United States v. Caldwell Brief for Petitioner

    N o . 70-57

It iltt fl|nttrt « | the United jStatea
OcTOBEE Teem, 1971

UisriTi® S tat^  of America, PETITIONEE
. ;■ ''' , ", V, - ^

; EAIRi CAIEWEtii

OW WRIJ! OF GMMTIORARi TO TME VNITBi) STATBS 
OOVBk OF APPEA ftS F pR  TEE NINTH OlBOVIT

B E IIF  FOR THE UNITED STATES

ERWIN N. GRISWOLD,
Solicitor General,

WILL WILSON,
Assistant Attorney General,

WM. BRADFORD REYNOLDS,
Assistant to the Solicitor General, 

BtEATRICE ROSENBERG,
SIDNEY MT. GLAZER,

Attorneys,
Department of Justice, 

Washington, D,0. S05SO.



I N D E X

Page
Opinions below___________________________  1
Jurisdiction______________________________  1
Question presented________________________  1
Constitutional provisions involved____________ 2
Statement_______________________________  2
Summary of argument_____________________  8
Argument:

I. Introduction______________________  H
II. Requiring a newsman to appear before a 

grand jury pursuant to a subpoena which 
has been modified by court order to pro­
tect confidential associations and private 
communications does not violate the 
freedom of the press guaranteed by the 
First Amendment_________________ 16

A. The nature of the claimed privi­
lege---------------------------------------- 16

B. The effect of the subpoena_____  22
C. The proper balance__________ , 34
D. The compelling need test______  42

Conclusion______________________________  4g
Appendix_______________________________  49

CITATIONS
Cases:

Alderman v. United States, 394 U.S. 165____  5
American Communications Association v.

Douds, 339 U.S. 382__________________ 30
Aptheker v. Secretary of State, 378 U.S. 500___ 26
A Quantity of Copies of Books v. Kansas, 378 

U.S. 205___________________________  26
(I)



II

Cases—Continued
Ashwander v. Tennessee Valley Authority, 297 p̂ge

U.S. 288___________________________  11
Associated Press v. United States, 326 U.S. 1__ 17
Baggett v. Bullitt, 377 U.S. 360___________ 26, 28
BarenhlattY. United States, 360 U.S. 109___ 30, 32, 40
Bates V. City of Little Bock, 361 U.S. 516____30, 32
Beckley Newspapers Corp. v. Hanks, 389 U.S.

81-------------------------------- ---------------  ̂ 15
Blair v. United States, 250 U.S. 273_______  35,

36, 37, 38, 43
Blau V. United States, 340 U.S. 332________ 39
Boyle V. Landry, 401 U.S. 77__________ __ 25, 29
Branzhurg v. Meigs, Franklia Cir. Ct., Ky,

decided January 22, 1971______________ 15
Brown Walker, 161 U.S. 591___________  37
Caldwell v. United States, C.A. 9, No. 25802,

decided May 12, 1970________________  6,12
Cameron v. Johnson, 390 U.S. 611_________ 22
Chaplinsky v. New Hampshire, 315 U.S. 568__ 46
Coates V. City of Cincinnati, No. 117, October

Term 1970, decided June 1, 1971________22, 26
Cobbledick v. United States, 309 U.S. 323___  44
Communist Party of the United States v. Sub­

versive Activities Control Board, 367 U.S. 1__ 30
Connally v. General Construction Co., 269 U.S.

385_______________________________  23
Costello V. United States, 350 U.S. 359_ _ 10, 34, 35, 44 
DeGregory v. Attorney General of New Hamp­

shire, 383 U.S. 825___________________  32
DeJonge v. Oregon, 299 U.S. 353__________  45
Dennis v. United States, 384 U.S. 855______  36
DiBella v. United States, 369 U.S. 121______ 44
Dombrowski v. Pfister, 380 U.S. 479_______  22,

24, 25, 26, 29, 31
Elfbrandt v. Russell, 384 U.S. 11__________ 31, 34
Freedman v. Maryland, 380 U.S. 51_______  26



Ill

Cases—Continued
Garland v. Torre, 259 F. 2d 545, certiorari p̂ge

denied, 358 U.S. 910____________ _____ 12,14
Gibson v. Florida Legislative Investigation

Committee, 372 U.S. 539_______________30, 32
Goodfader’s Appeal, In re, 367 P. 2d 472_____13, 15
Goodman v. United States, 108 F. 2d 516_____ 35
Grosjean v. American Press Co., 297 U.S. 233_ _ 15, 18
Hale V. Henkel, 201 U.S. 43______________35, 43
Hannah v. Larche, 363 U.S. 420__________ 37, 43
Harrison v. NAACP, 360 U.S. 167________  22
Hendricks v. United States, 223 U.S. 178___ 43
Herndon v. Lowry, 301 U.S. 242__________  23
Holt V. United States, 218 U.S. 245________  44
Jenkins v. McKeithen, 395 U.S. 411______  35
Kaplan v. United States, 234 F. 2d 345_____ 42
Katz V. United States, 389 U.S. 347________  39
Keyishian v. Board of Regents, 385 U.S. 589__ 25,

27, 28
Kingsley Book, Inc. v. Brown, 354 U.S. 436__ 29
Kingsley International Pictures Corp. v. Regents

of University of New York, 360 U.S. 684___ 23
Konigsherg v. State Bar, 366 U.S. 36______  30
Kunz V. New York, 340 U.S. 290__________  26
Lament v. Postmaster General, 381 U.S. 301 __ 15, 30
LaRocca v. United States, 337 F. 2d 39_____ 43
Liveright v. Joint Committee, 279 F. Supp.

205_______________________________  32
Louisiana ex rel. Gremillion v. NAACP, 366

U.S. 293___ . ______________________  32
Lovell V. Griffin, 303 U.S. 444____________ 15
Mack, In re, 386 Pa. 251, 126 A. 2d 679,

certiorari denied, 352 U.S. 1002________  15
Marchetti v. United States, 390 U.S. 39_____ 41
Marcus v. Search Warrant, 367 U.S. 717___ 28
McGrain v. Daibgherty, 273 U.S. 135______  40



IV

Cases—Continued Page
Minor v. United States, 396 U.S. 87______  41
Moore v. Ogilvie, 394 U.S. 814____________ 3
NAACP V. Alabama ex rel. Patterson, 357

U.S. 449________________________  15,30,31
NAACP V. Button, 371 U.S. 415____  24, 26, 27, 29
Near v. Minnesota, 283 U.S. 697__________  15
New York Times v. Sullivan, 376 U.S. 254__ 15, 33
New York Times Company v. United States,

No. 1873, O.T. 1970, decided June 30,1971.. 15
People V. Dohrn, Crim. No. 69-3808, decided

May 20, 1970_______________________  14
Piemonte v. United States, 367 U.S. 556____  42
Pittsburgh Plate Glass Company v. United

States, 360 U.S. 395_____________ 10, 35, 36, 42
Poe V. Ullman, 367 U.S. 497_____________  11
Roviaro v. United States, 353 U.S. 53______ 14, 39
Samuels v. Mackell, 401 U.S. 66__________  45
Shelton v. Tucker, 364 U.S. 479___________30, 32
Shillitani v. United States, 384 U.S. 364____  3
Smith V. California, 361 U.S. 147_______ 9, 23, 28
Speiser v. Randall, 357 U.S. 513__________ 29
State V. Buchanan, 250 Ore. 244, 436 P. 2d

729, certiorari denied, 392 U.S. 905. _____  15
Staub V. City of Baxley, 355 U.S. 313______  26
Stromberg v. California, 283 U.S. 359______  23
Sweezy v. New Hampshire, 354 U.S. 234____  30,

31, 32, 33-34
Talley v. California, 362 U.S. 60__________ _ 30, 32
Taylor, In re, 193 A. 2d 181_____________  15
Thornhill v. Alabama, 310 U.S. 88_________ 23
Times, Inc. v. Hill, 385 U.S. 374__________ 15
United States v. Amazon Industrial Corp., 55

F. 2d 254__________________________  36
United States v. Bryan, 339 U.S. 323________  37
United States v. Freed, No. 345, O.T. 1970, 

decided April 5,1971_________________  41



V

Gases—Continued Page
United States v. Johnson, 319 U.S. 503_ _ 34, 35, 36, 46 
United States v. Procter & Gamble, 366 U.S.

677__________________________ 10,34,36,42
United States v. Robel, 389 U.S. 258__ 22, 26, 27, 31
United States v. Rose, 125 F. 2d 617_______  35
United States v. Rumely, 345 U.S. 41_______ 40
United States v. Ryan, No. 758, decided May

24, 1971___________________________  12,44
United States v. Socony-Vacuum Oil Company,

310 U.S. 150____________ -__________  36
United States v. Stone, 429 F. 2d 138________ 37, 43
United States v. The Washington Post Co., No.

1885, O.T. 1970, decided June 30,1971____  15
United States v. Thomas George, C.A. 6, No.

71-1067, decided June 14, 1971_________  39
United States v. Tucker, 380 F. 2d 206_______ 14
United States v. Winter, 348 F. 2d 204, cer­

tiorari denied, 382 U.S. 955____ 10, 37, 39, 42, 47
Walker v. City of Birmingham, 388 U.S.

