is cited because there is none.

The Government does not mention that the “compelling 
need” test was not in fact dispositive of the present case,



58

where the Court of Appeals found that no need of any sort 
—no “useful purpose”—had been shown for Mr. Caldwell’s 
appearance. (A. 125.) It suggests that a “compelling need” 
test would “severely impede” federal grand juries (Br. 44), 
although this pronouncement is unsupported by any infor­
mation concerning the extent to which federal grand juries 
do, or need to, rely upon newsmen, and appears inconsistent 
with the adoption of a closely similar test in the Glovern- 
ment’s own Guidelines for Subpoenas to the News Media, 
Appendix B, infra. The latter inconsistency is explained 
by the observation that the Guidelines are to be adminis­
tered “internally” in a fashion which does not require liti­
gation (Br. 47 n. 42), but the Government does not explain 
why the limited sort of litigation required by the decision 
below will be unduly burdensome, particularly if the Guide­
lines are in fact observed “internally.”

8. Although no basis was required to subpoena Mr. 
Caldwell, the Government concludes its submission by show­
ing thta it had an “ample” one. (Br. 44-46.) The basis is 
asserted to be Mr. Caldwell’s quotation from David Hilliard 
to the effect that the Black Panther Party advocates violent 
revolution and armed struggle. As in the District Court and 
the Court of Appeals, the Government makes no connection 
whatever between Hilliard’s pronouncements and any of the 
federal criminal laws whose possible violations the grand 
jury is supposed to be investigating. See pp. 30-41 supra. 
To supply this deficiency, the Government characterizes the 
Hilliard description of Black Panther objectives as “violent 
threats,” possibly confusing Mr. Caldwell’s quotation from 
Mr. Hilliard on December 14, 1969 (p. 38 supra) with Mr. 
Hilliard’s alleged threat to kill President Nixon made on 
November 15, 1969 (pp. 34-35 supra). The December 14 
quotation was palpably not a “threat,” still less any sort of 
“threat” punishable under federal law (since it had nothing



59

to do with the President); and we are not informed by what 
logic this description of the Panther Party’s aims is said to 
be one of those “quotations which on their face seemed out­
side the protections of First Amendment free speech” 
(Br. 46).

In short, the Government makes no more showing here 
than in the courts below of any “basis” for calling Mr. 
Caldwell to testify. It ends by planting that basis squarely 
upon speculation. It disparages as “self-serving statements” 
(Br. 46) Mr. Caldwnll’s sworn averment—credited by the 
Court of Appeals—that he has no unpublished non-confiden- 
tial information relative to the Panthers (A. 125); and then 
characterizes this averment itself as a “threat” (Br. 46-47) 
on Mr. Caldwell’s part.

9. The Government does not address the applicability 
of the Department of Justice Guidelines to this case, except 
by the ipse dixit that they “are not intended to create any 
litigable rights in and of themselves.” (Br. 47.) And despite 
the long-settled doctrine that a prevailing party “may, of 
course, assert in a reviewing court any ground in support 
of his judgment, whether or not that ground was relied upon 
or even considered by the [lower] . . . court,” ” the Govern­
ment says without explanation that Mr. Caldwnll’s Fourth 
Amendment claim “is not now before this Court.” (Br. 5 
n. 3.)

We hope that the Court will understand why we cannot 
brief this case along the lines of the Government’s formula­
tion of the issues. The Court of Appeals’ approach to the 
First Amendment question presented seems systematic and 
eminently sensible: first to determine whether and what 
First Amendment interests may be implicated; then to de­
termine whether and what protections should be afforded to

Bandridge v. Williams, 397 U.S. 471, 475 n. 6 (1970).



60

those interests, in light of the competing interests of ef­
fective grand jury investigation; then to apply those pro­
tections, if any, to the particular facts of this case. Of 
course, the Court of Appeals may have misjudged at any 
of these several stages of its reasoning process: those are 
the important First Amendment problems which this Court 
must decide on the merits. We believe that the Court of 
Appeals did not misjudge; and we hope to persuade this 
Court that it did not. But surely the Court of Appeals’ 
basic analytic framework—its methodical definition of the 
issues and its orderly consideration of them—provides the 
appropriate structure for deliberation and determination 
of the controversy. The Government brushes it aside but 
offers no alternative to it.

Accordingly, our own discussion of the First Amendment 
question follows the analytic model of the Court of Appeals. 
That discussion is found in Part IV infra. Before we get to 
it, we make two brief points that follow more immediately 
from the Government’s presentation of the case. These are: 
in Part II, that the Government’s insistence on compelling 
Mr. Caldwell’s appearance before the grand jury under the 
District Court’s uncontested order is, upon this record, a 
sterile and oppressive exercise that the Court of Appeals 
properly forbade as such; and, in Part III, that the Gov­
ernment’s disregard of its own Guidelines for Subpoenas to 
the News Media also forbids its compulsion of Mr. Cald­
well’s testimony. Finally, after our First Amendment dis­
cussion in Part FV, we submit in Part V that the Fourth 
Amendment alternatively supports the Court of Appeals’ 
reversal of Mr. Caldwell’s contempt commitment.



61

II.

Upon the Issues and Facts Presented, the Court of Ap­
peals Properly Refused to Enforce This Grand Jury 
Subpoena as Oppressive.

Both in the Court of Appeals and in this Court, the 
Government has steadfastly declined to litigate the validity 
of the District Court’s protective order. The Government 
has said that it disagrees with that order; it has reserved 
the right to challenge the order later, after using the order 
to its own advantage in the present stage of the proceed­
ings ; and it will apparently seek to have the order reversed 
without being reviewed, through its amicus curiae presenta­
tion in Branzhurg and Pappas. But the plain meaning of 
these various reservations and collateral attacks is that at 
this stage of this case the Government accepts Judge 
Zirpoli’s order as legally binding and controlling the nature 
of any appearance which Earl Caldwell might make before 
the grand jury.

Consequently, as the case confronted the Court of Ap­
peals and confronts this Court, Mr. Caldwell mmy not be 
asked by the grand jury to “reveal confidential associa­
tions, sources or information received, developed or main­
tained by him as a professional journalist in the course 
of his efforts to gather news for dissemination to the public 
through the press or other news media.” (A. 105.) The 
only justiciable controversy is whether the Government 
may force him to appear before the grand jury for the 
purported purpose of testifying concerning non-confiden- 
tial matters. In this regard, Mr. Caldwell’s sworn averment 
in the District Court is that: “Generally, those matters 
which were made on a nonconfidential or ‘for publication’ 
basis have been published in articles I have written in the 
New York Times; conversely, any matters which I have



62

not thus far disclosed in published articles would have 
been given to me based on the understanding that they 
were confidential and would not be published.” (A. 18.)

The Government has not suggested in the District Court, 
the Court of Appeals, or this Court, the slightest ground 
for disbelief of Mr. Caldwell’s assertion. The Government 
labels it as “self-serving” (Br. 46)—in the same sense, 
presumably, that the Government’s assertion of need for 
Mr. Caldwell’s testimony is self-serving—but provides no 
factual basis in Mr. Caldwell’s writings or relations with 
the Panthers, nor any plausible factual hypothesis, to cast 
a shred of doubt upon it. Mr. Caldwell has written very 
extensively on the Panthers (see note 2 supra) ; news about 
the Panthers has been in great demand throughout the 
period of his writing and there is no conceivable reason 
to suppose that Mr. Caldwell has withheld from his read­
ing public anything that he could print consistently with 
those confidential relations that the District Court’s order 
protects. Nor can the Government’s failure to point to 
anything that would discredit Mr. Caldwell be cloaked be­
hind a claim of grand jury secrecy. It would obviously 
disclose nothing pertinent to the jury’s investigation of 
the Panthers if the Government explained wdiy it believes 
that Mr. Caldwell may have non-confidential information 
to give. And, of course, the Court of Appeals’ disposition 
leaves it open to the Government to make such an explana­
tion in the District Court—in camera if appropriate (see 
A. 126 n. 12)—at any later stage of the proceeding which 
the Government may choose (A. 126-127).®”

Mr. Caldwell’s New York Times articles concerning the Pan­
thers have been published in 50 or 60 newspapers across the 
country. (A. 18.)

See A. 125: “If any competing public interest is ever to arise 
in a case such as this . . .  it will be on an occasion in which the 
witness, armed with his privilege, can still serve a useful purpose



63

In this posture of the issues and the record, the Court 
of Appeals’ conclusion is hardly debatable:

“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 ap­
pearance before the grand jury is unnecessary) that 
is not protected by the District Court’s order. If this 
is true—and the Government apparently has not be­
lieved 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.” (A. 125.)

Or, to put the matter another way (and pretermitting for 
the moment all First Amendment considerations), if there 
ever is a case where the futile and oppressive character of 
a grand jury subpoena excuses a witness’ compliance with 
it, this is that case.

Plainly there are such cases. This Court has intimated 
as much in its Blair and Bryan opinions, quoted in note 78 
infra. The Federal Criminal Rules authorize the federal 
courts to quash subpoenas “if compliance would be unrea­
sonable or oppressive” (Fed. Rule Crim. Pro. 17(c)); and, 
although this language appears in a subsection of Rule 17 
dealing with subpoenas duces tecum, it has always been 
supposed that the federal courts have the same power to 
excuse compliance with oppressive grand jury subpoenas 
ad testificandum. E.g., In re National Window Glass Work­
ers, 287 Fed. 219 (N.D. Ohio 1922); Application of laconi,

before the Grand Jury. Considering the scope of the privilege 
embodied in the protective order, these occasions would seem to be 
unusual. It is not asking too much of the Government to show that 
such an occasion is presented here.”



64

120 F. Supp. 589, 590-591 (D. Mass. 1954) (dictum). Not­
withstanding its considerable autonomy, a federal grand 
jury is an arm of the federal court, and the federal courts 
must have “supervisory power to prevent the process of 
that grand jury from being used abusively.” {Id., at 590.) 
To deny such power would breach the promise long held 
out by this Court, that where abuses of grand jury process 
were “called to the attention of the court, it would doubt­
less be alert to repress them.” Hale v. Henkel, 201 U.S. 
43, 65 (1906).

In characterizing the present subpoena to Mr. Caldwell 
as abusive, we do not, and need not, imply that it was 
issued “in bad faith or for purposes of harassment” (Br. 
29 n. 32). But, as the course of this litigation makes 
indelibly clear, it was issued without any substantial 
justification in investigative need, or concern for its im­
pact on Mr. Caldwell as a journalist. From the point of view 
of the grand jury, it is very easy and convenient to fill out 
a subpoena form for a reporter, without pausing to con­
sider that it may destroy him while netting nothing of 
real value to the jury’s investigation.®'* But a federal court

The strain evidenced by the Government’s brief in explaining 
how Mr. Caldwell can further the grand jury’s investigation is 
instructive. Mr. Caldwell will be asked “to testify, at the very 
least, that he did indeed hear the words quoted in his articles; 
that they were made seriously and not in jest.” (Br. 46.) The Gov­
ernment is here talking about articles published on the front page 
of The New York Times. It is the sheerest unworldly web-spinning 
to suggest that any sensible grand jury would be assisted by hear­
ing Mr. Caldwell affirm that he “did indeed hear” words which he 
attributed to David Hilliard, between quotation marks, in this for­
mat, or “that they were made seriously.” (The matter might be 
different if federal grand juries could not act upon hearsay, but 
of course they can. Cosiello v. United States, 350 U.S. 359 (1956).) 
“Moreover, from the published article it appears that he may have 
other information of a non-confidential nature which would be of 
interest to the grand jury.” (Br. 46.) This is simply not true. The 
article to which the Government refers appears at A. 11-16, and is 
discussed at pp. 38-40 supra.



65

should surely not display the same heedlessness when it 
is asked to enforce the grand jury’ process by its own 
contempt power.

This is the more true here, where First Amendment 
concerns are implicated. We hope that the Court will 
agree with our submission in Part IV infra that the nature 
of those interests, weighed appropriately against com­
peting interests involved in grand jury investigations, re­
quires the recognition of a constitutional immunity against 
compelling Mr. Caldwell’s testimony in this ease. But 
whether or not such a constitutional rule is recognized, 
it is factually indisputable upon this record that if Mr. 
Caldwell appears before the grand jury very considerable 
harm to his ability as one of the country’s foremost re­
porters of news about political militants is going to occur. 
To cause that harm gratuitously—with “no benefit to the 
Grand Jury” (A. 125)̂ —^would be indefensible under a 
Constitution in which the First Amendment has a high 
and valued place. On this ground alone, the decision of 
the Court of Appeals was plainly right and should be af­
firmed by this Court.



66

III.
The Government May Not Persist in Compelling Mr. 

Caldwell’s Attendance Before the Grand Jury in Disre­
gard of Its Own Guidelines.

