United States v. Caldwell Brief for Respondent
Public Court Documents
October 4, 1971
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Brief Collection, LDF Court Filings. United States v. Caldwell Brief for Respondent, 1971. 276f5c51-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2079f379-eb93-4147-a45b-cc61cf592352/united-states-v-caldwell-brief-for-respondent. Accessed November 06, 2025.
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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.
MEILEN PRESS INC. ■N. Y. C, 219