307________________________ 9,23,24,30,31
Whitehill V. Elkins, 389 U.S. 54__________ 31
Winters v. United States, 333 U.S. 507_____ 15, 23
Wisconsin v. Knops, Sup. Ct. Wise., State

No. 146, decided February 2,1971_______  14
Wood V. Georgia, 370 U.S. 375_________  35, 37, 46
Younger v. Harris, 401 U.S. 37________  22, 25, 29
Zwickler v. Koota, 389 U.S. 241__________  25

Constitution, statutes and rule;
U.S. Constitution:

Bill of rights______________________ 15
First Amendment__________________  1,

2, 9, 11, 12, 16, 21, 23, 26, 29, 30, 32-33, 38 
39, 40, 45

Fifth Amendment__________________39, 47
18 U.S.C. 871________________________  3
50 U.S.C. (Supp. IV) 784(c)(1)(D)_________  26



VI

Constitution, statutes and rule—Continued page.
Ala. Code Recompiled Tit. 7 §370 (1960)___ 13
Alaska Stat. §09.25.150 (1967, 1970 Cum.

Supp.)_______   13
Ariz. Rev. Stat. Ann. §12-2237 (1969 Supp.)__ 13
Ark. Stat. Ann. §43-917 (1964)___________  13
Cal. Evid. Code Ann. §1070 (West 1966)___  13
Ind. Ann. Stat. §2-1733 (1968)___________  13
Ky. Rev. Stat. §421.100 (1963)___________  13
La. Rev. Stat. §45:1451-54 (1970 Cum.

Supp.)_____________________________ 13
Md. Ann. Code Art. 35, §2 (1971)________  13
Mich. Stat. Ann. §28.945(1) (1954)________ 13
Mont. Rev. Codes Ann. tit. 93, ch. 601-2

(1964)______________________________  13
Nev. Rev. Stat. §48.087 (1969)______________ 13
N.J. Stat. Ann. tit. 2A, ch. 84A, §21, 29

(Supp. 1969)________________________ 13
N.M. Stat. Ann. §20-1-12.1 (1953; 1967

Rev.)--_____________________________  13
N.Y. Civ. Rights Law §79-h (McKinney,

1970)____________________________   14
Ohio Rev. Code Ann. §2739.12 (1953)________  13
Pa. Stat. Ann tit. 68, §330 (1958, 1970 Cum.

Supp.)______________________________  14
Rule 6(e), F.R. Cr. p__________________  35
Rule 6(g), F.R. Cr. P __________________  2

Miscellaneous:
H.R. 7787, 88th Cong., 1st Sess. (1963)____  13
H.R. 8519, 88th Cong., 1st Sess. (1963)____  13
S. 1311, 92nd Cong., 1st Sess. (1970)______  13
S. 1851, 88th Cong., 1st Sess. (1963)_______ 13
Beaver, The Newsman’s Code, the Claim of 

Privilege, and Everyman’s Right to Evidence,
47 Ore. L. Rev. 243 (1968)_______________  28

A. Bickel, The Least Dangerous Branch, 149 
(1962)_______________________________ 31



VII

Miscellaneous—C ontinued
Bird and Mervin, The Newspaper and Society, page

567 (1942)_________________________  33
2 Chafee, Government & Mass Communications,

495_______________________________  28
Collings, Unconstitutional Uncertainty~An

Appraisal, 40 Cornel L. Q. 195 (1955)__  24
Comment, Constitutional Protection for the 

Newsman’s Work Product, 6 Harv. Civ.
R.-Civ. Lib. L. Rev. 119 (1970)_________  13

Guest and Stanzler, The Constitutional Argu­
ment for Newsmen Concealing Their Sources,
64 Nw. U. L. Rev. 18 (1960)________ 13,15, 28

1 Holdsworth, History of English Law (1927)
322-----------------------------------------------  35

Note, Reporters and Their Sources: The Con­
stitutional Right to a Confidential Relation­
ship, 80 Yale L. J. 317 (1970)__________ 17, 27

Note, The Chilling Effect in Constitutional Law,
69 Colum. L. Rev. 808________________ 31

Note, The First Amendment Overhreadth Doc­
trine, 86 Harv. L. Rev. 844 (1970) __ 23, 24, 27, 31 

Note, The Newsman’s Privilege: Protection of 
Confidential Associations and Private Com­
munications, 4 J. L. Ref. 85 (1970)______13,17

Note, The Void-for-Vagueness Doctrine in the 
Supreme Court, 109 U. Pa. L. Rev. 67
(1960)-------------------------------------------- 23,24

Revised Draft of the Proposed Rules of 
Evidence for the United States Courts and 
Magistrates, Advisory Committee’s Note to
Proposed Rule 501__________________  33

8 Wigmore, Evidence §2286 (McNaughton 
rev. 1961)__________________________  12



\n iU  d{0itrt of iU  ‘Sntoi
October Term, 1971

No. 70-57
U nited S tates of A merica, petitioner

V.

E arl Caldwell

ON WEIT OF CERTIORARI TO THE VNITED STATES 
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (A. 114-130) is 
reported at 434 F. 2d 1081. The opinion of the district 
court (A. 91-93) is reported at 311 F. Supp. 358.

j u r is d ic t io n

The judgment of the court of appeals (A. 131) was 
entered on November 16, 1970. The petition for a writ 
of certiorari was filed on December 16, 1970,- it was 
granted on May 3, 1971 (A. 132). The jurisdiction of 
this Court rests on 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the First Amendment bars a grand jury 
that is investigating possible crimes committed by

( 1)
438 -569— 71 -



members of an organization from compellmg a news­
paper reporter, wbo has published articles about that 
organization, to appear and testify solely about non- 
confidential matters relating to the organization.

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment provides in pertinent part as 
follows:

Congress shall make no law * * * abridg­
ing the freedom of speech, or of the press * * *.

The Fifth Amendment provides in pertinent part 
as follows:

hlo person shall be held to answer for a 
capital, or otherwise infamous crime, unless on 
a presentment or indictment of a Grrand Jury
* * *

STATEMENT

On June 5, 1970, the United States District Court 
for the Uorthem District of California (A. 111-113) 
adjudged respondent, a black reporter for The New 
York Times, in civil contempt of court for refusing to 
appear as a witness and testify before a federal grand 
jury pursuant to a subpoena ad testificandum.^ The 
court of appeals reversed (A, 114-130).

^The district court committed respondent to imprisonment 
until such time as lie might express an intent to testify or until 
such time as the term of the grand jury expires, whichever is 
earlier. I t  stayed its order pending final disposition on appeal. 
Under Rule 6(g), F.B. Cr. P., no regnlar grand jury may serve 
more than 18 months. The grand jury here was impanelled on 
May 7, 1970, succeeding a prior grand jury (see p. 6, infra). Its 
original term has been extended by court order to October 31,1971; 
a further extension of one week, until November 6, 1971, may 
be possible. After that date, however, “the grand jury ceases 
to function, the rationale for civil contempt vanishes, and the



On December 3, 1969, an indictment was returned 
against David Hilliard, Chief of Staff of the Black 
Panther Party, charging him with making threats 
against the life of the President of the United States, 
in violation of 18 U.S.C. 871/ During the preceding 
month, Hilliard had stated publicly in a speech given 
on November 15, 1969: “We will kill Richard Mxon” 
(A. 65, 67). This threat was repeated in the Novem­
ber 22, 1969, issue of the weekly periodical. The Black 
Panther; it appeared again in the December 27, 1969, 
issue, and was reiterated a third time in the Jan­
uary 3, 1970, issue (A. 65). Moreover, numerous 
public statements of a similar nature were reportedly 
being made during the same period by members or 
friends of the Black Panther Party in various parts 
of the country (A. 66-67).

Coincident with this rash of threats against the life 
of the President, an article by respondent about the 
Black Panther Party was published on December 14, 
1969 in The New York Times (A. 11-16). In that 
article, respondent reported, among other things, on 
a conversation he had with Hilliard and others at the 
Panthers’ headquarters in Berkeley, California. At

contemnor has to be released.” SKUlitani v. United States, 384 
U.S. 364, 371-372.

The question remains a live one, however, for the respond­
ent can be summoned before another grand jury if the issue 
here is resolved against him. Cf. Moore v. Ogilvie, 3S4 U.S. 814.

 ̂On May 4, 1971, the district court dismissed the indictment 
against Hilliard after the government refused to disclose its logs 
of an electronic surveillance undertaken to protect itself from 
domestic subversion. An appeal from that dismissal is now 
pending in the Ninth Circuit. United States v. Hilliard, C.A. 9, 
No. 71-1882.



one point, he quoted Hilliard as having made the fol­
lowing statement: “We advocate the very direct 
overthrow of the Government by way of force and 
violence. By picking up guns and moving against it be­
cause we recognize it as being oppressive and in recog­
nizing that we know that the only solution to it is 
armed struggle” (A. 13). The article then continues 
with these words: “In their role as the vanguard in a 
revolutionary struggle the Panthers have picked up 
guns” {ibid.). I t  refers to two police raids on Panther 
offices in other cities resulting in shooting incidents 
and the discovery of caches of weapons, including 
high-powered rifles {ibid.).

On February 2, 1970, respondent was served -with 
a subpoena duces tecum (A. 20), ordering him to ap­
pear on February 4 and testify before the federal 
grand jury in San Francisco, California; he was 
ordered to bring with him notes and tape-recorded in­
terviews covering the year 1969, which “reflect[ed] 
statements made for publication” by Black Panther 
officers and spokesmen “concerning the aims and 
purposes * * * and the activities of said organiza­
tion” and its members {ibid.). This subpoena, how­
ever, was subsequently withdrawn voluntarily by the 
government and is not involved in the instant action 
(A. 91 note).