The Department of Justice’s Guidelines for Subpoenas 
to the News Media, promulgated September 2, 1970, pro­
vide the following regulations. (1) “ [A] 11 reasonable at­
tempts should be made to obtain information from non­
press sources before there is any consideration of sub­
poenaing the press.” (App. B, p. lb infra.) (2) When the 
issuance of a subpoena is contemplated, negotiations with 
the press are to be attempted, in which an effort is to be 
made “to accommodate the interests of the grand jury 
with the interests of the news media. In these negotia­
tions, where the nature of the investigation permits, the 
government should make clear what its needs are in a par­
ticular case as well as its willingness to respond to par­
ticular problems of the news media.” {Id., at 2b.) (3) Sub­
poenas are to be issued only upon the express prior au­
thorization of the Attorney General, and will be routinely 
quashed if they are not, “without prejudice to [the Gov­
ernment’s] . . . rights subsequently to request the sub­
poena upon the proper authorization.” (Ibid.) (4) Ap­
plications for the Attorney General’s authorization of sub­
poenas are to be governed by described criteria, including
(a) “sufficient reason to believe that the information sought 
is essential to a successful investigation [and is not] . . . 
peripheral, non-essential or speculative information” ; and
(b) unsuccessful attempts “to obtain the information from 
alternative non-press sources.” (Id., at 2b-3b.) (5) These 
guidelines control “the great majority of cases,” but “emer­
gencies and other unusual situations may develop where a 
subpoena request to the Attorney General may be sub-



67

mitted which does not exactly conform to these guidelines.” 
{Id., p. 3b.)

The subpoena which the Glovernment presently insists 
upon enforcing against Mr. Caldwell flouts every one of 
these requirements. (1) Nowhere in the course of this 
litigation has the Government suggested that it made any 
attempts to obtain whatever information it thinks l\Ir. 
Caldwell may have “from non-press sources.” To the con­
trary, the Government has fiercely resisted any obligation 
to look to those sources first. (2) No serious negotiations 
have ever been undertaken by the Government with coun­
sel for Mr. Caldwell. In a few discussions between the 
attorneys following service of the subpoena, Government 
counsel neither made “clear what its needs are” nor ex­
plained why the “nature of the investigation” would not 
permit such clarification, but rather said that the sub­
ject of a grand jury’s investigation was “no concern of a 
witness.” (See note 5 supra.) At every stage, up to and 
including its brief in this Court, the Government has 
demonstrated a monolithic lack of “willingness to respond” 
to Mr. Caldwell’s “particular problems” as a journalist 
having unique and sensitive confidential relations with 
militants. (3) The subpoena was not issued upon prior 
approval of the Attorney General, nor has the Government 
subsequently moved to quash it on this account. As the 
Government’s brief amply demonstrates (see note 60 
supra), either Mr. Caldwell is being pursued to obtain 
“peripheral, non-essential [and] . . . speculative informa­
tion,” or those words are bereft of meaning. And (4) if the 
present case falls within the class of “emergencies and 
unusual situations,” then that category is as delusively 
large as the category of peripherality is delusively small.

The Government insists that the Guidelines are “not 
intended to create any litigable rights” (Br. 47 n. 42)—a



68

euphemism for the proposition that the Government is free 
to ignore them when it chooses. That has never been this 
Court’s view of the obligation undertaken by any agency 
of government which has purported to control its decision­
making processes by announced principles. E.g., United 
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); 
Service v. Dulles, 354 U.S. 363 (1957); Vitarelli v. Seaton, 
359 U.S. 535 (1959). These decisions do not, we think, 
depend upon the intent of the governmental agency to sub­
ject itself to judicial review, but rather upon the bedrock 
notion of due process of law. Profession without per­
formance is intolerable to due process.

And that is exactly what this case presents. Both in the 
Court of Appeals and in this Court, the Government has 
sought to minimize the need of the press for the sort of 
First Amendment protection which Earl Caldwell claims 
by pointing to the Guidelines. (See pp. 16-17 supra-, Br. 47 
n. 42.) At the same time, it has ignored the Guidelines in 
Mr. Caldw’ell’s case. In an earlier memorandum filed with 
this Court, the Government explained that disregard by 
saying both that the Guidelines were not retroactive, and 
that, “ ['vpjhile this litigation was under way before the 
guidelines were issued, a specific decision to pursue it was 
made thereafter.” The first proposition is untenable, see 
Thorpe v. Housing Authority of the City of Durham, 393 
U.S. 268, 281-282 (1969), and cases cited; while the second 
throws into sharp relief the hazards of leaving preserva­
tion of First Amendment concerns to the discretion of the 
Government. The Government does not say whether the 
“specific decision” made in this case was to ignore the 
Guidelines or that Mr. Caldwell’s testimony was compellable 
within them. Either decision makes plain that the Guidelines 
will not “minimize the possibility that [the First Amend-

 ̂Reply Memorandum for the United States, p. 2, n. 2.



69

ment] . . . issue will reoccur in a federal context” (Br. 47 
n. 42).

For this reason, we hope that the Court will reach the 
First Amendment question to which we now turn. It is of 
the utmost importance, we believe, that protection of the 
press against the destructive impact of improvident and 
unnecessary subpoenas be placed on a constitutional foot­
ing, not left to “a prosecutor’s sense of fairness.” Baggett
V. Bullitt, 377 U.S. 360, 373 (1964). But the fairness of 
prosecutors is also of some independent importance; and 
we therefore hope that this Court will additionally make 
clear that the Government’s announced Guidelines bind it. 
Mr. Caldwell’s testimony cannot be compelled, we submit, 
except in compliance with both the Guidelines and the 
Constitution.®^

We do not think it so, as the Government has suggested, that 
this Court’s acceptance of Mr. Caldwell’s First Amendment con­
tention “would make those guidelines irrelevant” (Reply Memo­
randum for the United States, p. 2). The essence of the Guidelines 
is the creation of an administrative procedure which, by requiring 
pre-subpoena negotiation and the consideration of the advisability 
of a subpoena at the highest level of government, may avoid court 
clashes on constitutional points.

The Government notes at Br. 2 n. 1 that the term of the grand 
jury which issued the subpoena now in contention will have expired 
before this Court hears argument in the case. We agree with the 
Government that this does not render the controversy moot. Mr. 
Caldwell has now been subpoenaed by two successive grand juries, 
the subpoena by the second following expiration of the first during 
the earlier stages of this litigation. It is therefore quite apparent 
that the Government means to have Mr. Caldwell subpoenaed by 
successive grand juries unless and until his legal rights against 
grand jury process are judicially established. A holding that the 
ease is moot under these circumstances could only result in an 
impossible procedural contretemps.



70

IV.

The First Amendment Forbids Compulsion of Mr. 
Caldwell’s Appearance Before the Grand Jury on This 
Record.

A considerable body of recent writings on the subject 
of newsmen’s subpoenas concurs with the District Court 
and the Court of Appeals below that such subpoenas im­
plicate fundamental interests which are plainly protected 
by the First Amendment, and thereby place “First Amend­
ment freedoms . . .  in jeopardy” (A. 118).®̂  That conclu­
sion seems to us to follow inescapably from one non-con- 
troversial legal proposition and a second uncontrovertible 
factual one. The legal proposition is that a cardinal aim 
of the First Amendment is to protect the dissemination of

See Guest & Stanzler, The Constitutional Argument for News­
men Concealing Their Sources, 64 NW. U. L. Rev. 18 (1969) ; 
Goldstein (Abraham S.), Newsmen and Their Confidential Sources, 
The New BepuUic, March 21, 1970, p. 13; Note, Reporters and 
Their Sources: The Constitutional Bight to a Confidential Rela­
tionship, 80 Yale L. J. 317 (1970) ; Comment, The Newsman’s 
Privilege: Government Investigations, Criminal Prosecutions and 
Private Litigation, 58 Calif. L. Rev. 1198 (1970) ; Comment, The 
Newsman’s Privilege: Protection of Confidential Associations and 
Private Communications, 4 J. Law Reform 85 (1970) ; Comment, 
Constitutional Protection for the Newsman’s Work Product, 6 
H aev. Civil Rights-Civil L iberties L. Rev. 119 (1970). Even 
writings which oppose recognition of protection for newsmen’s 
confidences do not deny the impact of newsmen’s subpoenas upon 
the functioning of the press, although they minimize its extent and 
adjudge it justified by the competing interest in compelling testi­
mony. E.g., Beaver, The Newsman’s Code, the Claim of Privilege 
and Everyman’s Right to Evidence, 47 Ore. L. Rev. 243 (1968). 
The question of the extent of the harmful impact is, of course, a 
factual one to which this record speaks and concerning which it— 
and the findings of two courts below—leave no doubts. See pp. 15- 
30 supra. The question of justification involves the ultimate judg­
ment which this Court must make, and which we discuss infra.



71

information (and particularly of political information) by 
the press to the public, against governmental abridgment 
whether intended or unintended. E.g., Grosjean v. Ameri­
can Press Co., 297 U.S. 233 (1936); New York Times Co. 
V. Sullivan, 376 U.S. 254 (1964). The factual proposition, 
which this record establishes beyond peradventure, is that 
compelling newsmen to testify in a manner that under­
mines the assurance of their confidential news sources in 
the inviolability of their confidences does abridge the dis­
semination of information by the press to the public.

The Grovernment says, to be sure, that the issue here 
relates to gathering news rather than to disseminating it, 
and that “a constitutionally protected right of the press 
to gather news” (Br. 15; Government’s emphasis) is some­
thing distinct from its acknowledged right to publish news. 
The question what “rights,” if any, this Court should recog­
nize at any stage of the news-gathering-news-publishing 
process, as against various forms of governmental abridg­
ment, seems to us to come at the end rather than the be­
ginning of First Amendment analysis. See Neiv York Times 
Co. V. Sullivan, 376 U.S. 254, 268-269 (1964). But insofar 
as the Government suggests that the interest of the press 
in gathering news is isolable from the First Amendment 
interest in its publication, that suggestion invites this Court 
to function in the manner of T. E. Powell’s definition of the 
legal mind: one which is capable of thinking about a thing 
inextricably attached to something else without thinking of 
the thing which it is attached to. In his concurring opinion 
in Lamont v. Postmaster General, 381 U.S. 301, 308 (1965), 
Mr. Justice Brennan observed that the Government’s posi­
tion there would have led to “a barren marketplace of ideas 
that had only sellers and no buyers.” Here the Govern­
ment’s position seems to be that the First Amendment is 
satisfied by buyers and sellers but no merchandise.



72

Happily, this Court has always taken a broader view of 
the Amendment. Under that view, the interests which the 
courts below found implicated by the subpoena to Mr. Cald­
well plainly lie at the very heart of the First Amendment’s 
concern. For, beyond Mr. Caldwell’s own professional as­
sociations with political militants—which, unmistakably, the 
First Amendment protects against unnecessary or undue 
governmental interference®'  ̂— “[i]n the ultimate, an in­
formed and enlightened public opinion . . .  [is] the thing 
at stake.” ®® Freedom of the press to gather the news®'' is 
the factual precondition of freedom of the press to dis­
seminate the news,®* and freedom of the public to receive

This Court has repeatedly recognized that the First Amend­
ment guarantees “freedom to engage in association for the ad­
vancement of beliefs and ideas.” N.A.A.C.P. v. Alabama ex rel. 
Patterson, 357 U.S. 449, 460 (1958). See, e.g., De Jonge v. Oregon, 
299 U.S. 353 (1937) ; Skelton v. Tucker, 364 U.S. 479, 486 (1960) ; 
Gibson v. Florida Legislative Investigation Committee, 372 U.S. 
539, 543-544 (1963). And surely if, for example, the association 
of political groups with attorneys looking to litigation is protected 
by the First Amendment, see N.A.A.C.P. v. Button, 371 U.S. 415 
(1963) ; Brotherhood of Railroad Trainmen v. Virginia ex rel. 
Virginia State Bar, 377 U.S. 1 (1964) ; United Mine Workers v. 
Illinois State Bar Ass’n, 389 U.S. 217 (1967), the association of 
the same groups with newsmen looking to the publication of in­
formation concerning their political views is similarly protected. 
For, whatever special status an attorney may have under other 
constitutional provisions, his role is assuredly no more central to 
First Amendment interests than that of the newsman.

®® It was with this phrase that this Court summarized the pre­
constitutional history of the First Amendment in Grosjean v. 
American Press Co., 297 U.S. 233, 247 (1936).

Lower courts have recognized that the news-gathering func­
tions of the press are protected by the First Amendment. Asso­
ciated Press V. KVOS, 80 F.2d 575, 581 (9th Cir. 1935), rev’d on 
other grounds, 299 U.S. 269 (1936) ; Providence Journal Co. v. 
McCoy, 94 F. Supp. 186, 195-196 (D.E.I. 1950), aff’d on other 
grounds, 190 P.2d 760 (1st Cir. 1951).

®® See, e.g.. Near v. Minnesota, 283 U.S. 697 (1931); Murdock 
V. Pennsylvania, 319 U.S. 105 (1943) ; Talley v. California, 362 
U.S. 60 (I960) ; Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 
(1967).



73

it.®® This constellation of freedoms—designed “to supply 
the public need for information and education with respect 
to the significant issues of the times” —is, simply, what 
the First Amendment is all about.” “In other words, the 
State may not consistently with the spirit of the First 
Amendment, contract the spectrum of available knowl­
edge.” For “ [t]hat Amendment rests on the assumption 
that the vfidest possible dissemination of information from 
diverse and antagonistic sources is essential to the welfare 
of the public, and that a free press is the condition of a 
free society.” ” “It is the purpose of the First Amendment

See, e.g., Martin v. City of Struthers, 319 IJ.S. 141, 143 (1943) ; 
Lamont v. Postmaster General, 381 II.S. 301 (1965) ; Stanley v. 
Georgia, 394 U.S. 557, 564 (1969).