Thereafter, on March 16, 1970, the government 
caused respondent to be served with a second grand 
jury subpoena—this one a subpoena ad testificandum; 
with no duces tecum clause (A. 21, 4). The next day, 
he and The New York Times Company moved to 
quash the subpoena on the ground that the First



Amendment relieved respondent, as a news reporter, 
of any obligation to appear before the gi’and jury. 
Alternatively, he requested a protective order prohibit­
ing all grand jury interrogation “concerning any con­
fidential interviews or information wdiich he had 
obtained exclusively by confidential interviews” (A. 
4-5).® This, he asserted, would include all unpublished 
interviews with the Panthers; however, he indicated a 
willingness to affirm “before the grand jury—or in any 
other place the authenticity of quotations attributed 
to Black Panther sources in his published articles” 
(A. 6).

Respondent’s position rested essentially on the claim 
that his appearance alone at the secret proceedings 
would be interpreted by the Black Panthers “ as a pos­
sible disclosure of Confidences and trusts” that would 
cause the “Panthers and other dissident groups” to 
refuse to speak to him and “destroy [his] effective­
ness as a newspaperman” (A. 19).

The motion was heard upon affidavits and documen­
tary evidence on April 3, 1970. On April 8, 1970, the 
district court denied the motion to quash and directed 
respondent to appear, subject to the following pro­
visos (A. 96) :

(1) That * * * Earl Caldwell * * * shall not 
be requii'ed to reveal confidential associations,

 ̂He also contended that the court should conduct an in­
quiry, pursuant to Alderman v. United States, 394 U.S. 165, to 
determine whether the subpoena was the product of illegal 
electronic surveillance (A. 4, 108-109). On this issue, the dis­
trict court held (A. 93) that respondent had no standing to 
raise such an objection “at this posture of the grand jury 
investigation.” The court of appeals did not reach the question 
and it is not now before this Court.



sources or information received, developed or 
maintained 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 para­
graph (1), Mr. Caldwell shall not be required 
to answer questions concerning statements made 
to him or information given to him by members 
of the Black Panther Party unless such state­
ments or information were given to him for 
publication or public disclosure;

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

The court further stated that it would entertain a 
motion for modification of its order “ at any time 
upon a showing by the Grovernment of a compelling 
and overriding national interest in requiring Mr. Cald­
well’s testimony which cannot be served by any alter­
native means * * *” (A. 96).^

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 grand jury was impanelled on 
May 7, 1970. Respondent was served with a new sub-

 ̂Eespondent appealed from this order on April 17, 1970; the 
government moved to dismiss that appeal on the ground that 
the order was interlocutory and unappealable, and that the 
appeal was frivolous and would cause undue interruption of the 
grand jury inquiry. On May 12, 1970, the Ninth Circuit dis­
missed the appeal without opinion. Oaldwell v. United States, 
C.A. 9, No. 25802. See n. 9, infra.



poena ad testificandum on May 22 to appear before 
the newly impanelled grand jury, and the district 
court denied a motion to quash, reissuing on June 4, 
1970, its previous order limiting the scope of the grand 
jury’s inquiry (A. 104-105)." On June 5, 1970, after 
respondent persisted in his refusal to appear before 
the grand jury, he was held in civil contempt (A. 111- 
113);" he appealed to the Court of Appeals for the 
Ninth Circuit.

In  reversing, the court of appeals agreed with the 
district court that the First Amendment accords news­
paper reporters a qualified privilege to refuse to 
answer questions in response to a grand jury subpo­
ena. I t  held, however, that because grand jury pro­
ceedings are by nature secret, an order limiting the 
scope of inquiry did not, ‘̂by itself, adequately pro­
tect the First Amendment freedoms at stake in this 
area” (A. 124). Finding that respondent had estab­
lished a relationship of trust and confidence with the 
Black Panthers which rested ‘‘on continuing reassur­
ance” that his handling of news and information has 
been discreet, the court reasoned as follows (A. 123) : 

This reassurance disappears when the re­
porter is called to testify behind closed doors. 
The secrecy that surrounds Grand Jury testi­
mony necessarily introduces uncertainty in the 
minds of those who fear a betrayal of their con­
fidences. These uncertainties are compounded by

® Since the May 22 subpoena was, in substance, an extension 
of the March 16 subpoena, we will for convenience refer here­
after only to the earlier of the two.

® The sentence to an indefinite term of imprisonment, not to 
exceed the term of the grand jury then sitting, was stayed 
pending appeal (see n. 1 supra).



the subtle nature of the journalist-informer re­
lation. The demarcation between what is con­
fidential and what is for publication is not 
sharply drawn and often depends upon the par­
ticular context or timing of the use of the 
information. Militant groups might very under­
standably fear that, under the pressure of 
examination before a Grand Jury, the witness 
may fail to protect their confidences with quite 
the same sure judgment he invokes in the 
normal course of his professional work.

Accordingly, it held that before respondent could be 
ordered to appear Hhe Government must respond by 
demonstrating a compelling need for the witness’ 
presence” (A. 125).'’

SUMMARY OF ARGUMENT

This case does not raise the question whether a 
newspaperman—like an attorney or a doctor or a 
clergyman—can refuse to disclose information that he 
has received as a matter of professional confidence. 
Rather, the issue here is much narrower: whether a 
reporter can refuse to appear and testify before a 
grand jury about matters concededly nonconfidential 
in nature on the ground that his appearance alone 
could jeopardize confidential relationships and thereby

Judge Jameson, District Judge for the District of Mon­
tana, sitting by designation, while concurring in the result, 
stated (A. 129) : “Appellant did not have any express con­
stitutional right to decline to appear before the grand jury. 
This is a duty required of all citizens. If or has Congress 
enacted legislation to accord any type of privilege to a news 
reporter. In my opinion the order of the district court could 
properly be affirmed, and this would accord with the customary 
procedure of requiring a witness to seek a protective order 
after appearing before the grand jury” (footnote omitted).



have a “chilling effect” on the freedom of press guar­
anteed by the First Amendment.

In safeguarding basic freedoms of speech or press, 
this Court has often shifted its focus from the constitu­
tional status of a particular complainant’s conduct to 
the degree of chill being generated on others. But, this 
approach has consistently been conditioned on the 
need “to insulate * * * individuals from the ‘chilling 
effect’ upon exercise of First Amendment free­
doms generated by vagueness, overbreadth and un­
bridled discretion to limit their exercise” {Walker v. 
City of Birmingham, 388 U.S. 307, 345 (Brennan, J., 
dissenting) ).

The vices of unconstitutional vagueness or over­
breadth are not present in this case. The grand Jury 
subpoena served on respondent has been modified by 
court order to protect him against disclosures of con­
fidential associations, sources and information; confi­
dential matters relating to his relationship with the 
Black Panthers need not be revealed; and he is per­
mitted to interrupt his appearance at any time to confer 
outside the jury room with his counsel. These precisely 
defined guidelines are well within the “stricter standard 
of permissible * * * yagueness” (Smiths. California, 
361 U.S. 147, 151) that this Court has required to pro­
tect against the chill on free speech or press caused by 
government regulation that sweeps unnecessarily broad. 
 or do they trench on other First Amendment freedoms 
by compelling injurious disclosures of confidential 
associations.

In these circumstances, it is clear that respondent’s 
challenge is not really to the subpoena ]3ower as such,

4a8 -569~ -71 3



10

but rather to the fundamental nature of grand jury 
proceedings in general—i.e., to the firmly established 
policy of grand jury secrecy. That policj" has long been 
recognized as indispensable to the grand jury’s investi­
gative process. I t is “older than our IsTation itself” 
(Pittsburgh Plate Glass Company v. United States, 
360 U.S. 395, 399). Respondent should not be permit­
ted to undermine the traditional investigative function 
of that body on the ground that his appearance alone 
(albeit fully protected) may cause the group under 
investigation to stop communicating with him for fear 
of a possible betrayal of confidences behind the closed 
doors of the jury room. Such fear, in the circum­
stances of this ease, is imaginary and insubstantial, 
not real and appreciable. I t should not he allowed to 
erode the “long-established policy that maintains the 
secrecy of the grand jury proceedings” (United States 
V. Proctor & Gamble, 356 U.S. 677, 681) and “denude 
that ancient body of a substantial right of inquiry” 
(United States v. V/inter, 348 P. 2d 204, 208 (C.A. 2), 
certiorari denied, 382 U.S. 955).

PTor is it appropriate to require the government, as 
did the court below, to litigate the question whether 
there exists a compelling need for attendance before 
permitting enforcement of a grand jury subpoena to 
any reporter working in a “sensitive” area. Such liti­
gious interruptions of this historic investigative proc­
ess have long been discouraged by this Court. The cir­
cumstances presented here do not warrant intruding 
on this “acquired * * * independence” (Costello v. 
United States, 350 U.S. 359, 362) of grand juries by 
requiring the government to make a satisfactory show-



11

ing in court of compelling need as a precondition to 
calling respondent.

A RG UM EN T

I. INTRODUCTION

This case presents only the narrow question stand­
ing at the threshold of far broader and intrinsically 
more difficult issues relating to the proper scope of a 
news reporter’s claim of privilege. I t comes here in a 
posture which permits disposition without requiring 
this Court to decide the significant constitutional ques­
tions now before it in Brmizhurg v. Hayes, ISTo. 70-85, 
and in In the Matter of Paul Pappas, ¥o. 79-94.' 
Accordingly, we consider it neither appropriate (ef. 
Poe V. UUman, 367 U.S. 497, 503-504; AsJnvander v. 
Tennessee Valley Authority, 297 U.S. 288, 345-348 
(Brandeis, J., concurring)), nor essential to the posi­
tion we urge here, to include in this brief a broad 
discussion of First Amendment rights and their rela­
tionship to the ability of the news media to gather and 
disseminate news.

Instead, as both our petition for certiorari and 
respondent’s reply thereto indicate, the issue in this 
case is narrow; the government did not appeal from 
that part of the district court’s order that permits 
respondent not to testify with respect to confidential

**Tlie issues as framed in those eases are whether a news 
reporter can be compelled to disclose before a grand jury confi­
dential associations {Branslurg), or fsfefjfft-matters seen and heard 
by him on the express condition that he would divulge nothing 
{Pci'p2)as), vrithout violating the First Amendment guarantee of 
freedom of the press. Yv e shall give tb.e Court our vie/ws on those 
questions in a brief amiem curiae, which, we shall file in those cases.



12

matters.® This Court is thus called upon here to 
decide only whether a reporter can refuse to appear 
and testify before a grand jury about matters eon- 
cededly non-confidential in nature on the ground that 
his appearance alone could jeopardize confidential 
relationships and thereby have a “ chilling effect” on 
the freedom of press guaranteed by the First 
Amendment.

In urging that this question should be ansveered 
negatively, we note preliminarily that the confidential 
relationship between a newsman and his informant 
can claim no protection at common law. 8 Wigmore, 
Evidence § 2286 (McNaughton rev. 1961). Moreover, 
courts have consistently declined the invitation to 
create a common law privilege for newsmen by anal­
ogizing the reporter-source relationship to traditional 
relationships of attorney-client, doctor-patient and 
priest-penitent. See, e.g., Garland v. Torre, 259 F. 2d 
545, 550 (C.A. 2), certiorari denied, 358 U.S. 910;

 ̂We do not consider the broader constitutional arguments 
foreclosed to us in later proceedings by our decision not to seek 
review of the district court order specifically protecting respond­
ent from disclosure of any professional confidences unless the 
government shows a compelling need therefor. In our view, that 
was an unappealable order (cf. United States v. Ryan, Ao. 758, 
October Terms, 1970, decided May 24, 1971; and see CaldtoeU v. 
United States, C.A. 9, No. 25802, decided May 12, 1970, where 
tlie court of appeals refused to entertain respondent's earlier 
appeal from that order) ; moreover, we felt that mandamus was 
inappropriate at that time because it would call upon the court of 
appeals to decide broad constitutional issues divorced from a con­
crete setting. Consequently, we determined that the proper course 
was to await respondent’s challenge, if any, to specific questions 
during the grand jury proceeding, and raise any objections, consti­
tutional or otherwise, that we might have to tlie order of the dis­
trict court at that time.



13

In re Goodfader’s Appeal, 367 P. 2d 472 (Sup. Ct. 
Hawaii).'® Hor has Congress been any more receptive 
to the proponents of a newsman’s privilege. Although 
federal legislation has been proposed on several occa­
sions, no bill has ever emerged from the committee.” 

On the other hand, some state legislatures have en­
acted statutes protecting newsmen in varying degrees 
against compulsory disclosure of confidential news 
sources.” In so doing, these states have created a

For an iriuminating discussion of the several factors whicli 
have led courts to conclude that such analogies are imperfect, 
see Note, The Newsman's Privilege: Protection of Confidential
A^isociations ojid Private C'omm.uniGations. 4 J.L. Reform 85, 
89-93 (1970). Compare Guest and Stanzler, T’he Comtttutimvxl 
Argument for Neiosmen Conceating their Sources, 64 Nw. TJ. L. 
Rev. 18, 26-27 (1969).

See, e.g., S. 1851, 88th Cong., 1st Sess. (1963); II.R. 8519, 
88th Cong., 1st Sess. (1963); IT.R. 7787, 88tli Cong., 1st Sess.
(1963) . There is present!pending before the Judiciary Com­
mittee another bill which provides for the protection of news­
men’s confidential sources and communications. See S. 1311, 
92d Cong., 1st Sess. (1970). I t  has not yet been reported out 
of committee.

Such legislation has been passed in fifteen states: Ala. Code 
Recompiled Tit. 7, § 370 (1960); Alaska S ta t § 09.25.150 (1967, 
1970 Cum. Supp.); Ariz. Rev. Stat. Ann. § 12-2237 (1969 
Supp.); Ark. Stat. Ann. § 43-917 (1964); Cal. Evid. Code Ann. 
§1070 (West 1966) ; Ind. Ann. Stat. § 2-1733 (1968); Ky. Rev. 
Stat. §421.100 (1963); La. Rev. Stat. §45:1451-54 (1970 Cum. 
Supp.); Md. Ann. Code Art. 35, § 2 (1971); Midi. Stat. Ann. § 28.- 
945 (1) (1954); Mont. Rev. Codes Ann. tit. 93. ch. 601-2
(1964) ; Nevada Rev. Stat. §48.087 (1969) ; N.J. Stat. Ann. tit. 
2A, ch. 84A, § 21, 29 (Supp. 1969); N.M. Stat. Ann. § 20-1-12.1 
(1953; 1967 Rev.); Ohio Rev. ('‘ode Ann. § 2739.12 (1953). For 
a discussion of the differences in the scope of coverage under 
these statutes, see Comment, Constitutional Protection for the 
Newsman's Work Product, 6 Harv. Civ. R.-Civ. Lib. L. Rev. 
119, 121-122 (1970).

iMore than a dozen other states have considered and rejected 
such legislation. See Guest and Stanzler, supra n. 10, at 20-21.



14

legislative privilege not unlike the common law priv­
ilege of the government informer (see Boviaro v. 
United States, 353 U.S. 53, 59), which permits the 
recipient of information, i.e., the government, to 
withhold the informant’s identity to protect ‘‘the 
strong public interest in encouraging the free flov/ of 
information to law enforcement officers.” United 
States V. Tucker, 380 F. 2d 206, 213 (G.A. 2). Only 
two states have passed statutes going lieyond the 
perimeters of source identification; they have ex­
tended the newsman’s privilege to confidential com­
munications and, in one instance, to documents 
received in confidence.

Until the Ninth Circuit’s decision in the instant 
case, the claim that a reporter’s privilege (though 
without common law roots and recognized by few 
state legislatures) enjoys a constitutional basis in the 
First Amendment freedom of the press has, with 
one recent exception,’" been uniformly rejected by 
federal and state courts. Garland v. Torre, supra;

See N.Y. Civ. Eights Law § 79-h (McKinney 1970); Pa. 
Stat. Ann. tit. 28, § 330 (1958, 1970 Cum. Supp.). Only the 
Pennsylvania statute has been construed to protect documents. 
See In  re Taylor^ 193 A. 2d 181 (Sup. Ct. Pa.)

“  A decision by the Cook County Circuit Court, Chicago, Illi­
nois, which was rendered while the appeal in the instant case 
was pending before the Ninth Circuit, upheld the claim of a 
reporter’s privilege not to divulge confidential information on 
First Amendment grounds. People v. Dohrn^ Crim. No. 69-3808, 
decided May 20, 1970. And see Wisconsin v. Knops, Sup. Ct. 
Wise., State No. 146, decided February 2, 1971, which -was 
announced after the court of appeals decision here and essen­
tially agreed with the balancing approach of the Ninth Circuit 
but reached a different result. The Knops opinion is reprinted 
in our Supplemental Memorandum to the petition for cer­
tiorari, No. 70-57.



15

In re Mack, 386 Pa. 251, 126 A. 2d 679, certiorari 
denied, 352 U.S. 1002; In  re Goodfader’s Appeal, 
supra; In  re Taylor, supra; State v. Buchanan, 250 
Ore. 244, 436 P. 2d 729, certiorari denied, 392 U.S. 
905; and see Branzhurg v. Meigs, Franklin Cir. Ct., 
Ky, decided January 22, 1 9 7 1 ; In  the Matter of 
Paul Pappas, supra. Moreover, the major premise on 
which it is f ounded—that, in addition to the protected 
freedoms to write {Netv York Times v. Sullivan, 376 
U.S. 254; Times, Inc. v. Hill, 385 U.S. 374; Beckley 
Netvspapers Gorp. v. Hanks, 389 U.S. 81), to publish 
{New York Times Company v. United States and 
United States v. The Washington Post Company, 
Nos. 1873 and 1885, October Term, 1970, decided 
June 30, 1971), and to circulate {Winters v. United 
States, 333 U.S. 507, 510; Lovell v. Griffin, 303 U.S. 
444; Grosjea,n v. American Press Go., 297 U.S. 233; 
Near v. Minnesota, 283 U.S. 697, 713) news, there is 
a constitutionally protected right of the press to 
gather news—finds little support from statements of 
the framers and backers of the Bill of Rights or 
from prior decisions by this Court."

The opinion in Branzburg v. Meigs appears in the appendix 
to the petition for a writ of certiorari in Branzbii,rg v. Hayes, 
No. 70-85, at pp. 69-75.

See Guest and Stanzler, suyva n. 10, at 30-31.
We do not read Lamont v. Postmaster General, 381 U.S. 

301, holding that the First Amendment protects the right of 
members of the public to receive “communist political propo- 
ganda without first having to disclose the identities of the 
recifients, as guaranteeing to news reporters a privilege to 
receive (or gather) news without later having to disclose the 
identities of the soiurces. Nor do we think the question was 
reached in NAACP  v. Alabama ex rel. Patterson, 357 U.S. 449, 
462, where the Court held that Alabama could not by state



16

Nevertheless, even if the Court should hold in 
Branzburg and Pappas that the First Amendment 
freedom of the press covers nev/sgathering in general 
and authorizes newsmen to refuse to disclose to grand 
juries confidential associations and private communica­
tions in particular {supra n. 8), such protection 
would not warrant the relief respondent seeks in the 
instant case. For, whatever may he the scope of a re­
porter’s constitutional privilege, it does not justify his 
refusal to appear before a grand jury to testify only 
as to matters concededly nonconfidential in nature.