'"'Thornhill v. Alabama, 310 U.S. 88, 102 (1940).
“The predominant purpose of the . . . [First Amendment] 

was to preserve an untrammeled press as a vital source of public 
information. The newspapers, magazines and other journals of 
the country, it is safe to say, have shed and continue to shed, more 
light on the public and business aifairs of the nation than any 
other instrumentality of publicity; and since informed public 
opinion is the most potent of all restraints upon misgovernment, 
the suppression or abridgment of the publicity afforded by a free 
press cannot be regarded otherwise than with grave concern.” 
Grosjean v. American Press Co., 297 U.S. 233, 250 (1936). Time 
and again, this Court has spoken of the process of public en­
lightenment as the core concern of the First Amendment. E.g., 
Stromberg v. California, 283 U.S. 359, 369 (1931) ; De Jonge v. 
Oregon, 299 U.S. 353, 365 (1937); Terminiello v. Chicago,
U.S. 1. 4 (1949) ; Smith v. California, 361 U.S. 147, 153 (1959) ; 
New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) ; Time, 
Inc. v. Hill, 385 U.S. 374, 389 (1967).

Griswold v. Connecticut, 381 U.S. 479, 482 (1965). The Court 
continues: “The right of freedom of speech and press includes not 
only the right to utter or to print, but the right to distribute, the 
right to receive, the right to read . . . and freedom of inquiry, 
freedom of thought, and freedom to teach. . . . —indeed the free­
dom of the entire university community. . . . Without these 
peripheral rights, the specific rights would be less secure. . . .” 
Id., at 482-483.

’’̂ Associated Press v. United States, 326 U.S. 1, 20 (1945).



74

to preserve an uninhibited marketplace of ideas in which 
trubh will ultimately prevail . . . .  ‘[SJpeech concerning 
public affairs is more than self-expression; it is the essence 
of self-government.’ . . .  It is the right of the public to 
receive suitable access to social, political, esthetic, moral 
and other ideas and experiences which is crucial here.”

The Court of Appeals, then, properly defined the First 
Amendment interest at stake as the free flow of political 
information to the public. It also properly found as a fact 
that the compulsion of newsmen’s testimony in a fashion 
that jeopardizes their ability to assure confidentiality to 
their news sources gravely and broadly damages this First 
Amendment interest. It does so in the most immediate way 
by causing newsmen’s confidential sources to dry up, leav­
ing those whose job it is to inform the public “able to do 
little more than broadcast press releases and public state­
ments” (A. 52). (See A. 117-118.) The Court of Appeals 
made this factual finding on the basis of opinions and con­
crete experiences “impressively asserted in affidavits of 
newsmen of recognized stature*” (A. 116-117); and, in 
view of the Government’s entire failure to controvert any 
of this evidence, no other finding would have been possible. 
See pp. 15-30 supra.

Indeed, the record establishes overwhelmingly that the 
very assertion of governmental power to compel Mr. Cald­
well’s testimony in this case has already had the wide­
spread effect of making militants and others afraid and 
unwilling to talk to reporters. If that power is sustained, 
sources of information that are indispensable to the news 
media’s reporting and to the public’s understanding of 
vital aspects of contemporary political life will be choked 
off. This is very far from being an “ ‘imaginary and unsub­
stantial’ ” danger (Br. 41). It has begun to happen. The

Bed Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390 (1969).



75

numerous specific incidents described in this record, wherein 
previously willing news sources have refused to cooperate 
with newsmen on the expressed ground of fear caused by 
the Caldwell subpoena and related recent federal sub­
poenas, solidly support the professional opinions of jour­
nalists of wide and varied experience that “ [a]s a result 
of the type of probing that the Government is currently 
undertaking, it is becoming increasingly difficult for re­
porters to gather any information whatsoever about the 
activities of the various so-called radical black and white 
organizations” (A. 42); and, if this continues, the “net 
result . . . will be to diminish seriously the meaningful 
news available about an important segment of our popula­
tion” (A. 23).

The very fact that journalists believe and fear this hap­
pening is, of course, of enormous independent significance. 
Every newsman who reports a story, and every editor who 
edits one, must decide whether to include or to excise partic­
ular, sensitive details. If the inclusion of a detail may call 
dowm a subpoena upon the new ŝman or the medium—and 
if, as newsmen fear, the effect of being subpoenaed will 
be to destroy them professionally, as Anthony Ripley was 
destroyed '̂  ̂ and as Earl Caldwell will be destroyed—the 
effect will be “self-censorship”’® of incalculable proportions. 
(A. 120). And the newsman’s “burden wmuld become the 
public’s burden, for by restricting him the public’s access 
to reading matter would be restricted.””

The question, therefore, is whether the Court of Appeals 
correctly concluded as a matter of constitutional law that 
this drastic damage to fundamental First Amendment in-

See note 30 supra.
New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964); 

see also Time, Inc. v. Hill, 385 U.S. 374, 389 (1967).
Smith V. California, 361 U.S. 147, 153 (1959).



76

terests required some accommodation of the “Grand Jury’s 
investigative power” (A. 118). Although the Government 
does not brief the issue in this Court, we take its position 
to be that this harm to the First Amendment is to be totally 
disregarded insofar as it conflicts with the principle “stated 
more than fifty years ago in Blair v. United States, 250 
U.S. 273, 281 [(1919), that] ‘the giving of testimony and 
the attendance upon the 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.’ See also United States v. Bryan, 
339 U.S. 323 [(1950)]; Brown v. Walker, 161 U.S. 591, 500 
[sic (1896)].’ ” (Br. 36-37; see App. C infra.)

We have no quarrel with the latter proposition in its 
generality. But, like every other legal proposition of which 
we are aware, this one is subject to exceptions and limita­
tions (as expressly recognized in the authorities that estab­
lish it’*); and, like every other governmental power, the 
power of a grand jury to compel the appearance of wit­
nesses is limited by the First Amendment. One needs not

Blair v. United States, supra, 250 U.S., at 281-282:
“The duty, so onerous at times, yet so necessary to the adminis­
tration of justice according to the forms and modes established 
in our system of government . . .  is subject to mitigation in 
exceptional circumstances; there is a constitutional exemption 
from being compelled in any criminal case to be a witness 
against oneself . . . ; some confidential matters are shielded 
from considerations of policy, and perhaps in other cases for 
special reasons a witness may be excused from telling all that 
he knows.

“But, aside from exceptions and qualifications—and none 
such is asserted in the present case—the witness is bound not 
only to attend but to tell what he knows. . . . ”

United States v. Bryan, supra, 339 U.S., at 331: “Certain exemp­
tions from attending or, having attended, giving testimony are 
recognized by all courts.” Of course, as the Bryan case emphasizes, 
these exemptions are extraordinary, id., at 331-332, and each “pre­
supposes a very real interest to be protected,” id., at 332. But such 
is the First Amendment interest asserted here.



77

—and we do not—denigrate the ‘‘high place” (Br. 34) or 
the practical importance of grand juries when we assert 
—as this Court has asserted—that their procedures also 
must be adapted to other constitutional considerations of 
high place {e.g., Dennis v. United States, 384 TJ.S. 855 
(1966)), including the “supremely precious” ” concerns of 
the First Amendment (see Wood v. Georgia, 370 TJ.S. 375
(1962)).

The power of compulsory process of legislative inves­
tigating committees is surely no less necessary or impor­
tant than that of grand juries. The Legislature’s need and 
authority “through its own process, to compel a private 
individual to appear before it or one of its committees and 
give testimony needed to enable it efficiently to exercise a 
legislative function belonging to it under the Constitution,” 
McGrain v. Daugherty, 273 U.S. 135, 160 (1927), has been 
asserted by this Court in the most sweeping terms. See 
id., at 160-175; United States v. Rumely, 345 U.S. 41, 43 
(1953); Barenblatt v. United States, 360 U.S. 109, 111-112 
(1959). Yet the Court has also repeatedly held this power 
subject to First Amendment limitation. E.g., De Gregory 
V. Attorney General of New Hampshire, 383 U.S. 825 (1966).

“The Bill of Rights is applicable to investigations as 
to all forms of governmental action. Witnesses cannot 
be compelled to give evidence against themselves. They 
cannot be subjected to unreasonable search and seizure. 
Nor can the First Amendment freedoms of speech, 
press, . . .  or political belief and association be 
abridged.” {Watkins v. United States, 354 U.S. 178, 
188 (1957).)

See Sweezy v. New Hampshire, 354 U.S. 234, 245 (1957) 
(opinion of Chief Justice Warren). “When the inquiry is

”  A.A.A.C'.P. V. Button, 371 U.S. 415, 433 (1963).



78

conducted by the use of compulsory process, the judiciary 
must bear the responsibility of protecting individual 
rights.” Liveright v. Joint Committee, 279 F. Supp. 205, 
215 (M.D. Tenn. 1968). This responsibility can be no less 
when the investigating agency, whose process threatens 
to destroy First Amendment freedoms, is not a Legislature 
in the exercise of its independent and coeval prerogatives, 
but the court’s own grand jury.*”

Of course, this Court has never heretofore considered 
any case dealing specifically with a collision between grand 
jury subpoena process and the First Amendment. But res­
olution of such a collision hardly presents a unique prob­
lem; and we think that authoritative precedents plainly 
point the way. This is so because the service of a grand 
jury subpoena upon a newsman in Mr. Caldwell’s situation 
presents a subspecies of the general question, previously 
considered by this Court in numerous aspects, of the limi­
tations imposed by the Constitution upon governmental 
investigations that, by compelling injurious disclosures, 
may trench upon freedoms guaranteed by the First Amend­
ment. E.g., Shelton v. Tucker, 364 F.S. 479' (1960); Gibson 
V. Florida Legislative Investigation Committee, 372 U.S. 
539 (1963).*”

It has never been suggested that a grand jury has the degree 
of independence from the court to which it is attached that is 
possessed by a legislative committee. Rather, the power and obliga­
tion of the courts to supervise their grand juries’ process, in order 
to prevent abridgment of constitutional rights, has long been recog­
nized. Hale V. Henkel, 201 U.S. 43, 65 (1906) (dictum). See, for 
example. United States v. Judson, 322 F.2d 460 (9th Cir. 1963) ; 
Continental Oil Co. v. United States, 330 P.2d 347 (9th Cir. 1964) • 
In re Dimiisio, 442 F.2d 276 (7th Cir. 1971) ; Application of Cer­
tain Chinese Family Benevolent and District Associations 19 
F.E.D. 97 (N.D. Cal 1956).

*1 This point was recognized in Garland v. Torre, 259 F.2d 545 
(2d Cir. 1958), discussed in note 85 infra. Prior to the decisions 
below, the Garland opinion provided the one authoritative discus­
sion by a federal court of a problem of “newsman’s privilege” in



79

“In the domain of these indispensable liberties, whether 
of speech, press, or association, the decisions of this Court 
recognize that abridgment of such right, even though un­
intended, may inevitably flow from varied forms of gov­
ernmental action.” N.A.A.G.P v. Alabama ex rel. Patterson, 
357 U.S. 449, 461 (1958).*' Specifically,

“It is hardly a novel perception that compelled dis­
closure of affiliation with groups engaged in advocacy 
may constitute . . . [an] effective restraint . . .  on 
freedoms of association. . . . This Court has recog­
nized the vital relationship between freedom to asso­
ciate and privacy in one’s associations. . . . Inviolabil­
ity of privacy in group associations may in many 
circumstances be indispensable to preservation of free­
doms of association, particularly when a group es­
pouses dissident beliefs.” {Id., at 462; see also Bates 
V. City of Little Rock, 361 U.S. 516, 523 (I960).)

the context of a First Amendment claim. State court decisions— 
which, of course, generally reject the conception of “newsman’s 
privilege” in the absence of a statute conferring it, see Annot., 7 
A.L.R. 2d 591 (1966)—have been insufficiently advertent of the 
relationship between the issues raised by the claim of such a 
privilege and other issues involving governmental^ compelled dis­
closure in the First Amendment context. See, for example. State 
V. Buchanan, 436 P.2d 729 (Ore. 1968), and the criticism of that 
decision in Recent Case, 82 H arv. L. Rev. 1384 (1969).

Against this background, it is particularly significant that the 
Garland court, a dozen years ago, framed the issue before it ex­
actly as we think the issue should be framed: as whether the 
investigative interest to be served by requiring Mr. Caldwell’s testi­
mony outweighs the attendant impairment of First Amendment 
freedoms. 259 F.2d, at 548. However, as we shall discuss in the 
text infra, numerous decisions of this Court since 1958 have clarified 
the standards to be used in such a weighing process and, in par­
ticular, have developed the concept that the asserted investigative 
interest may prevail only if it is “compelling” and “overriding.”

Accord: Bates v. City of Little Bock, 361 U.S. 516, 523 (1960), 
where the Court .goes on to say; “Freedoms such as these are pro­
tected not only against heavy-handed frontal attack, but also from 
being stifled by more subtle governmental interference.”



80

So also may freedom from compulsion of destructive 
disclosures be indispensable to freedoms of speech and of 
the press. Talley v. California, 362 U.S. 60 (1960); see 
United States v. Rumely, 345 U.S. 41, 43-46 (1953). There­
fore, “It is particularly important that the exercise of the 
power of compulsory process be carefully circumscribed 
when the investigative process tends to impinge upon such 
highly sensitive areas as freedom of speech or press, free­
dom of political association, and freedom of communication 
of ideas . . . ” Sweezy v. Rew Hampshire, 354 U.S. 234, 245 
(1957) (opinion of Chief Justice Warren).