II. REQUIRING A NEWSMAN TO APPEAR BEFORE A GRAND 

JURY PURSUANT TO A SUBPOENA W H ICH  HAS BEEN 

MODIFIED BY COURT ORDER TO PROTECT CONFIDENTIAL 

ASSOCIATIONS AND PRIVATE COAIMUNICATIONS DOES NOT 

VIOLATE THE FREEDOM OF THE PRESS GUARANTEED BY 

THE FIRST AMENDMENT

A . T H E  N A T U R E  O F T H E  C LA IM ED  PR IV IL E G E

We start with the fundamental proposition that 
the reporter’s privilege, if one indeed exists, has as 
its conceptual basis a common desire for anonymity 
among those providing the news media with informa­
tion. As a general matter, it is not that which is com­
municated to the reporter that is intended to be with­
held from publication, but only the identity of the 
communicant. The affidavit filed in this action by news 
correspondent Walter Cronkite makes the point with 
customary precision (A. 52-53) :

3. In doing my work, I  (and those who assist 
me) depend constantly on information, ideas,

statute compel disclosure of membership in the local NAACP 
chapter. See discussion in fra at p p .^ -3 2 .



i:

leads and opinions received in confidence. Such 
material is essential in digging out newsworthy 
facts and, equally important, in assessing the 
importance and analyzing the significance of 
public events. Without such materials, I  would 
be able to do little more than broadcast press 
releases and public statements.

4. The material that I  obtain in privacy and 
on a confidential basis is given to me on that 
basis because my news sources have learned to 
trust me and can confide in ine without fear of 
exposure. In nearly every case, their position, 
perhaps their very job or career, would be in 
jeopardy if this were not the case. * * * [Em­
phasis added.]

To the extent, then, that there is a need for confiden- 
tiality in order to provide the public Avith “the widest 
possible dissemination of information from diverse 
and antagonistic sources” {Associated Press v. United 
States, 326 U.S. 1, 20), it has been argued that the 
reporter-informant privilege must at least protect 
newsmen against involuntary disclosures of news 
sources. See, e.g., Hote, Reporters and Their Sources: 
The Constitutional Bight to a Confidential Relation­
ship, 80 Yale L. J. 317, 329-334 (1970).

The media, however, generally seem to view the 
claimed professional privilege in a broader liglfiT" 
In urging more comprehensive protection of confiden­
tial relationships, they emphasize, as does respondent 
in the instant case, that today there are many “dissi-

See generally, Comment, The Newsman's Privilege: Pro­
tection of Confidential Associations and Private Communica­
tions, 4 J. of L. Ref. 85 (1970).

438 - 569— 71-------4



18

dent groups [which] feel oppressed by established in­
stitutions, [and] they will not speak to newspapermen 
until a relationship of complete trust and confidence 
has been developed” (A. 17). A reporter’s continued 
access to such groups, it is urged, thus requires pro­
tection against a forced betrayal of established confi­
dences. Picking up a phrase used by this Court in 
another context, such protection is claimed to be es­
sential to the preservation of an “untrammeled press 
as a vital source of * * * information.” Grosjean v. 
American Press Co., 297 U.S. 233, 250.’®

Setting to one side the merits of this constitutional 
argument {supra n. 8), it is significant that, with 
the exception of respondent and one other journalist,"® 
every experienced reporter who discussed in the dis­
trict court the scope of protection necessary to fore­
stall possible erosion of such “tenuous and unstable” 
relationships (A. 123), defined the outer perimeters 
in terms of a professional privilege to withhold, in 
addition to confidential sources, no more than the re-

In Grosjean, this Court held that a special license tax, ap­
plicable only to newspapers with circulation in excess of 20,000 
copies per week, was an unconstitutional restraint on both pub­
lication and circulation. The separate question whether the news 
media also had a First Amendment right to gather news was 
not presented in that case.

Gerald Fraser, a black reporter for the New York Times, 
was of the opinion that the only professional privilege that 
could provide adequate protection to confidential relationships 
was one that granted him complete immunity from testifying 
“about black activist groups” (A. 22), whether called before a 
grand jury or a legislative committee, or asked to appear at 
trial. That view apparently is not shared by respondent and 
goes far beyond the position he takes in the instant case. See 
discussion infra, p. 3 ^



19

porter’s private notes or tiles, and other information 
of a confidential nature."" For example, national' cor­
respondent Eric Severeid, stated (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. * * * Should a widespread 
impression develop that my information or notes on 
these conversations is subject to claim by government 
investigators, this traditional relationship, essential 
to my kind of work, would be most seriously jeopar­
dized.” Similarly, staff correspondent Mike 'Wallace 
emphasized (A. 55) that, if those with whom he had 
established a confidential relationship “believed that I 
might, voluntarily or involuntarily, betray their trust 
by disclosing my sources or their private communica­
tions to me, my usefulness as a reporter would be 
seriously diminished.” White House correspondent 
Dan Rather put it in these terms (A. 60): “The fear 
that confidential discussions may be divulged, as a re­
sult of grand jury subpoena, or otherwise, would cur­
tail a reporter’s ability to discover and analyze the 
news.” Thus, he concluded (ibid.), newsmen should 
not “be forced to disclose confidential communications 
and private sources.” And diplomatic correspondent 
Marvin Kalb expressed the same view in yet another 
way (A. 61):

As the court below accurately pointed out (A. 118) : “The 
affidavits contained in this record required the conclusion of 
the District Court that ‘‘coni'pelled disclosure of informoMon 
received by a jou'nialist toithin the scope of such confidential 
relationships jeopardizes those relationships and thereby impairs 
the journalises ability to gather, analyze, and publish the 
news’” (emphasis added).



20

2. In  the course of reporting on diplomatic af­
fairs, I  depend extensively on information which 
comes to me in confidence from sources;, whose 
aironymity must be maintained. * » *

3. Privacy and discretion are the very essence 
of my work as a reporter. Most of the informa­
tion from which stories of diplomatic develop­
ments emerge comes from private talks. Secrecy, 
privacy, off-the-record, background, deep back­
ground—these are the words which describe the 
kind of work in the reporting of diplomatic 
nuance and detail and the building of a pattern 
which ultimately emerges as a story.

4. I f  my sources were to learn that their pri­
vate 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.

What emerges from a full reading of the affidavits 
of these and other reporters is a reaching out among 
journalists for a reporter-source privilege—whether it 
is to be created as a matter of constitutional right or

^"Eeporters Lowell (A. 4^45). Morgan (A. 46-47) and Yee 
(A. 48-50) viewed the claimed privilege as protecting essen­
tially confidential sources and production of files, notes or films. 
Reporters Burnham (A. 43) and Lukas (A. 39-40) took a 
broader view; they stated that the privilege should also pro­
tect private communications or other information obtained )}y 
reportere during confidential conversations. Reporters Johnson 
(A. 24-25), Kifner (A. 26-27), Knight (A. 28-29), Proffitt (A. 
30—31), and liirner (A. 34). in affidavits filed before the 
issuance of the subpoena that is the subject of the instant 
litigation (see supra, p. 4), objected principally to the 
earlier subpoena duces tecum issued to respondent, calling for 
production of notes, files and other documents; they felt this 
materia] should be protected and that an appearance before a 
grand jury m  response to a subpoena of that nature \yOw\d 
destroy confidential relationships. Reporter Koble (A. 37-38)



21

results from legislative action ' —wliicli will protect at 
least confidential sources, preferably also the news­
man’s confidential notes, and at most the private com­
munications and other confidential information received 
from an informant who wishes to remain anonymous.

Even if this Court should determine {supra n. 8) 
that the most expansive of these alternatives is essen­
tial to the preservation of the freedom of the press, 
the subpoena involved in this case, as modified by the 
district court’s order, does no violence to such a con­
stitutional privilege. The judicial safeguards that have 
been imposed here, we submit, adequately insulate re­
spondent’s appearance from the charge that it gen­
erates a “chilling effect” upon the exercise of First 
Amendment rights,
expressed the same vie-n'. Eeporter Eipley (A. 32-33) i-ektecl 
simply that his own appearance and testimony before a legis­
lative committee—without a limitation on the scope of inquiry 
similar to the protective court order in this case—dest,royed 
many of his confidential relationships with “the radical stu­
dent left. ’ Finally, Eeporter Arnold (A. 41-42) discussed only 
the nature of the reporter's relationsliip with various groups, 
pointing out that (A. 42), “ [t]he same forces are at work 
whether the reporter is covering and writing about a radical 
organization, a group of college students, narcotic users, 
police, or Democratic or Eepublican politicians.” Without com­
menting on the scope of protection necessary to a reporter to 
maintain the confidences he has developed, Arnold did point 
out the relatively “teiiuous and imstabie” (A. 123) nature of 
these relationships. “If  it becomes known,” he stated {ibid.), 
“that a reporter is ivillmg 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” (emphasis 
added). Eespondeiit is in no danger of jeopardizing his use­
fulness on that score.

That question, of course, is at the heart of the issues before 
the Court in BramPur-g and Pappas and will be treated ii5 
our brief amicus curiae iu tlsose cases {supra n. 8).