This Court has had occasion to apply these principles in 
a series of decisions. The decisions have consistently sought 
to accommodate both the legitimate interests of government 
in the use of compulsory process as an investigative tool, 
and the protection of those First Amendment interests upon 
which compulsory process may intrude. The accommoda­
tion has been effected by a process of “weighing” or “bal­
ancing” various asserted investigative needs against the 
varying sorts and degrees of harm to First Amendment 
freedoms caused by the investigations. Compare Vphans v. 
Wyman, 360 U.S. 72 (1969), with DeGregory v. Attorney 
General of New Hampshire, 383 U.S. 825 (1966), and com­
pare Watkins v. United States, 354 U.S. 178 (1957); Baren- 
hlatt V. United States, 360 U.S. 109 (1959); and Gibson v. 
Florida Legislative Investigation Committee, 372 U.S. 539

See Barenblatt v. United States, 360 U.S. 109, 126 (1959) : 
“Undeniably, the First Amendment in some circumstances pro­
tects an individual from being compelled to disclose his as- 
sociational relationships. However, the protections of the First 
Amendment . . .  do not afford a witness the right to resist in­
quiry in all circumstances. Where First Amendment rights 
are asserted to bar governmental interrogation resolution of 
the issue always involves a balancing by the courts of the 
competing private and public interests at stake in the par­
ticular circumstances shown.”



81

(1963). In this process, certain clear and relatively con­
stant principles emerge.

The most obvious of these is the reflection, in cases where 
privacy of association collides with government investiga­
tion, of a still more general First Amendment precept. 
“The decisions of this Court have consistently held that 
only a compelling state interest in the regulation of a 
subject within the State’s constitutional power to regu­
late can justify limiting First Amendment freedoms.” 
N.A.A.C.P. V. Button, 371 U.S. 415, 438 (1963).

Such a showing of “compelling state interest” has re­
peatedly been required as the precondition of any govern­
mental invasion into spheres of privacy affected by First 
Amendment concerns, whether by way of investigations, e.g. 
Gibson v. Florida Legislative Investigation Committee, 372 
U.S. 539, 546 (1963); DeGregory v. Attorney General of 
Neiv Hampshire, 383 U.S. 825, 829 (1966), or other methods 
of coercing disclosures, e.g., Bates v. Little Rock, 361 U.S. 
516, 524 (1960); Louisiana ex rel. Gremillion v. N.A.A.C.P., 
366 U.S. 293, 296-297 (1961). Particularizing the require­
ment in a case where an asserted state interest in the in­
vestigation of subversion was held insufficient to justify 
inquiry into protected associations, the Court wrote:

“We understand this to mean—regardless of the label 
applied, be it ‘nexus,’ ‘foundation,’ or whatever—that 
it is an essential prerequisite to the validity of an 
investigation which intrudes into the area of consti­
tutionally protected rights of speech, press, association 
and petition that the State convincingly show a sub­
stantial relation between the information sought and a 
subject of overriding and compelling state interest.
. . . ‘Where there is a significant encroachment upon 
personal liberty, the State may prevail only upon show­
ing a subordinating interest which is compelling.’ ”



82

(Gibson v. Florida Legislative Investigation Commit­
tee, supra, 372 U.S., at 546.)

The elements of such a showing are at least three:
(1) The “information sought” must he demonstrably 

relevant to a clearly defined, legitimate subject of govern­
mental inquiry. The reason for demanding clear definition 
of the subject of the investigation is plain. Like the re­
quirement that legislation which may trench on First 
Amendment interests meet “strict” standards of speci­
ficity,®̂  insistence on strict definition of the scope of an 
investigation assures that the governmental body whose 
processes may intrude upon the First Amendment has 
focused both upon its purposes and upon the question 
whether those purposes require the intrusion. See Mr. 
Justice Harlan, concurring, in Garner v. Louisiana, 368
U. S. 157, 203 (1961). The requirement is a safeguard 
against loose and formless investigations which—like loose 
and formless laws—“̂lend themselves too readily to the 
denial of [First Amendment] . . . rights.” Dombroivshi
V. Pfister, 380 IJ.S. 479, 486 (1965). See particularly. Live- 
right V. Joint Committee, 279 F.Supp. 205, 215, 217 (M.D. 
Tenn. 1968). Finally, the requirement of strict definition 
of the subject under investigation is indispensable to en­
able first the subpoenaed witness and his counsel, and later 
the courts themselves, to determine the point of proper 
balance between investigative need and the privacy pro­
tected by the First Amendment. For all these reasons, 
indefiniteness in the scope of governmental inquiry has 
consistently been regarded as fatal to investigations in the 
First Amendment area. Watkins v. United States, 354 TJ.S.

^*E.g. Smith v. California, 361 U.S. 147, 151 (1959); Cramp 
V. Board of Public Instruction, 368 U.S. 278, 287-288 (1961) ; 
N.A.A.C.P. V. Button, 371 U.S. 415, 432-433 (1963) ; Ashton v. 
Kentucky, 384 U.S. 195, 200 (1966).



83

178 (1957); Sweezy v. New Hampshire, 354 U.S. 234 
(1957); Scull V. Virginia ex rel. Committee on Law Re­
form and Racial Activities, 359 U.S. 344 (1959); Liveright 
V. Joint Committee, supra.

And, once the subject of an investigation has been ade­
quately defined, the use of compulsory process is required 
to be confined to matters strictly relevant to that subject. 
Ordinarily, of course, the command that grand jury sub­
poenas seek only evidence relevant to the jury’s inquiry is 
administered with considerable elasticity. E.g., In re Grand 
Jury Subpoena Duces Tecum, 203 F.Supp. 575, 579 (S.D. 
N.Y. 1961). But that degree of tolerance may not be in­
dulged where inquiry touches First Amendment interests, 
for in these latter areas compulsory disclosure is forbidden 
unless it is “demonstrated to bear a crucial relation to a 
proper governmental interest or to be essential to the ful­
fillment of a proper governmental purpose.” Gibson v. 
Florida Legislative Investigation Committee, supra, 372 
U.S., at 549. See DeGregory v. Attorney General of New 
Hampshire, supra.

(2) It must affirmatively appear that the inquiry is likely 
to turn up material information, that is: (a) that there is 
some factual basis for pursuing the investigation, and (b) 
that there is reasonable ground to conclude that the partic­
ular witness subpoenaed has information material to it. 
In the First Amendment area, even relevant inquiries may 
not be pursued without some solid basis for belief that 
they will be productive. For example, Jordan v. Hutcheson, 
323 F.2d 597, 606 (4th Cir. 1963), condemned a legislative 
investigation which purported to inquire into certain crimi­
nal activities but also resulted in the disclosure of consti­
tutionally protected associations, saying that courts “can 
and should protect the activities of the plaintiffs . . .  in



84

maintaining the privacy of their First Amendment activi­
ties against irreparable injury unless and until there is a 
reasonably demonstrated factual basis for assuming that 
they are guilty of the offenses which the Committee is 
interested in investigating.”

“Of course, a legislative investigation—as any in­
vestigation—must proceed ‘step by step,’ . . ., but step 
by step or in totality, an adequate foundation for in­
quiry must be laid before proceeding in such a manner 
as will substantially intrude upon and severely curtail 
or inhibit constitutionally protected activities or seri­
ously interfere with similarly protected associational 
rights.” {Gibson v. Florida Legislative Investigation 
Committee, supra, 372 U.8., at 557.)

(3) The information sought must be unobtainable by 
means less destructive of First Amendment freedoms. This 
requirement derives from the pervasive First Amendment 
principle of the “narrowest effective means,” recognized in 
cases of compulsory disclosure of protected associations, 
e.g., Shelton v. Tucker, 364 U.S. 479, 488 (1960); Louisiana 
ex rel. Gremillion v. N.A.A.C.P., 366 U.S. 293, 296-297 
(1961), as in others, e.g., Elfbrandt v. Russell, 384 U.S. 
11, 18 (1966). Simply stated, the principle is:

“that a governmental purpose to control or prevent ac­
tivities constitutionally subject to state regulation may 
not be achieved by means ŵ hich sweep unnecessarily 
broadly and thereby invade the area of protected free­
doms. . . . [T]he power to regulate must be so exer­
cised as not, in attaining a permissible end, unduly to 
infringe the protected freedom.’ . . . ‘ . [Ejven 
though the governmental purpose be legitimate and 
substantial, that purpose cannot be pursued by means



85

that broadly stifle fundamental personal liberties when 
the end can be more narrowly achieved.’ ” {N.A.A.C.P. 
V. Alabama ex rel. Flowers, 377 Il.S. 288, 307-308
(1964).)

As applied to grand jury investigations, this principle leads 
plainly to the conclusion that the jury may not compel a 
newsman’s testimony, intruding into and threatening de­
struction of his confidential relationships, if it can find out 
what it wants to know from other sources that do not im­
plicate First Amendment concerns.*®

*® We think that Garland v. Torre, 259 P.2d 545 (2d Cir. 1958), 
recognizes this point. The ease arose out of a defamation action 
brought by Judy Garland against the Columbia Broadcasting Sys­
tem, predicated on the complaint that CBS had made libelous 
statements against Miss Garland and afSrmatively induced their 
publication in newspapers and elsewhere. A critical instance of 
the alleged defamation was a newspaper column by Marie Torre 
containing statements about Miss Garland attributed to a CBS 
“network executive.” In pretrial proceedings, the two CBS execu­
tives whom Miss Garland had named in her deposition as the likely 
sources of the Torre story were deposed and denied all knowledge 
of it. Counsel for Garland then deposed Marie Torre and inquired 
concerning her source; Miss Torre refused to answer, claiming a 
First Amendment privilege; and she was held in contempt.

The Second Circuit (per Mr. Justice Stewart), affirmed the con­
tempt commitment, but only after accepting “at the outset the 
hypothesis that compulsory disclosure of a journalist’s confidential 
sources of information may entail an abridgment of press freedom 
by imposing some limitation upon the availability of news.” 259 
P.2d, at 548. “What must be determined is whether the interest to 
be served by compelling the testimony of the witness in the present 
ease justifies some impairment of this First Amendment freedom.” 
{Ibid.) The court held that it did because the Torre testimony 
“went to the heart of the plaintiff’s claim,’' {id., at 550) in a case 
that was being prepared for trial. Torre was plainly the only 
available source of the information sought from her, and accord­
ingly the Second Circuit emphasized “that we are not dealing 
with a ease where the identity of the news source is of doubtful 
relevance or materiality” {id., at 549-550). The force of the Gar­
land court’s reservation is the more apparent with regard to grand 
jury proceedings, for grand juries inquire only to determine prob­
able cause; and they therefore have no compelling need for eumula-



86

These principles firmly sustain the decision of both 
Courts below that:

“When the exercise of the grand jury power of 
testimonial compulsion so necessary to the effective 
functioning of the court may impinge upon or repress 
First Amendment rights of freedom of speech, press 
and association, which centuries of experience have 
found to be indispensable 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 interest that 
cannot be served by alternative means.” (A. 93, 120- 
121.)

Neither court found it necessary—nor needs this Court— 
to “spell out the details of the Government’s burden.” (A. 
126.) Our own suggestions for the appropriate standards 
to be applied in determining “compelling and overriding

tiye evidence—evidence from more than one source—which, for a 
trial jury, might spell the dilference of persuasion.

Finally, Garland v. Torre appears to recognize—as we think it 
must consistently with Shelton v. Tucker, supra; Gilson v. Florida 
Legislative Investigation Committee, supra; and DeGregory v. A t­
torney General of New Hampshire, supra—that governmental at­
tempts to compel disclosure of a newsman’s confidential associations 
may sometimes be forbidden by the First Amendment even though 
the newsman’s evidence is sought under procedures and circum­
stances that meet the requirements which we have described in 
paragraphs (1), (2), and (3), in text supra. This is implicit in 
the Second Circuit’s approach of particularistic “balancing” of 
First Amendment freedoms against the justifications for compelled 
disclosure, and in the court’s recognition that Garland did not in­
volve “the use of judicial process to force a wholesale disclosure 
of a newspaper’s confidential sources of news” (259 F.2d, at 549). 
The proviso implies, at the least, a prohibition of compelling news­
men to make disclosures whose broadly destructive effect upon 
First Amendment freedoms palpably outweighs the value of the 
uses to which a government investigating body may put them. 
Cf. United Mine Workers v. Illinois State Bar Ass’n, 389 US 217 
(1967).



87

interest” in this context are set forth in the opinion of the 
Court of Appeals.*® We think that they are simple and 
workable, involve no appreciable “litigious interruption” 
(Br. 44) of grand jury investigations,*'' do not compromise 
necessary grand jury secrecy (particularly if, as we and 
the Court of Appeals have suggested, the “Government’s 
specification of need [is] . . . presented in cam,era to the 
District Court with [the witness] . . .  or his counsel pres­
ent” (A. 126 n. 12)), and are squarely supported by this 
Court’s legislative investigation cases just discussed. But, 
however that may be, decision of this present case does 
not require that the court choose between those precise 
standards and others that have been suggested.** For under

*® “ ‘Specifically, we contend that, before it may compel a news­
man 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 reasonable grounds to believe that the journalist has informa­
tion, (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 in­
terests involved in compelling the journalist’s testimony.’ ” (A 126 
n. 11.)

*' Any sort of judicial control of the grand jury necessarily in­
volves some degree of “litigious interruption” of the jury’s proc­
esses. But to deny judicial control on this account, and' thereby 
leave the grand jury unconstrained to make its own litigious inter­
ruption of the First Amendment seems to us to involve a strange 
inversion of values.

** See the writings collected in note 64 supra. See also People 
V. Dohrn et al., Circuit Court of Cook County, Criminal Division, 
Indictment No. 69-3808, Decision on Motion to Quash Subpoenas’ 
May 20, 1970, pp. 8-9. In Dohrn, Judge Garippo ruled that a 
subpoena to a news medium should not issue routinely, without 
prior judicial approval, but only upon application to the court



88

any conceivable standard of investigative need, let alone 
compelling investigative need, the Government’s showing 
here is markedly deficient.

We have set out the Government’s showing—and both 
lower courts’ appraisal of its insufficiency—in detail at 
pp. 30-41 supra. In summary, the Government has re­
fused to be specific concerning even the nature of the 
federal crimes with which the grand jury is concerned. 
It has persisted in firing off a veritable blunderbuss of 
criminal charges, ranging from Presidential assassination 
to mail fraud, packed dovni with unidentified “other stat­
utes.” With a single exception, it has not shown any reason 
to suspect that any Black Panther, or anyone else, has 
committed any specific violation of any of these statutes. 
With the same exception, it has failed entirely to identify 
any particular event, transaction, occurrence, happening— 
or series or range of events, transactions, occurrences or

after notice to the news medium sought to be subpoenaed. Before 
such a subpoena would be approved:

“various things must be shown in order that the First Amend­
ment rights of the press not be infringed. Number one, it 
must be shown that there is probable cause to believe that 
the party seeking the evidence—that there is probable cause 
for that party to believe that there is relevant information in 
the possession of the particular news medium sought to be 
subpoenaed; number two, there must be a showing that the 
use of the subpoena is the only method available for obtaining 
that evidence; and, number three, there must be a showing 
that the evidence is so important that the non-production of 
that evidence would cause a miscarriage of justice.”

This showing is to be required without regard to any specific claim 
of confidentiality of associations or news sources; the assertion 
“that there is a confidential informant” is an additional one that 
the subpoenaed newsman may raise at the pre-subpoena hearing, 
“and at that time it must be determined whether or not the non­
disclosure of this confidential informant outweighs the necessity 
for his production.” Id., at pp. 9-10.



89

happenings—that it may be investigating/® The one ex­
ception is David Hilliard’s Moratorium Day speech and its 
Black Panther reprints, concerning which (1) Mr. Hil­
liard has already been indicted, (2) the Government is al­
ready fully informed from original sources, and (3) there 
is not the vaguest, most vagrant reason to believe that 
Earl Caldwell knows anything.

In this entire record, there is not the slightest showing 
of grounds for belief that Mr. Caldwell may have informa­
tion concerning any violation of, attempt to violate, or 
conspiracy to violate, any federal criminal law, by anyone. 
It does appear that he has talked to Black Panthers, and 
that some of the things which they have said to him have 
included statements of their revolutionary principles. But 
the Black Panthers cry Revolution daily from the roof­
tops, and the Government’s files (as shown herein) are 
full of identical statements, direct from Black Panther 
origins. As to these matters— which, in any event, demon­
strate dissidence but not criminality—the Government ob­
viously has alternative sources of information which make 
its pursuit of Mr. Caldwell altogether unnecessary.

The question remains whether, upon this record, the 
District Court’s protective order would “adequately pro­
tect the First Amendment freedoms at stake.” (A. 124.) 
After its careful study of the “affidavits on file [v/hich] 
cast considerable light on the process of gathering news

We do not think that the Government can evade the necessity 
for such a showing by invoking the talismanic concept of “grand 
jury secrecy.” Notably, throughout these proceedings, the Govern­
ment has never suggested its need or desire for the obvious course 
of offering its showing in chambers. While Mr. Caldwell would 
strenuously oppose any unilateral, non-adversary proceedings in 
camera in a matter of this sort, his counsel would, of course, co­
operate fully in in-chambers proceedings and respect any direc­
tives of the District Court that those proceedings be kept confi­
dential.



90

about militant organizations” (A. 122), the Court of Ap­
peals concluded that it would not. The Government’s at­
tack on this conclusion as “mere speculation” (Br. 29) is 
unfair to the Court of Appeals, the record, and common 
experience.

As a newsman, Earl Caldwell maintains long-nurtured, 
delicate professional relationships of trust and confidence 
with Black Panther Party members and other militants. 
He is one of very few newsmen who, through such relation­
ships, provide a vital informational link between the Mili­
tant Left and the general public. Those relationships, and 
the information and understanding conveyed within them, 
are indispensable to the ability of the national news media 
to supply informed, fair and balanced coverage of the views 
and activities of militant groups. (See pp. 4-5, 19-30 
supra.) “The relationship depends upon a trust and con­
fidence that is constantly subject to reexamination and that 
depends in turn on actual knowledge of how news and in­
formation imparted have been handled and on continuing 
reassurance that the handling has been discreet.” (A. 
123.)®“

We think that we may properly put aside the Govern­
ment’s deprecatory characterization of the militants’ need 
for such continuing reassurance as paranoid and “un­
founded” (Br. 42). There is doubtless considerable diffi­
culty in identifying the line of paranoia in the case of 
groups like the Black Panthers, under constant and mas­
sive investigation by grand juries which, as the Govern­
ment tells us, “need establish no factual basis for commenc­
ing an investigation, and can pursue rumors which further 
investigation may prove groundless” (Br. 43). Fortunately 
for the First Amendment, this Court has never entered

See, e.g., A. 17-19, 22-23, 24-25, 27, 37-38, 39-40, 41-42, 44-45.



91

the bog of labeling, psychoanalyzing, or putting political 
values upon the motive springs of private conduct which, 
when predictably triggered by governmental action, 
threatens drastic harm to vital constitutional interests. E.g., 
N.A.A.C.P. V. Alabama ex rel. Patterson, 357 U.S. 449, 
462-463 (1958); Bates v. City of Little Rock, 361 U.S. 516, 
524 (1960); Shelton v. Tucker, 364 U.S. 479, 486-487 (1960); 
Louisiana ex rel. Gremillion v. N.A.A.C.P., 366 U.S. 293, 
296 (1961); and see Joint Anti-Fascist Refugee Committee 
V. McGrath, 341 U.S. 123 (1951); Bantam Books, Inc. v. 
Sullivan, 372 U.S. 58, 64 n. 6 (1963); Talley v. California, 
362 U.S. 60, 64 (1960); School District of Ahington Town­
ship V. Schempp, 374 U.S. 203, 208-209 n. 3 (1963); Ander­
son V. Martin, 375 U.S. 399, 402-403 (1964). It has been 
enough that the action is realistically predictable. And 
here, as the Court of Appeals found, it is a “human reaction 
as reasonable to expect as that a client will leave his lawyer 
when his confidence is shaken.” (A. 124.)

From the point of view of the Government, no doubt, 
Earl Caldwell appears to be leagued with the Panthers in 
some sort of unholy alliance of great and indestructible 
tenacity. This assumption is reflected both in the Govern­
ment’s view of the facts—for example, its suggestion that 
there is “no danger” that the Panthers could believe that 
Mr. Caldwell is willing to talk to the Government about 
them (Br. 21 n. 22)—and in its attainder of Mr. Caldwell’s 
First Amendment interests by the supposed unjustifiability 
of Panther distrust and fear of Government investigations 
{e.g., Br. 41-42). This very perspective is, we think, a 
sobering one. For, in fact, Mr. Caldwell is no more on the 
Panthers’ side of the fence than on the Government’s. His 
role is that of a neutral—committed to no interest but the 
interest of a free press (A. 17-19)—and his sole objective 
in this litigation is to survive in that role. If the Govern­
ment does not understand this point, it is surely asking a



92

great deal to suppose that the Panthers do, or that they 
will share the Government’s calm assurance of Mr. Cald­
well’s unshakeability before the grand jury. Eather, as the 
Court of Appeals concluded: “Militant groups might very 
understandably fear that, under the pressure of examina­
tion before a Grand Jury, the witness may fail to protect 
their confidences with the same sure judgment he invokes 
in the normal course of his professional work.” (A. 123.)

The fact of the matter is that—as those who have tried 
to establish journalistic relations with militant sources 
averred beloAV (see note 54 supra)—if Mr. Caldwell is com­
pelled to appear behind the closed doors of a federal grand 
jury investigating the Black Panthers, his relationships 
with the Panthers and with other militants will be de­
stroyed. Because of the secrecy of the grand jury proceed­
ings, no one outside the jury room can ever know what 
questions were asked or answered, what confidences dis­
closed. No one can know to what extent Mr. Caldwell has 
been made an involuntary government informer, his knowl­
edge of the Panthers used against them. Of course, if Mr. 
Caldwell refuses to answer various questions, and if the 
Government then chooses to press the matter further, the 
transcript of the grand jury proceedings, in whole or in 
part, may later be disclosed in open court. But if the Gov­
ernment does not press the matter, or if it discloses only 
portions of the transcript, Mr. Caldwell’s confidants cannot 
kow that they were not betrayed. The irony of Mr. Cald­
well’s predicament is precisely that the less he knows which 
is useful to the grand jury, and the more he persuades the 
grand jury that he knows nothing, the less likely the Gov­
ernment is to pursue him in open court, and the more com­
pletely he will be destroyed.

It is for these reasons that the Court of Appeals found 
factually that Mr. Caldwell’s mere appearance before the



93

grand jury would irreparably damage his vital professional 
relationships with the militants. Doubtless, the District 
Court’s protective order, permitting Mr. Caldwell to refuse 
to disclose confidential information and associations, pro­
vides some protection in this regard. But it plainly “does 
not, by itself, adequately protect the First Amendment 
freedoms at stake in this area.” (A. 124.) Even to lawyers 
who are not privy to the grand jury’s interrogation of Mr. 
Caldwell, the precise scope of protection given by the order 
cannot be clear; and, obviously,, the Black Panthers are 
not lawyers. Inside the grand jury room, enforcement of the 
District Court’s order is left in the hands of interrogating 
Government counsel, who strenuously opposed that order 
and cannot realistically be expected to interpret it expan­
sively. Undefended by his own counsel,” Mr. Caldwell— 
who, also, is not a lawyer—must contend with skilled 
Government questioning in his efforts to keep his con­
fidences intact. Perhaps he will succeed; but, if he does, 
no one will ever know that he has. All that the militants 
who have trusted him can know is that he testified before 
the grand jury and— unless the Government pursues him 
further—that he satisfied the grand jury. Doubts and law­
yers’ niceties are no basis for a relationship of trust. Mr. 
Caldwell will have been made unsafe, and he will be trusted 
no longer.

But were these dangers less and less predictable than 
they are, we submit that they would be too great. For, 
upon this record, they are purposeless, unnecessary dan­
gers which it would be heedless of the Constitution to allow.

Judge Zirpoli’s protective order permits Mr. Caldwell to con­
sult with his attorney during his interrogation by the grand jury, 
but, of course, his counsel is not permitted to accompany Mr. Cald­
well into the grand jury room. (A. 96, 105.) Under these circum­
stances, the Government’s confidence in the ability of counsel to 
protect Mr. Caldwell (Br. 41) is unreal.



94

This is a case in which, it bears repeating, the Court of 
Appeals properly found that Mr. Caldwell’s “response to 
the subpoena would be a barren performance—one of no 
benefit to the Grand Jury” (A. 125), because he has no non- 
confidential information that could conceivably further the 
jury’s investigation. See pp. 61-65 supra. “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 sub­
stance in competition with the First Amendment freedoms 
that are jeopardized.” (A. 125.) “To destroy [Earl Cald­
well’s] . . . capacity as newsgatherer for such a return 
hardly makes sense.” (Ibid.)

V.

Mr. Caldwell Has Standing to Contest the Subpoena 
on the Ground That It Was Based Upon Violation of 
His Fourth Amendment Rights.

An alternative ground®  ̂supports the decision of the Court 
of Appeals. From the outset of these proceedings, Mr. 
Caldwell has sought a hearing under Alderman v. United 
States, 394 U.S. 165 (1969), to determine whether the sub­
poenas served upon him were tainted by unconstitutional 
electronic monitoring of his interviews with his Black Pan­
ther confidants. Without denying monitoring, unconstitu­
tionality or taint, the Government opposed an Alderman 
hearing in the District Court on the sole ground that Mr. 
Caldwell lacked standing to request one. Judge Zirpoli 
denied a hearing solely on this ground before holding Mr. 
Caldwell in contempt of court for bis refusal to comply 
with the latest of the subpoenas. (See pp. 41-42 supra.)

See Dandridge v. Williams, 397 U.S. 471, 475-476 n. 6 (1970), 
and cases cited.