22

B . T H E  E F F E C T  O F T H E  SU B PO E N A

1. In SO far as the chill factor is relevant here, the 
instant case requires preliminary reference to the two 
lines of authority in this Court involving an applica­
tion of the “ chilling effect” concept as a basis for 
judicial intervention. One, represented by Domhroiv- 
sM Y. Pfister, 380 LhS. 179, Gamsron v. Johnson, 390 
U.S. 611, and most recently Younger' v. Harris, 401 
U.S. 37, inter alia, recognizes a narrow exception to 
this Court’s policy of abstention where a threatened 
criminal prosecution, under an overly broad state 
statute regulating expression, is fraught with “ im­
ponderables and contingencies that themselves may 
inhibit the full exercise of First Amendment free­
doms” (380 U.S. at 486). The other, evidenced by 
United States v. B.ohel, 389 U.S. 258, and most re­
cently Goa.tes v. Gity of Gincinnati, Ho. 117, October 
Term, 1970, decided June 1, 1971, inter alia, permits a 
direct challenge to a statute purporting to regulate or 
proscribe rights of speech, press, or association on the 
ground that, although perhaps constitutional as applied 
to the specific conduct in question, it has a potentially 
deterrent impact on the rights of expression of others. 
The element common to both lines of decision is that the 
sweep of the underlying statutory provisions has a 
“ ‘chilling effect’ upon exercise of First Amendment

1 liat policy, gTOunded oii princij)les of comity, is designed 
to prevent federal courts generally from interfering with im­
minent or initiated state criminal prosecution, or adjudicating 
“tlie constitutionality of state enactments fairly open-to inter­
pretation until the state courts have been afforded a reasonable 
opportunity to pass upon them.” Ilarrhon v. NAAOP, 360 U.S. 
167, 176; and see Yovnger v. Harris, supra, 401 U.S. at 43-46.



23

freedoms generated by vagueness, overbreadth and 
unbridled discretion to limit their exercise.” Walker v. 
City of Birmingham., 388 U.S. 307, 344-345 (Brennan, 
J., dissenting)

That concept, of course, has roots in early decisions 
by this Court invalidating on due process grounds a 
law “wliieh either forbids or requires the doing of an 
act in terms so vague that men of common intelligence 
must necessarily guess at its meaning and diifer as to 
its application * * Co7inally v. General Construc­
tion Co., 269 U.S. 385, 391.''° Of more enduring signifi­
cance to the chilling effect doctrine, however, are cases 
sustaining attacks on overbroad statutes because, as 
drafted, they leave room for unconstitutional applica­
tion under the First Amendment. See, e.g., Thornhill 
V. Alabama, 310 U.S. 68; Herndon v. Lowry, 301 U.S. 
242; Stromherg v. California, 283 U.S. 359, 360; 
Kingsley Int'l Pictures Corp. v. Regents of JJniv. of 
N.Y., 360 U.S. 684, 694-695 (Frankfurter, J., 
concurring).

In these latter decisions, as reflected in Smith v. 
California, 361 U.S. 147, 151, there is the intimation 
“that stricter standards of permissible statutory 
vagueness may be applied to a statute having a poten­
tially inhibiting effect on speech; a man may the less 
be required to act at his peril here, because the free 
dissemination of ideas may be the loser.” And see 
Winters v. New York, 333 U.S. 507 ,509-510, 517-518. 
Unlike the evil in the due process cases of lack of fair

See generally Note, The First Amendment Overhreadth, 
DoctHne. 83 Harv. L. Eev. 844 (1970).

See geiiei-ally Ttote, The Yoid-jor-Yagueness Doctrine in the 
Supreme Court., 109 U. Pa. L. Eev. 67 (1960).



24

warning, the vice of unconstitutional vagueness in the 
area of speech or press inheres in the threat that stat­
utes which sweep imnecessarily broad “may throttle 
protected conduct. They have a coercive effect since 
rather than chance i)rosecution people will tend to 
leave utterances unsaid even though they are protected 
by the Constitution.” Collings, Unconstitutional Un­
certainty—An Appraisal, 40 Cornell L. Q. 195, 219 
(1955)."^

Judicial protection against such unconstitutional in­
hibition derives support from the “chilling effect” doc­
trine. I t  permits courts to modify “traditional rules of 
standing and prematurity” {Walker v. City of Bir­
mingham, 388 U.S. 307, 344 (Brennan, J., dissenting)) 
in order to provide an immediate response to the 
threat or imposition of legal or criminal sanctions 
imposed under overbroad legislation regulating 
expression.

In Dombrowski, supra, “the existence of a penal 
statute susceptible of sweejoing and improper applica­
tion” (380 U.S. at 487) generated sufficient chill to 
first amendment values to warrant this CourCs inter­
ference with threatened state prosecutions that were

In this area the vices of statutory vagueness and overbreadth 
are often intimately related. See generally Note, The Void-for- 
Vagueness Doctrine in the Sujrreme Court, supra n. 26, at 110- 
113. Indeed, at times the two are functionally indisti^lishable. 
x\s pointed out in NAACP  v. Button, 371 U.S. 415, 432-433: 
‘‘The objectionable quality of vagueness and overbreadth does 
not depend upon [the] absence of fair notice to a criminally 
accused or upon unchanneled delegation of legislative powers, 
but upon the danger of tolerating, in the area of First Amend­
ment freedoms, the existence of a penal statute susceptible of 
sweeping and improper application.” And see Note, The First 
Amendment Overhreodth Doctrine, supra n. 25, at 871-875.



25

being brought in bad faith to harass and discourage 
those intent on promoting Negro civil rights.'^ By al­
lowing injunctive relief, the Court, without declaring 
the state statute unconstitutional, effectively narrowed 
the scope of its application so that “ [t]he area of pro­
scribed conduct wdll be adequately defined and the 
deterrent effect of the statute contained within con­
stitutional limits * * *” (380 U.S. at 490).

The analysis was conceptually no different in Rohel, 
supra, though that case involved a direct, rather than 
indirect, constitutional challenge to the statute. There, 
this Court, ignoring the narrow application of the dis­
trict court,̂ '* invalidated a statutory prohibition on 
members of a “registered” Communist-action orga­
nization from engaging “in any employment in any

"While we are mindful that this Couit’s recent decisions in 
Younger v. Harris^ 401 U.S. 37, Boyle v. Landry^ U.S. 77, 
and related cases decided the same day, emphasize that aspect 
of Dombrowski which explains judicial intervention on the 
ground of bad faith hara-ssment, we do not understand those 
decisions to reject the analysis in Dombrowski relating to the 
“chilling effect” doctrine. Rather, the Court in Younger^ aiid 
related cases, seemed to agree that the existence of a “chilling 
effect” on First Amendment rights due to statutory vagueness 
or overbreadth was essential to judicial intervention in such 
cases. Because of the “long-standing public policy against fed­
eral court interference with state proceedings * * *” (401 U.S. at 
43), however, it insisted that “this soil of ‘chilling effect * * * 
should, not by itself justify federal interv^ention” 401 U.S. at 50). 
A]i.d cf. Keyishian v. Board of Regents, 385 U.S. 589; Zwickler 
V. Koota, 389 U.S. 241.

The district court had overcome the “ ‘likely constitutional 
infirmity’ ” of the statute by construing it as applying only to 
“active” members having a “specific intent” to further the goals 
of the organization (389 U.S. at 261); it concluded that there 
had been no showing that Robel was within the narrowly 
defined category.



26

defense facility” (50 U.S.C. (Snpp. IV) 784(a)(1) 
(D) ) ; the decision was premised solely on the statute’s 
“inhibiting effect on the exercise of First Amdndnient 
rights * * *” (38& U.S. at 265). Again, as 
hrowshi, the chill that called for judicial remedy was 
found in the sweep of the statute: “I t casts its net 
across a broad range of associational activities, in­
discriminately trapping membership which can he eon- 
stitutionally punished and membership which cannot 
be proscribed” (389 U.S. at 265-266). That alone, with­
out regard to the constitutional status of the particular 
complainant, was the “fatal defect” (389 U.S. at 266). '̂’

IVhether one travels the Donibvowski road, or comes 
by way of Rohel, the destination is analytically the

“ See also NAAGP  v. Button, 371 U.S. 415 (barratry law as 
construed held void for overbreadth); Baggett v. Bullitt,, 377 
U.S. 360 (loyalty oath statute held to have an inhibiting effect 
on free speech because of vagueness); Coates v. City of Cincin­
nati, supra (ordinance regulating the right to assemble 
held void for vagueness and overbreadth); cf. Aptheher v. 
k>ecretary of State, 378 U.S. 500 (federal law restricting sub­
versives rights to obtain passports held void as an overbroad 
burden on fifth amendment right to travel). The “chilling 
effect ’ analysis in this line of cases closely parallels the reason­
ing of this Court in cases involving licensing of expression in 
public places. See, e.g., Freedman v. Maryland, 380 U.S. 51; A  
Quantity of Copies of Boohs v. Kansas, 378 U.S. 205; Staul v. 
City of Baxley, 355 U.S. 313; K um  v. New York, 340 U.S. 290. 
There, too, the vice of vagueness warranted judicial interven­
tion in order to protect against the prospect of “self-censorship” 
of activity protected by the First Amendment. As stated in 
Freedman, supra, 380 U.S. at 56, “it is well established that one 
has standing to challenge a statute on the ground that it dele­
gates overly broad licensing discretion to an administrative 
office, whether or not his conduct could be proscribed by a 
properly drawn statute, and whether or not he applied for a 
license.”