95

But Mr. Caldwell plainly has the requisite standing un­
der Silverfhorne Lumber Co. v. United States, 251 U.S. 385 
(1920). That case settled that a grand jury witness could 
not be held in contempt for failure to comply with a sub­
poena duces tecum issued on the basis of leads obtained 
in violation of his Fourth Amendment rights.*® Justice 
Holmes’ opinion for the Court leaves no ground for dis­
tinction between a subpoena duces tecum and one ad testifi- 
candu,m;^  ̂nor does it turn the result upon the consideration 
that Mr. Silverthorne was himself the subject of investiga­
tion by the grand jury. For it is a commonplace that poten­
tial defendants have no special stature in federal grand jury 
proceedings; until indicted, they stand as do all other wit­
nesses.** So, under Silverthorne, Mr. Caldwell had a right 
to resist constitutionally tainted grand jury process; and 
under Alderman, he was entitled to a judicial inquiry to 
determine whether that process was in fact tainted.

This conclusion is confirmed by the overwhelming showing 
made by Mr. Caldwell on this record that, if called to testify 
before the grand jury, he will be entirely destroyed as a 
journalist. Whether or not that harm entitled him to First 
Amendment protection (as we have urged above that it 
does), it surely gives him ample standing to complain that 
the compulsory process which inflicts such a drastic conse-

Subsequent decisions make plain that S ilv e r th o r n e  forbids any 
use of illegally obtained leads to support legal process. W o n g  S u n  
V. U n ite d  S ta te s , 371 U.S. 471 (1963); A ld e r m a n  v. U n ite d  S ta te s ,  
394 U.S. 165, 177 (1969) and see, e.g.. H a ir  v. U n ite d  S ta te s , 289 
P.2d 894 (D.C.Cir. 1961).

It is now settled that the Fourth Amendment equally forbids 
Government use of illegally monitored oral communications and 
illegally seized documents. S ilv e r m a n  v. U n ite d  S ta te s , 365 U.S. 
505 (1961) ; K a tz  v. U n ite d  S ta te s , 389 U.S. 347 (1967).

** See e.g., U n ite d  S ta te s  v. W o l f  son , 405 F.2d 779, 784-785 (2d 
Cir. 1968) ; U n ite d  S ta te s  v. L e v in s o n , 405 F.2d 971, 979-980 (6th 
Cir. 1968).



96

quence upon him was produced by violation of his Fourth 
Amendment rights.

But if the point were a dubious one at the time it con­
fronted Judge Zirpoli, it is so no longer. Congress has now 
settled it. By 18 U.S.C. §3504, enacted shortly prior to the 
decision of the Court of Appeals,'’® Congress has specified 
a procedure for litigation of Fourth Amendment electronic 
eavesdropping claims made by a “party aggrieved that evi­
dence is inadmissible because it . . . was obtained by the 
exploitation of an unlawful act,” in any proceeding before, 
inter alia, a “grand jury.” See App. A., p. 11a infra. Since 
the explicit application of §3504 to grand juries would be 
meaningless if grand jury witnesses did not qualify as 
parties aggrieved when complaining of unconstitutional 
electronic eavesdropping upon their conversations, and 
since Mr. Caldwell has repeatedly made and duly preserved 
the claim that his testimony would be inadmissible on the 
precise ground specified in §3504, he is entitled to the bene­
fit of the statutory procedure.®’ He has not had it, and 
his appearance before the grand jury under the challenged 
subpoena cannot therefore be compelled.

_ Under settled principles, such procedural legislation applies to 
litigation pending at the time of its passage. E .g ., H o a d le y  v. S a n  
F ra n c isc o , 94 U.S. 4 (1876) ; E x  p a r te  C o lle tt , 337 U.S. 55 (1949) ; 
B r u n e r  v. U n ite d  S ta te s , 343 U.S. 112 (1952) ; G eorg ia  v. R a c h e l  
384 U.S. 780 (1966), a jf’g  342 P.2d 336 (5th Cir. 1965), re h e a r in g  
d e n ie d , 343 F.2d 909 (5th Cir. 1965).

"T he procedure refines, and in presently immaterial details 
modifies, that prescribed by the A ld e r m a n  opinion, su p ra .



97

CONCLUSION

The judgment of the Court of Appeals should be affirmed.

Eespectfully submitted,

J ack Greenberg 
J ames M. N abeit III 
C harles S t e ph e n  R alston 

10 Columbus Circle 
New York, New York 10019

W illiam  B e n n e t t  T urner  
12 Geary Street
Sail Francisco, California 94108

A n th o n y  G. A msterdam

Stanford University Law School 
Stanford, California 94305

Attorneys for Respondent



APPENDICES



APPENDIX A

Statutory Provisions

18 U.S.C. § 23 1 . Civil d isorders

(a) (1) Whoever teaches or demonstrates to any other 
person the use, application, or making of any firearm or 
explosive or incendiary device, or technique capable of 
causing injury or death to persons, knowing or having 
reason to know or intending that the same will be unlaw­
fully employed for use in, or in furtherance of, a civil dis­
order which may in any way or degree obstruct, delay, or 
adversely affect commerce or the movement of any article 
or commodity in commerce or the conduct or performance 
of any federally protected function; or

(2) Whoever transports or manufactures for transporta­
tion in commerce any firearm, or explosive or incendiary 
device, knowing or having reason to know or intending that 
the same will be used unlawfully in furtherance of a civil 
disorder; or

(3) Whoever commits or attempts to commit any act to 
obstruct, impede, or interfere with any fireman or law 
enforcement officer lawfully engaged in the lawful perfor­
mance of his official duties incident to and during the com­
mission of a civil disorder which in any way or degree 
obstructs, delays, or adversely affects commerce or the 
movement of any article or commodity in commerce or the 
conduct or performance of any federally protected func­
tion—

Shall be fined not more than $10,000 or imprisoned not 
more than five years, or both.

la



2a

Appendix A

(b) Nothing contained in this section shall make unlaw­
ful any act of any law enforcement officer which is per­
formed in the lawful performance of his official duties.
Added Pub.L. 90-284, Title X, § 1002(a), Apr. 11, 1968, 82 
Stat. 90.

18 U.S.C. § 2 3 2 .  D efinitions

For purposes of this chapter;
(1) The term “civil disorder” means any public distur­

bance involving acts of violence by assemblages of three 
or more persons, which causes an immediate danger of or 
results in damage or injury to the property or person of 
any other individual.

(2) The term “commerce” means commerce (A) between 
any State or the District of Columbia and any place outside 
thereof; (B) between points within any State or the District 
of Columbia, but through any place outside thereof; or (C) 
wholly within the District of Columbia,.

(3) The term “federally protected function” means any 
function, operation, or action carried out, under the laws 
of the United States, by any department, agency, or instru­
mentality of the United States or by an officer or employee 
thereof; and such term shall specifically include, but not 
be limited to, the collection and distribution of the United 
States mails.

(4) The term “firearm” means any weapon which is 
designed to or may readily be converted to expel any pro­
jectile by the action of an explosive; or the frame or 
receiver of any such weapon.

(5) The term “explosive or incendiary device” means 
(A) dynamite and all other forms of high explosives, (B)



3a

Appendix A

any explosive bomb, grenade, missile, or similar device, 
and (C) any incendiary bomb or grenade, fire bomb, or 
similar device, including any device which (i) consists of or 
includes a breakable container including a flammable liquid 
or compound, and a wick composed of any material which, 
when ig-nited, is capable of igniting such flammable liquid 
or compound, and (ii) can be carried or thrown by one 
individual acting alone.

(6) The term “fireman” means any member of a fire de­
partment (including a volunteer fire department) of any 
State, any political subdivision of a State, or the District 
of Columbia.

(7) The term “law enforcement officer” means any officer 
or employee of the United States, any State, any political 
subdivision of a State, or the District of Columbia, while 
engaged in the enforcement or prosecution of any of the 
criminal laws of the United States, a State, any political 
subdivision of a State, or the District of Columbia; and 
such term shall specifically include, but shall not be limited 
to, members of the National Guard, as defined in section 
101(9) of title 10, United States Code, members of the 
organized militia of any State, or territory of the United 
States, the Commonwealth of Puerto Rico, or the District 
of Columbia, not included within the definition of National 
Guard as defined by such section 101(9), and members of 
the Armed Forces of the United States, while engaged 
in suppressing acts of violence or restoring law and order 
during a civil disorder.

Added Pub.L. 90-284, Title X, § 1002(a), Apr. 11, 1968, 82 
Stat. 91.



4a

Appendix A

18 U.S.C. § 871. Threats against President
and successors to the Presidency

(a) Whoever knowingly and willfully deposits for con­
veyance in the mail or for a delivery from any post office or 
by any letter carrier any letter, paper, writing, print, mis­
sive, or document containing any threat to take the life of or 
to inflict bodily harm upon the President of the United 
States, the President-elect, the Vice President or other offi­
cer next in the order of succession to the office of President 
of the United States, or the Vice President-elect, or know­
ingly and willfully otherwise makes any such threat against 
the President, President-elect, Vice President or other officer 
next in the order of succession to the office of President, or 
Vice President-elect, shall be fined not more than $1,000 or 
imprisoned not more than five years, or both.

(b) The terms “President-elect” and “Vice President­
elect” as used in this section shall mean such persons as are 
the apparent successful candidates for the offices of Presi­
dent and Vice President, respectively, as ascertained from 
the results of the general elections held to determine the 
electors of President and Vice President in accordance with 
title 3, United States Code, sections 1 and 2. The phrase 
“other officer next in the order of succession to the office of 
President” as used in this section shall mean the person 
next in the order of succession to act as President in ac­
cordance with title 3, United States Code, sections 19 and 20.
As amended June 1, 1955, c. 115, §1, 69 Stat. 80; Oct. 15, 
1962, Pub. L. 87-829, § 1, 76 Stat. 956.

18 U.S.C. § 1341 . Frauds and swindles 

(prior to August 12, 1970)
Whoever, having devised or intending to devise any 

scheme or artifice to defraud, or for obtaining money or



5a

Appendix A.

property by means of false or fraudulent pretenses, repre­
sentations, or promises, or to sell, dispose of, loan, excliange, 
alter, give away, distribute, supply, or furnish or procure 
for unlawful use any counterfeit or spurious coin, obliga­
tion, security, or other article, or anything represented to 
be or intimated or held out to be such counterfeit or spurious 
article, for the purpose of executing such scheme or artifice 
or attempting so to do, places in any post office or authorized 
depository for mail matter, any matter or thing whatever 
to be sent or delivered by the Post Office Department, or 
takes or receives therefrom, any such matter or thing, or 
knowingly causes to be delivered by mail according to the 
direction thereon, or at the place at which it is directed to 
be delivered by the person to whom it is addressed, any 
such matter or thing, shall be fined not more than $1,000 or 
imprisoned not more than five years, or both.
As amended May 24, 1949, c. 139, § 34, 63 Stat. 94.

18 U.S.C. § 1341. Frauds and swindles 

(as amended August 12, 1970)
Whoever, having devised or intending to devise any 

scheme or artifice to defraud, or for obtaining money or 
property by means of false or fraudulent pretenses, rep­
resentations, or promises, or to sell, dispose of, loan, ex­
change, alter, give away, distribute, supply, or furnish or 
procure for unlawful use any counterfeit or spurious coin, 
obligation, security, or other article, or anything repre­
sented to be or intimated or held out to be such counter­
feit or spurious article, for the purpose of executing such 
scheme or artifice or attempting so to do, places in any post 
office or authorized depository for mail matter, any matter 
or thing whatever to be sent or delivered by the Postal



6a

Appendix A

Service, or takes or receives therefrom, any such matter 
or thing, or knowingly causes to be delivered by mail ac­
cording to the direction thereon, or at the place at which 
it is directed to be delivered by the person to whom it is 
addressed, any such matter or thing, shall be fined not more 
than $1,000 or imprisoned not more than five years, or both.
As amended Aug. 12, 1970, Pub.L. 91-375, §6(j) (11), 84 
Stat. 778.

18 U.S.C. § 1751 . Presidential assassination, 
kidnaping, and assault; penalties

(a) Whoever kills any individual who is the President 
of the United States, the President-elect, the Vice Pres­
ident, or, if there is no Vice President, the officer next in the 
order of succession to the office of President of the United 
States, the Vice-President-elect, or any individual who is 
acting as President under the Constitution and laws of the 
United States, shall be punished as provided by sections 
1111 and 1112 of this title.

(b) Whoever kidnaps any individual designated in sub­
section (a) of this section shall be punished (1) by impris­
onment for any term of years or for life, or (2) by death 
or imprisonment for any term of years or for life, if death 
results to such individual.

(c) Whoever attempts to kill or kidnap any individual 
designated in subsection (a) of this section shall be 
punished by imprisonment for any term of years or for 
life.

(d) If twm or more persons conspire to kill or kidnap 
any individual designated in subsection (a) of this section 
and one or more of such persons do any act to effect the



Appendix A

object of tlie conspiracy, each shall be pniiished (1) by 
imprisonment for any term of years or for life, or (2) by 
death or imprisonment for any term of years or for life, 
if death results to such individual.

(e) Whoever assaults any person designated in sub­
section (a) of this section shall be fined not more than 
$10,000 or imprisoned not more than 10 years, or both.

(f) The terms “President-elect” and “Vice-President­
elect” as used in this section shall mean such persons as 
are the apparent succcessful candidates for the offices of 
President and Vice President, respectively, as ascertained 
from the results of the general elections held to determine 
the electors of President and Vice President in accordance 
with title 3, United States Code, sections 1 and 2.