27

same. Unconstitutional vagueness or overbreadth is 
a prerequisite to judicial intervention under the 
“chilling effect” doctrine. See generaUy Note, The 
First Amendment Overhreadth Doctrine, supra n. 25, 
at 852-865. As this Court has emphasized repeatedly, 
“ [pjrecision of regulation must be the touchstone in 
an area so closely touching our most precious free­
doms.” NAAGP V. Button, 371 U.S. 415, 438; see also 
United States v. Robel, supra, 389 U.S. at 265; Keyi- 
shian v. Board of Regents, supra, 385 U.S. at 603. 
That is the fundamental policy which sustains the 
shift in judicial focus from the constitutional status 
of a particular complainant’s conduct to the degree of 
chill being generated on the conduct of others. “Be­
cause First Amendment freedoms need breathing space 
to survive, government may regulate in the area only 
with narrow specificity.” NAACP v. Button, supra, 
371 U.S. at 433.

2. We turn, then, to an examination of the “speci­
ficity” of government regulation in the instant case. 
The starting point, of course, is the gi-and jury sub­
poena ad testificandum served on respondent on 
March 16, 1970 (see n. 5 supra) ; admittedly, it was un­
restricted in scope or application. This Court, however, 
even if it should, peering very deeply, ultimately find 
a reporter-source privilege in the Constitution {supra 
n. 8), is not called upon in this case to analogize 
‘‘[t]he deterrent effect of an unbridled subpoena 
power * * * to the inhibiting effect of vague and 
overbroad statutes affecting First Amendment free­
doms.” Uote, Reporters and Their Sources: The Con­
stitutional Right to a Confidential Relationship, supra,



28

p. 17, at 336. Whatever might be the validity of that 
analogy in the broader context,"' it is inapposite here 
in light of the significant modifications the district 
court made to the March 16 subpoena {supra pp. 5-6).

The appearance which respondent now resists is 
exceedingly narrow. By court order, protection— 
albeit qualified (p. 6 supra)—has been afforded to 
“confidential associations, sources or information re­
ceived, developed or maintained ])y him as a profes­
sional journalist * (A. 96 105). Moreover,
“ vdthout limiting” (ibid.) this protection, respondent 
also need not reveal ‘‘statements made to him or 
information given to him by members of the Black 
Panther Party unless such statements or informa­
tion” were intended “for publication or public dis­
closure” (^&id.). Finally, he has been given explicit 
permission to interrupt the appearance to “ consult 
with his counsel” outside the jury room “ at any time 
he wishes” {ibid.).

These precisely defined guidelines, we submit, are 
well within the “stricter standards of permissible * * * 
vagueness” {Smith v. California, supra, 361 IJ.S. 
at 151) applied by this Court in the “ sensitive, areas 
of basic First Amendment freedoms” {Baggett v. 
Bullitt, supra, 377 U.S. at 372). Disclosure has been 
explicitly limited to matters ’which are non-confidential 
in nature. Compare, e.g., Marcus v. Search Warrant,

Compare 2 Chafee, Government & Mass Communications, 
495-499, with Note, Reporters and Their Sources; The Consti­
tutional Right to a Confidential Relationship, supm  p. 17, at 
329-358. And see generally, Beaver, The Newsman's Code, The 
Claim of Privilege and EverymuNs Right to Evidence, 47 Ore. 
L. Rev. 243 (1968). See also Guest & Stanzler, su])ra n. 10.



29

367 TJ.S. 717, with Kingsley Booh, Tnc. v. Brotvn, 354 
U.S. 436. If  that generates a chill on the right of the 
public to a free press, the shiver results not from 
the fear that an exercise of protected expression will 
bring governmental reprisals. See, e.g., KeyisMan v. 
Board of Regents, supra, 385 IT.S. at 604; Dombrow- 
shi V, Pfister, supra, 380 TJ.S. at 486; NAACP v. 
Button, supra, 371 TJ.S. at 433; cf. Speiser v. Randall, 
357 TJ.S. 513. Rather, it comes from mere speculation 
that the “ Black Panthers and other dissident groups” 
(A. 19), solely as a reaction against the reporter’s 
appearance, will refrain from exercising protected 
expression. This may occur; however, where, as here, 
such self-imposed silence by dissident groups cannot 
be traced to a subpoena power which, from over- 
breadth or vagueness, jeopardizes coniidences, its 
“ chilling effect” is, we think, too incidental to war­
rant judicial intervention. Cf. Younger v. Harris, 
supra, 401 U.S. at 50-51P

Whatever the resulting pollution to the “ breathing 
space” of First Amendment freedoms (NAACP v. 
Button, supra, 371 U.S. at 433)—if a newsman’s priv­
ilege is indeed within that area of primary protected 
activity (supra n. 8)—it comes not from a lack of speci­
ficity in government regulation, but from the insistence 
of a selected few to blind themselves to precisely defined 
protections against compelled injurious disclosures (see

There is no evidence in this record that the subpoena in 
this case vas served on respondent in bad faith or for pur­
poses of harassment. See Younger v. Harris, supra; Boyle v. 
Landry, supra, and related cases decided the same day. Nor 
has respondent ever made any such assertion. See discussion 
infra, at pp.

4 L



, V 30
pp. 3^-4f infra). That is a response—generated to a 
considerable degree by “a good deal of paranoia in the 
Movement” (A. 40)—which falls well outside the insu­
lated area that this Court has sheltered from the chill 
of unconstitutional vagueness and overbreadth. Cf. 
Walker v. City of Birmingham, supra, 338 II.S. at 344- 
345 (Brennan, J. dissenting).

3. There is another virtue in the precision of the 
modifying order in this case. Frequently, this Court 
has recognized limitations derived from the First 
Amendment upon the government’s right to compel 
injurious disclosures of confidential associations. See, 
e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449; 
Talley v. California, 362 U.S. 60; Gibson v. Florida Leg­
islative Investigation Committee, 372 U.S. 539; Lament 
V. Postmaster General, 381 U.S. 301.*® In determining 
which identities or associational ties must be divulged 
and which are entitled to protection, it has balanced 
against the governmental interest not only the direct 
injury that disclosure might have on the complainant, 
but also incidental injury that might result to the 
particular association with which he has been linked, 
such as discouragement of continued associational 
ties, dissuasion of others from joining, or public 
harassment. See, e.g., Konigsberg v. State Bar, 366

These decisions generally fall into two categories: (1) those 
involving efforts to compel injurious disclosures during legis­
lative investigations, see, e.g., Communist Party of the United 
States V. Subversive Activities Control Board, 367 U.S. 1; 
Barenhlatt v. United, States, 360 U.S. 109; Sweezy v. New 
Hampshire, 354 U.S. 234; and (2) those involving statutes 
requiring injurious disclosures in order to exercise First Amend­
ment rights, see, e.g., Shelton v. Tucker, 364 U.S. 479; Bates 
V. City of Little Rock, 361 U.S. 516; American Communica­
tions ziss^i V . Douds, 339 U.S. 382.



31

U.S. 36; Elfhrandt v. Russell, 384 IT.S. 11; cf. White- 
hill V. Elkins, 389 U.S. 54; Sweezy v. Netv Hampshire, 
supraR The underlying policy for this judicial elas­
ticity is self-evident: “ Inviolability of privacy in 
group association may in many circumstances be in­
dispensable to preservation of freedom of association, 
particularly when a group espouses dissident beliefs” 
{NAAGP V. Alabama ex rel. Patterson, sup '̂a, 357 
U.S. at 462).

Whenever this Court has focused on the detriment 
to aggregate associational rights of all those in a par­
ticular group, however, the case has involved a chal-

least one commentator has discussed these cases as rep­
resenting the “substantive [operation of the] chilling effect” 
doctrine. See Note, The Chilling Effect in Constitutional Law. 
69 Colum. L. Rev. 808, 822. While that analysis has concep­
tual basis, Tce think it tends to confuse the overriding purpose 
for the Court’s use of “chilling effect” : i.e., to modify “tradi­
tional rules of standing and prematurity” in order to “insulate 
all individuals from the ‘chilling effect’ upon exercise of Firet 
Amendment freedoms generated by r^agueness, overbreadth and 
unbridled discretion * * *” {Walker v. City of Birmingham, 
supra. 388 [J.S. at 341—345 (Brennan, J., dissenting)). In Dom- 
hrowslci. Rohel, and the cases discussed earlier, the Court vas 
not concerned with the constitutional status of a particular 
complainant’s conduct, but only with the First Amendment 
rights of expression of unidentified individuals generally. See 
A. Bickel, The Least Dangerous Branch, 149-150 (1962). By 
contrast, in the cases cited above, the constitutional status of 
the particular complainant’s conduct is directly at issue; the 
court looks to incidental injury to the complainant’s associa­
tional ties simply as a measure of the burden imposed on him 
and his immediate associates by the statutory requirement. 
Because of this fundamental distinction, we thing these latter 
cases should not be lumped together with the “chilling effect” 
cases, but deserve separate treatment. See generally Note, The 
First Amendment Overbreadth Doctrine, supra n. 25, at 848- 
849, 911-918.