(g) The Attorney General of the United States, in his 
discretion, is authorized to pay an amount not to exceed 
$100,000 for information and services concerning a viola­
tion of this section. Any officer or employee of the United 
States or of any State or local government who furnishes 
information or renders service in the performance of his 
official duties shall not be eligible for payment under this 
subsection.

(h) If Federal investigative or prosecutive jurisdiction 
is asserted for a violation of this section, such assertion 
shall suspend the exercise of jurisdiction by a State or local 
authority, under any applicable State or local law, until 
Federal action is terminated.

(i) Violations of this section shall be investigated by the 
Federal Bureau of Investigation. Assistance may be re­
quested from any Federal, State, or local agency, including



8a

Appendix A

the Army, Navy, and Air Force, any statute, rule, or regu­
lation to the contrary notwithstanding.
Added Pub.L. 89-141, § 1, Aug. 28, 1965, 79 Stat. 580.

18 U.S.C. § 2 1 0 1 . Riots

(a) (1) Whoever travels in interstate or foreign com­
merce or uses any facility of interstate or foreign com­
merce, including, but not limited to, the mail, telegraph, 
telephone, radio, or television, with intent—

(A) to incite a riot; or

(B) to organize, promote, encourage, participate in, 
or carry on a riot; or

(C) to commit any act of violence in furtherance of 
a riot; or

(D) to aid or abet any person in inciting or par­
ticipating in or carrying on a riot or committing any 
act of violence in furtherance of a rio t;

and who either during the course of any such travel or use 
or thereafter performs or attempts to perform any other 
overt act for any purpose specified in subparagraph (A), 
(B), (C), or (D) of this paragraph—

Shall be fined not more than $10,000, or imprisoned not 
more than five years, or both.

(b) In any prosecution under this section, proof that a 
defendant engaged or attempted to engage in one or more of 
the overt acts described in subparagraph (A), (B), (0), or 
(B) of paragraph (1) of subsection (a) and (1) has traveled 
in interstate or foreign commerce, or (2) has use of or used 
any facility of interstate or foreign commerce, including



9a

Appendix A

but not limited to, mail, telegraph, telephone, radio, or tele­
vision, to communicate with or broadcast to any person or 
group of persons prior to such overt acts, such travel or 
use shall be admissible proof to establish that such defen­
dant traveled in or used such facility of interstate or foreign 
eorranerce.

(c) A judgment of conviction or acquittal on the merits 
under the laws of any State shall be a bar to any prosecution 
hereunder for the same act or acts.

(d) Whenever, in the opinion of the Attorney General or 
of the appropriate officer of the Department of Justice 
charged by law or under the instructions of the Attorney 
General with authority to act, any person shall have vio­
lated this chapter, the Department shall proceed as speedily 
as possible with a prosecution of such person hereunder 
and with any appeal which may lie from any decision ad­
verse to the Government resulting from such prosecution; 
or in the alternative shall report in writing, to the respec­
tive Houses of the Congress, the Department’s reason for 
not so proceeding.

(e) Nothing contained in this section shall be construed 
to make it unlawful for any person to travel in, or use any 
facility of, interstate or foreign commerce for the purpose 
of pursuing the legitimate objectives of organized labor, 
through orderly and lawful means.

(f) Nothing in this section shall be construed as indicat­
ing an intent on the part of Congress to prevent any State, 
any possession or Commonwealth of the United States, or 
the District of Columbia, from exercising jurisdiction over 
any offense over which it would have jurisdiction in the 
absence of this section; nor shall anything in this section 
be construed as depriving State and local law enforcement



10a

Appendix A

authorities of responsibility for prosecuting acts that may 
be violations of this section and that are violations of State 
and local law.

Added Pub.L. 90-284, Title I, § 104(a), Apr. 11, 1968, 82 
Stat. 75.

1 8  U.S.C. § 2 1 0 2 . D efin itions

(a) As used in this chapter, the term “riot” means a 
public disturbance involving (1) an act or acts of violence 
by one or more persons part of an assemblage of three or 
more persons, which act or acts shall constitute a clear and 
present danger of, or shall result in, damage or injury to 
the property of any other person or to the person of any 
other individual or (2) a threat or threats of the commis­
sion of an act or acts of violence by one or more persons 
part of an assemblage of three or more persons having, 
individually or collectively, the ability of immediate exe­
cution of such threat or threats, where the performance of 
the threatened act or acts of violence would constitute a 
clear and present danger of, or would result in, damage or 
injury to the property of any other person or to the per­
son of any other individual.

(b) As used in this chapter, the term “to incite a riot”, 
or “to organize, promote, encourage, participate in, or 
carry on a riot”, includes, but is not limited to, urging 
or instigating other persons to riot, but shall not be deemed 
to mean the mere oral or written (1) advocacy of ideas or
(2) expression of belief, not involving advocacy of any act 
or acts of violence or assertion of the rightness of, or the 
right to commit, any such act or acts.
Added Pub.L. 90-284, Title I, § 104(a), Apr. 11, 1968, 82 
Stat. 76.



11a

Appendix A

18 U.S.C. § 3 5 0 4 . L itigation concerning  
sources o f  evidence

(a) In any trial, hearing, or other proceeding in or be­
fore any court, grand jury, department, officer, agency, 
regulatory body, or other authority of the United States—

(1) upon a claim by a party aggrieved that evidence 
is inadmissible because it is the primary product of 
an unlawful act or because it was obtained by the ex­
ploitation of an unlawful act, the opponent of the claim 
shall affirm or deny the occurrence of the alleged un­
lawful act;

(2) disclosure of information for a determination if 
evidence is inadmissible because it is the primary 
product of an unlawful act occurring prior to June 19, 
1968, or because it was obtained by the exploitation of 
an unlawful act occurring prior to June 19, 1968, shall 
not be required unless such information may be rele­
vant to a pending claim of such inadmissibility; and

(3) no claim shall be considered that evidence of an 
event is inadmissible on the ground that such evidence 
was obtained by the exploitation of an unlawful act 
occurring prior to June 19, 1968, if such event oc­
curred more than five years after such allegedly unlaw­
ful act.

(b) As used in this section “unlawful act” means any act 
the use of any electronic, mechanical, or other device (as 
defined in section 2510(5) of this title) in violation of the 
Constitution or laws of the United States or any regula­
tion or standard promulgated pursuant thereto.
Added Pub.L. 91-452, Title VII, § 702(a), Oct. 15, 1970, 84 
Stat. 935.



lb

APPENDIX B

UNITED STATES DEPARTMENT OF JUSTICE 
MEMORANDUM NO. 692

D epa rtm en t  of J u stice ,

Washington, D.C., September 2, 1970.
Memo No. 692

To A ll  U nited  S tates A ttorneys

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 Honorable John N. 
Mitchell, Attorney General of the United States, before the 
House of Delegates, American Bar Association, at St. 
Louis, Missouri, on August 10, 1970.

"Wil l  W ilson ,
Assistant Attorney General,

Criminal Division.

F irst: 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 weigh 
that limiting effect against the public interest to be served 
in the fair administration of justice.

Second: The Department of Justice does not consider 
the press “an investigative arm of the government.” 
Therefore, all reasonable attempts should be made to 
obtain information from non-press sources before there 
is any consideration of subpoenaing the press.



2b

Appendix B

Third: It 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 negotiations 
should attempt to accommodate the interests of the grand 
jury with the interests of the news media.

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

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

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

Fifth: In requesting the Attorney General’s authoriza­
tion 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 estab­
lishing guilt or innocence. The subpoena should not be 
used to obtain peripheral, non-essential or speculative 
information.



3b

Appendix B

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

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

E. Great caution should be observed in requesting sub­
poena anthorization by the Attorney General for unpub­
lished information, or where an orthodox First Amend­
ment defense is raised or where a serious claim of 
confidentiality is alleged.

F. Even subpoena authorization requests for publicly 
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 possible, 
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 reason­
able and timely notice of the demand for documents.

These are general rules designed to cover the great 
majority of cases. It must always be remembered that 
emergencies and other unusual situations may develop 
where a snbpoena request to the Attorney General may be 
submitted which does not exactly conform to these guide­
lines.



Ic

APPENDIX C

Excerpts from the Government’s Brief in the 
Court of Appeals Below

[6] ARGUMENT

P bblim ixary  S tatem ent—
T h e  N ature oe t h e  Question  B efore T h is  Court

It is very important at the outset to note that the issue 
presently before the Court is a very narrow one—whether 
a newspaperman who has written an article [7] for publi­
cation is, by virtue of his calling, immune from the necessity 
of appearing before the grand jury at all. Other questions 
lurk in the background but they are not here at this time. 
The district court ruled that while appellant had to appear 
before the grand jury, he did not have to disclose any in­
formation acquired under the assurance that either the 
information or its source would be kept confidential, unless 
the government could make a convincing showing of the 
need for such information. The government is of the view 
that the order unduly limits the power of the grand 
jury, both as a matter of substantive law® and of pro-

“ The claim that a newspaperman may decline to reveal his con­
fidential sources of information has not been recognized in the 
absence of statute. See G a rla n d  v. T o rre , 259 P. 2d 545 (C.A. 2), 
certiorari denied, 358 U.S. 910. S ta te  v. B u c h a n a n , 436 P. 2d 729 
(Ore.), certiorari denied, 392 U.S. 905; I n  re  O ood fO der’s A p p e a l ,  
45 Hawaii 317, 367 P. 2d 472; C le in  v. S ta te , 52 So. 2d 117 (F la.); 
P eo p le  ex  re l. M o o n ey  v. N e w  Y o r k  C o u n ty , 269 N.Y. 291, 199 
N.B. 415; R o se n b e rg  v. C arro ll, 99 P. Supp. 629 (S.D. N.Y.) ; 
B r e w s te r  v. B o s to n  H e r a ld -T r a v e le r  C orp ., 20 P.R.D. 416 (D. Mass. 
1957) ; I n  re  W a y n e , 4 Hawaii Dist. 475; Annotation 7 A.L.R. 3d 
591. As the late Professor Chafee, no foe of press freedoms, re­
ported some twenty-three years ago: “The law does not now recog­
nize any privilege in a reporter, radio commentator, etc., to refuse 
to aid the administration of justice by telling any relevant fact 
within his personal knowledge. The law ought not to be changed 
so as to confer this novel privilege.” 2 Chafee, G o v e rn m e n t (& M ass  
C o m m u n ic a tio n s , 495-499 (1947).



2c

Appendix C

cedure.* Nevertheless, the government did [8] not seek 
review of that order by appeal or mandamus because it 
felt that the Court should not be required to decide con­
stitutional problems divorced from a concrete setting. The 
government and the grand jury are not interested in ab­
stract questions but in matters relevant to the particular 
grand jury investigation. Since Mr. Caldwell had made 
some very specific statements for publication—obviously 
not confidential—it seemed reasonable to believe that the 
issue whether appellant should reveal confidential infor­
mation or confidential sources might never arise at all.

Appellant, however, has chosen to assert under the First 
Amendment a far broader privilege than the right to keep 
confidential non-published information and sources. He as­
serts that a reporter, by virtue of being such, does not 
have to appear before the grand jury at all; that he has a 
right to refuse to answer questions by the grand jury even 
about what he wrote for publication intending that it be 
read by thousands of readers. Appellant, in his article, has 
attributed to David Hilliard by name remarks obviously 
relevant to the grand jury’s present inquiry. Appellant has 
admitted in his affidavit that the matters published in the 
articles were told to him on a non-confidential basis. His 
position that he need not appear before the grand jury 
means that he believes he cannot be asked even such ques­
tions as whether he did write the article, whether the state­
ments he attributes to Hilliard [9] were in fact made by

® Even if a newspaper privilege exists, the grand jury should 
not, in our view, have been limited in advance. Rather, the witness 
should, like any other witness who asserts a privilege, be required 
to assert it to a particular question and he should have the burden 
of demonstrating that his answers should be accorded confiden­
tiality. As discussed in the text infra the historic function of the 
grand jury is to investigate. It turns the functions upside down 
to have the grand jury justify its investigation rather than the 
witness his privilege.



3c

Appendix C

Hilliard, and whether they were made seriously. Appellant 
himself did not originally espouse that position. He stated 
at the same time that he requested broader relief, that he 
“does not object to alSrming before the grand jury—or in 
any other place—the authenticity of quotations attributed 
to Black Panther sources in his published articles.” Now, 
however, he claims a right not even to appear before the 
grand jury to answer on oath both the simplest questions 
about his statements and quotations in his published articles. 
That is the position we believe so untenable that we moved 
to dismiss the appeal as frivolous.

II
T h e  Grand J ury M ay S ubpoena A ny  P erson as a W itness  

W ith o u t  S h ow ing  A ny  N eed for H is T estimony

The grand jury is not required and should not be re­
quired to make a preliminary showing before it uses its 
subpoena power to call a witness before it. The grand 
jury, as is commonly known, is a body with “specific con­
stitutional sanction” rooted in long centuries of history. 
See Jenkins v. McKeithen, 395 U.S. I l l ;  Costello v. United 
States, 350 H.S. 359. As the Supreme Court recently stated 
in Wood V. Georgia, 370 U.S. 375, 390:

Historically, this body has been regarded as a primary 
security to the innocent against hasty, malicious and 
oppressive persecution; it serves the invaluable func­
tion in our society of standing between the accuser and 
the accused, whether the [10] latter be an individual, 
minority group, or other, to determine whether a charge 
is founded upon reason or was dictated by an intimidat­
ing power or by malice and personal ill will.

In carrying out this role the grand jury has extensive 
power to investigate. It has long been settled “that the giv-



4c

Appendix C

ing of testimony 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 per­
form upon being properly summoned.” Blair v. United 
States, 250 U.S. 273, 281; United States v. Bryan, 339 U.S. 
323; Brown v. Walker, 161 U.S. 591, 600; cf. New York v. 
O’Neill, 359 U.S. 1,11.

In calling a person as a witness, the grand jury has 
never been required to furnish him a program defining the 
crimes to be investigated or the person or persons against 
whom an accusation is sought. Hale v. Henkel, 201 U.S. 43; 
La Rocca v. United States, 337 F. 2d 39, 43 (O.A. 8). As 
observed in Blair v. United States, 250 U.S. at 282:

He [the witness] is not entitled to set limits to the 
investigation that the grand jury may conduct . . .  It is 
a grand inquest, a body with powers of investigation 
and inquisition, the scope of whose inquiries is not to 
be limited narrowdy by questions of propriety or fore­
casts 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 offense, if there be one, normally 
are developed at the conclusion of the grand [11] 
jury’s labor, not at the beginning, Hendrick’s v. United 
States, 223 U.S. 178, 184.

Earlier in Hale v. Henkel, supra, 201 U.S. at 65, the Court 
said: “It is impossible to conceive that . . . the examination 
of witnesses must be stopped until a basis is laid by an in­
dictment 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 aU 
leads, and gives it the right to investigate on its own initia-



5c

Appendix C

tive. It has “the right, and indeed the duty to follow leads” 
wherever they point. United States v. Winter, 348 F. 2d 204, 
208 (C.A. 2), certiorari denied, 382 U.S. 955. Its “investiga­
tion is not fully carried out until every available clue has 
been run down and all witnesses examined in every proper 
way to find if a crime has been committed.” United States 
V. Samuel Stone, decided July 7, 1970, No. 34651 (C.A. 2). 
This function was described by the Supreme Court in 
Wood V. Georgia, 370 U.S. 375, 392 as follows:

When the grand jury is performing its investigatory 
function into a general problem area, without specific 
regard to indicting a particular individual, society’s 
interest is best served by a thorough and extensive in­
vestigation . . .

The grand jury is thus not required to have a factual 
basis for commencing an investigation and can pursue 
rumors which further investigation may prove groundless. 
I t does not need to have probable cause to investigate; 
rather its function is to determine if probable cause exists. 
It therefore, is not required [123 and has not been required 
to make any preliminary showing before calling any person 
as a witness and accordingly need not show any reason for 
any testimony or evidence. Only the grand jury can prop­
erly decide what may be useful to its investigation. Cf. 
Dennis v. United States, 384 U.S. 855, 875. This power to 
pursue leads and call any person as a witness may be bene­
ficial to the prosecution or may avoid an un just prosecution 
of a potential defendant. If the grand jury has any meaning­
ful role to play, this is a function it must have.

Appellant places great reliance on the limitations placed 
on the use of compulsory process by legislative committees. 
We note, however, that in Barenblatt v. United States, 360 
U.S. 109, the court, after recognizing that academic teach-



6c

Appendix C

ing-freedom and its corollary learning-freedom are essen­
tial, held that Congress is not precluded from interrogating 
a witness merely because he is a teacher. The court said, 
360 U.S. at 126:

“Undeniably, the First Amendment in some circum­
stances protects an individual from being compelled 
to disclose his associational relationships. However, 
the protections of the First Amendment, unlike a proper 
claim of the privilege against self-incrimination under 
the Fifth Amendment, do not afford a witness the right 
to resist inquiry in all circumstances.”

Moreover, the considerations which limit a legislative in­
quiry are inapplicable to a grand jury investigation. A 
legislative inquiry is part of lawmaking and the “First 
Amendment may be invoked against infringement [13] of 
the protected freedoms by law or by lawmaking.” WatTdns 
V. United States, 354 U.S. 178, 197.

Nor do the recent cases in the Supreme Court changing 
the law of libel commencing with New YorJc Times Co. v. 
Sullivan, 376 U.S. 254 support the claim asserted here. As 
the Supreme Court said in Curtis Publishing Co. v. Butts, 
388 U.S. 130, 150:

“The fact that dissemination of information and 
opinion on questions of public concern is ordinarily a 
legitimate, protected and indeed cherished activity 
does not mean, however, that one may in all respects 
carry on that activity exempt from sanctions designed 
to safeguard the legitimate interests of others. A busi­
ness ‘is not immune from regulation because it is an 
agency of the press. The publisher of a newspaper has 
no special immunity from the application of general 
laws. He has no special privilege to invade the rights 
and liberties of others.’ Associated Press v. Labor 
Board, 301 U.S. 103, 132-133.”



7c

Appendix C

A grand jury, which has far-reaching powers to investigate 
crime, clearly should not be required to make public dis­
closure of its investigation in order to be able to summon 
a witness before it, whether or not it may properly be 
restricted in the inquiries which may be directed to the 
witness.

I l l

T h e  Grand J ury D id N ot V iolate, T h e  F irst A m end­
m en t  W h e n  I t Called A  N ew spaper  R eporter A s A  
W itness

The specific question here is whether, under the First 
Amendment, these extensive powers of the grand jury to 
investigate are limited by the status of [14] appellant as 
a newspaper reporter and whether the grand jury must 
show a “particularized need” before calling a reporter, un­
like any other person, as a witness. As we have previously 
pointed out, the district court in a protective order has 
already given appellant assurances that he does not have 
to disclose either confidential information or confidential 
sources of information. Appellant’s contention is that de­
spite this protective order, the grand jury must make a 
special showing, not because the scope of its inquiry or 
any action by it will restrict the freedom of the press, but 
because of the possibility that certain persons will react 
to appellant’s appearance before the grand jury by cutting 
off their communications to him. This possibility, we sub­
mit, furnishes no reason for interfering with the tradi­
tional power of the grand jury.'^

’’ The record here in fact meets the tests proposed by appellant. 
The Hilliard statement on its face warrants grand jury investi­
gation, especially in light of the previous threat for which he was 
indicted. Appellant either is the only witness to the quoted state­
ment or is the only person other than Hilliard who could testify



8c

Appendix C

First Amendment rights are, as appellant and amici 
point out, fundamental to a free society. But the First 
Amendment does not prohibit an inquiry into matters 
which are not private. With respect to the specific guaran­
tees of privacy in the Fourth Amendment, the Supreme 
Court recently said in Kats v. United States, 389 U.S. 347, 
351:

[15] What a person knowingly exposes to the public, 
even in his own home or office is not a subject of 
Fourth Amendment protection.

This reasoning is equally applicable under the First Amend­
ment. Even if appellant has a right to refuse to disclose 
confidential information, he has no right to withhold from 
the grand jury non-confidential information.* Certainly he 
has no right to withhold non-confidential information which 
he published in a widely circulated newspaper.

The fact that a person is a newspaper reporter does not 
give him a constitutional right to decide what the grand

whether others heard the statement also. Since a rulin» requiring 
a preliminary showing for a grand jury subpoena would cause a 
serious interference with its power to investigate, we do not rest 
on the particular facts in this record.

* Amici Washington Post Company and Newsweek, Inc. state 
“that government prosecutors have embarked upon a campaign of 
routinely issuing subpoenas to newsmen and their employees 
throughout the country.” There is no such routine campaign. 
Newsmen and photographers have been witnesses to the recent 
rash of demonstrations where people have been injured and prop­
erty destroyed. The need to investigate these incidents, where 
often reporters were called for the specific purpose of getting 
publicity, does not show an attempt to undermine newspaper ac­
cess to confidential communication. When complaints were made 
about the number of subpoenas issued in the subsequent investi­
gations, the Attorney General on February 5, 1970 announced that 
the Department attorneys should follow a policy of negotiation 
with the press “in an attempt to balance the rights of the press 
with the rights of the grand jury making an investigation.”



9c

Appendix C

jury should investigate or what non-confidential informa­
tion he will disclose. Other persons such as lawyers who 
have recognized privileges not to reveal confidential com­
munications still must reveal non-confidential matters. As 
the Supreme Court said in Roviaro v. United States, 353 
U.S. 59, 60, in commenting on the government-informant 
privilege:

[16] [0]nce the identity of the informant has been 
disclosed to those who would have cause to resent the 
communication, the privilege is no longer applicable.

Appellant does not dispute the proposition that he is 
presently in no danger of being compelled to divulge con­
fidential information. As we understand his argument, his 
concern is that compliance with the modified subpoena will 
cause the Black Panthers to lose trust in him “ [bjecause 
of the secrecy of the grand jury proceedings, no one out­
side the jury room can ever know what questions were asked 
or answered, what confidences disclosed.” According to 
appellant, the Panthers will retaliate by refusing to speak 
further with appellant, and this will destroy him profes­
sionally and lead to “ ‘self-censorship’ of incalculable pro­
portions.” What appellant is saying in essence is that his 
desire to keep contact with the Black Panther organization 
in order to be able to write articles about them in the future 
makes it imperative that the courts recognize what he be­
lieves the Black Panthers will demand as conditions of co­
operation, no matter whether their conditions are reason­
able or unreasonable; whether they have a basis in fact or 
not. In short, the Black Panthers are to decide whether 
non-confidential information should be given to the grand 
jury since, on his argument, if the Black Panthers would 
not object to his appearance before the grand jury, there



10c

Appendix C

would be no reason for him not to appear. We do not 
think this is a requirement of the First Amendment.

[173 The grand jury proceedings are, to be sure, secret, 
Eule 6, F. R. Or. P.,* although, in view of present trends 
in the law permitting defendants to see grand jury min­
utes, no witness is assured that his testimony will be secret 
forever. Dennis v. United States, 384 U.S. 855, 868-875. 
Grand jury investigation or not, the Black Panthers have 
no way of knowing whether Mr. Caldwell has spoken about 
them or will in the future speak about them to other gov­
ernmental agencies, law enforcement officials, or anyone 
else. They must in any case place their faith in Mr. Cald­
well. Particularly in the situation presently before the 
Court—where appellant, rightfully or not, has the protec­
tion of an order that he need not disclose confidential infor­
mation—there can be no reasonable basis for anyone to 
assume that confidences must inevitably be betrayed.

Beyond that, and more significantly, the possibility which 
is the foundation for Mr. Caldwell’s fear is not a condition 
which necessarily follows from a grand jury subpoena. It 
is an unreasonable condition which the Panthers are said 
to impose but which they can remove at any time. If the 
condition is in fact imposed, the Panthers alone, and not 
the grand jury, are abridging the information which they 
may give to the [183 press. If given legal sanction here, 
it will encourage other individuals and groups to impose 
similar conditions, and will limit the probe of a grand jury. 
A person whose conduct is subject to investigation can

 ̂I t is questionable whether the grand jury can properly sub­
mit interrogatories to appellant and avoid calling him as a wit­
ness as the American Civil Liberties Union suggests. Even if this 
procedure is proper, it is inappropriate for an investigating agency. 
Moreover, the grand jury has the right not only to weigh the cred­
ibility of a witness but to frame additional questions on the basis 
of the information it receives.



11c

Appendix C

hardly complain that a grand jury investigation abridges 
access to the press when his very action cuts off commu­
nications to the press. This is totally different from the 
interplay of governmental and private action involved in 
N.A.A.C.P. V. Alabama, 357 IJ.S. 449 and Bates v. Little 
Bock, 361 U.S. 516. “̂ Nor can the press rightfully complain 
that the Panthers are denying them access to information 
any more than if the Panthers would refuse to give the 
press information after an unfavorable news story. Just 
as the press should not bow to such an unreasonable con­
dition, the grand jury need not bow to the unreasonable 
condition which is the principal basis for the complaint 
here. The expressed fear of this type of reprisal, particu­
larly with respect to information not confidential in nature, 
does not furnish any valid excuse for refusing to respond 
to a subpoena. See Piemonte v. United States, 367 IT.S. 
556, 559. See also Kaplan v. United States, 2.34 F.2d 345 
(C.A. 8) where even fears of physical injury were held not 
to justify refusal to answer questions.

Freedom of the press is an important right. Appellant 
has, however, failed to demonstrate that freedom E19] of 
the press involves an absolute right to keep silent as to 
non-confidential matters which have been widely circulated. 
The news media can try to convince Congress that they 
ought to have a privilege (not available to other privileged 
communications recognized by law) not even to be sum­
moned before a grand jury, not even to affirm what they 
themselves have published. Short of a legislative deter­
mination to such effect, appellant has not, we submit,

In each of those cases, the N.A.A.C.P. furnished some of the 
information sought by state agencies but refused to disclose its 
membership lists. See Shelton v. United States, 404 P. 2d 1292, 
1298-1299 (C.A.D.C.), certiorari denied, 393 U.S. 1024.



12c

Appendix C

shown any infringement of First Amendment rights which 
would result from requiring him to appear under the 
modified subpoena now outstanding and testify with respect 
to non-confidential matters.



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