32

lenge to the same type of government activity: com­
pelled disclosure of particularized constitutionally 
protected associations/" That element is missing here. 
As earlier indicated {supra pp. the only informa­
tion presently subject to compulsory process under the 
March 16 subpoena (as judicially modified) is wholly 
non-confidential in nature. Associational ties are 
afforded explicit protection (ibid.). Moreover, pre­
cisely because of the strict limitations imposed by the 
district court on the scope of grand juiy interrogation 
(cf. LiverigJit v. Joint Committee, 279 F. Supp. 205, 
215 (M.D. Tenn.)), there is little danger of intrusion 
“by more subtle governmental interference” {Bates v. 
City of Little Rock, supra, 361 U.S. at 523). Here, 
invasions into spheres of privacy affected by First

See, e.g., Sweesy v. New Ham,f shire, supra, 354 U.S. at 
241-242 (compelled disclosure of complainant’s “knowledge of 
the Progressive Party in Uenv Hampshire or of persons with 
whom he was acquainted in that organization”) ; NAAGP  v. 
Alabama ex rel. Patterson, supra, 367 U.S. at 460 (“compelled 
disclosure of the membership lists”) ; Barenblatt v. United States, 
supra, 360 U.S. at 126 (compelled disclosure of complainant’s 
“past or present membership in the Communist Party”) ; Bates 
V. City of Little Roch, supra, 361 U.S. at 517 (compelled dis­
closure of “a list of the names of the members of a local 
branch” of the NAACP) ; Talley v. California, supra, 362 U.S. 
at 65 (“compel members of groups engaged in the dissemina­
tion of ideas to be publicly identified”) ; Shelton v. Tucher, 
supra, 364 U.S. at 485 (“compel a teacher to disclose his every 
associational tie”) ; I^ouisiana ex rel. Gremiltion v. NAACP, 366 
U.S. 293, 296 (“disclosure of membership lists”) ; Gibson v. 
Florida Legislative Investigation Committee, supra, 372 U.S. at 
540 (“subpoena to obtain the entire membership list of the 
Miami branch” of the ISTAACP); DeGregory v. Attorney Gen­
eral of New Llam,pshire, 383 U.S. 825, 828 (compelled disclo­
sure of “information relating to * * * political associations of 
an earlier day, the meetings * * * attended, and the views ex­
pressed and ideas advocated at any such gatherings”).



33

Anieiidmeiit concerns—however those concerns may 
ultimately be defined by this Court {supra n. 8) — 
have been effectively foreclosed to the mvestig'ative 
process. Not even the news media seek greater protec­
tion than this. As we pointed out earlier {supra pp. 18- 
21), virtually all those journalists who spoke to the ques­
tion of the proper scope of a reporter’s privilege in 
the district court seem to agree that compelled dis­
closure of nothing more than matters “for publication 
or public disclosure”—as is the case under the instant 
subpoena {supra, pp. 5-6)—would not jeopardize 
vital professional relationships; it wns the disclosure 
of confidential sources, private communications and 
other confidential infonnation (including notes, files, 
etc.) that caused them concern.''’̂

4. We, therefore, submit that—whatever may be its 
ultimate limits—'“the exercise of the power of compul­
sory process” has been “carefully circumscribed” in 
this ease so that the “investigative process” will not “im­
pinge upon such highly sensitive areas as freedom of 
speech or press, frecAom of political association, and 
freedom of communication of ideas * * Siveezy v.

There thus seems little basis for the argument that sub­
poenas drawn along the narrow lines of the one now" before 
the Court will induce “self-censorship” among reporters (see n. 
30, SMpm). Cf. New York Times v. Sullivan, 876 U.S. 254, 279.

®’ The Newsman’s Code of Ethics adopted by the American 
Newspaper Guild provides; “New-spaper men shall refuse to 
reveal confidences or disclose sources of confidential information 
in court or before other judicial or investigative bodies.” Bird 
and Mervin, The Newspaper and Society 567 (1942). The pro­
posed Rules of Evidence for the federal courts similarly recog­
nizes no general privilege for journalists. Revised Draft of the 
Proposed Rules of Evidence for the United States CoTirts and 
Magistrates, Advisory Committee’s Note to Proposed Rule 501.



34

New Hampshire, supra, 354 U.S. at 245; cf. Elf- 
brandt v. Russell, 384 U.S. 11, 18. Nor do we under­
stand respondent to take a contrary view. His objec­
tion here is not really to the fact that he is subject to 
compulsory disclosure of information which is con- 
cededly non-confidential in nature; nor is his true con­
cern that he is unable to anticipate specific questions 
he might be asked. Rather his complaint, as stated in 
his court of appeals’ brief (p. 49), is simply that: 
“ Because of the secrecy of the grand jury proceedings, 
no one outside the jury room can ever know what 
questions were asked or answered * * Properly 
viewed, that is not a challenge to the subpoena power 
as such, but is, instead, an attack on the fundamental 
nature of grand jury proceedings in general. In the 
circumstances of the precise protections surrounding 
the investigative process in this case, however, the 
“long-established policy” of grand jury secrecy 
(United States v. Procter & Gamble, 356 U.S. 677. 
681) must prevail.

C. T H E  PK O PER B A L A N C E

1. The grand jury is, of course, a “part of the fed­
eral constitutional system.” United States v. Johnson, 
319 U.S. 503, 513. Its adoption in the Constitution “as 
the sole method for preferring charges in serious crim­
inal cases shows the high place it * * * [holds] as an 
instrument of justice.” Costello v. United States, 350 
U.S. 359, 362. I t is “ pledged to indict no one because 
of prejudice and to free no one because of special 
favor” (ibid.). Long established as “a great historic 
instrument of lay inquiry into criminal wrongdoing” 
(United States v. Johnson, supra, 319 U.S. at 512),



35

the grand jury functions “free from technical rules, 
acting in secret” {Costello v. United States, 350 U.S. 
at 362). See Rule 6(e), F.R. Cr. P. This traditional 
policy of secrecy is “ older than our Ration itself” 
{Pittsburgh Plate Glass Com,pang v. United States, 
360 U.S. 395, 399).̂ ® It has been sustained for a 
variety of reasons, all of which are equally “important 
for the protection of the innocent as for the pursuit of 
the guilty” {United States v. Johnson, supra, 319 U.S. 
at 513). And see Wood' v. Georgia, 370 U.S. 375, 390. 
As summarized in Pittsburgh Plate Glass v. United 
States, supra, 360 U.S. at 405 (Brennan, J., dis­
senting) :

Essentially four reasons have been advanced 
as justification for grand jury secrecy. (1) To 
prevent the accused from escaping before he is 
indicted and arrested or from tampering witli 
the witnesses against him. (2) To prevent dis­
closure of derogatory information presented to 
the grand jury against an accused who has not 
been indicted. (3) To encourage complainants 
and witnesses to come before the grand jury and 
speak freely without fear that their testimony 
will be made public thereby subjecting them to 
possible discomfort or retaliation. (4) To en­
courage the grand jurors to engage in unin­
hibited investigation and deliberation bĵ  bar­
ring disclosure of their votes and comments 
during the proceedings.

See also, e.g.. United States v. Rose, 215 F. 2d 617, 
628 (C.A. 3) ; Goodman v. United States, 108 F. 2d

See generally 1 Holdsworth, History of English Laui 
(1927) 322; and cf. Hale v. Henkel, 201 U.S. 43, 59; Blair v. 
United States, 250 U.S. 273, 282; Jenkins v. McKeithen, 395 
U.S. 411.



36

516, 519 (C.A. 9); United States v. Amason Chemical 
Industrial Gorp., 55 F. 2d 254, 261 (D. Md.).

This, then, is no mere policy of convenience ; the 
traditional secrecy of grand jury proceedings has long 
been recognized as an indispensable” (United States 
V. Johnson, supra, 319 U.S. at 513) prerequisite to 
that body’s investigative process. See also United 
States V. Procter d‘ Gamble, supra, 356 U.S. at 682. 
Accordingly, this Court has carefully guarded against 
intrusions which necessarily “ would subvert the func­
tions” of the grand jury (United States v. Johnson, 
supra, 319 U.S. at 513), emphasizing repeatedly that 
the secrecy “must not be broken except where there is 
a compelling necessity” in specific “ instances” which 
“must be shown with particularity. ’’ United States v. 
Procter & Gamble Go., supra, 356 U.S. at 682; and 
see, e.g., Dennis v. United States, 384 U.S. 855, 868- 
875, Pittsburgh Plate Glass Company v. United States, 
supra, 360 U.S. at 400; United States v. Socony- 
Vacuum Oil Company, 310 U.S. 150, 233.

I t is, however, one thing to allow a person, in cir­
cumstances of particularized need, to invade the 
secrecy of grand jury proceedings “ after the grand 
jury’s functions are ended * * * where the ends of 
justice require i t” (United States v. Socony-Yacuum 
Oil Company, supra, 310 U.S. at 234); it is quite an­
other to permit him to evade that secrecy altogether. 
This the Court has been loath to do. As stated more 
than fifty years ago in Blair v. United States, 250 U.S. 
273, 281, “ the giving of testimony and the attendance 
upon the court or grand jury in order to testify are 
public duties which eveiy person within the jurisdic-



37

tion of the govenunent is boxmd to perform upon 
being properly summoned.” See also United States v. 
Bryan, 339 U.S. 323; Brown v. Walker, 161 U.S. 591, 
500.'® “When the grand jury is performing its in­
vestigatory function into a general problem area * * * 
society’s interest is best served by a thorough and 
extensive investigation Wood v. Georgia, 370
U.S. 375, 392; and see Hannah v. Larche, 363 U.S. 
420, 499 (Douglas, J., dissenting). Thus, that body 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 “ investigation is not fully carried out until 
every available clue has been run down and all wit­
nesses examined in every proper way to find if a crime 
has been committed.” United States v. Stone, 429 F. 
2d 138, 140 (C.A. 2). As this Court observed in Blair, 
supra, 250 U.S. at 282:

He [the witness] is not entitled to set limits to 
the investigation that the grand jury may con­
duct * * *. I t  is a grand inquest, a body with 
powers of investigation and inquisition, the 
scope of whose inquiries is not to be limited 
narrowly by questions of propriety or forecasts
Blair, the Court went on to say that “ [t]he duty, so 

onerous at times, yet so necessary to the administration of 
justice * * =>= is subject to mitigation in exceptional circum­
stances” (250 U.S. at 281). Thus, it noted that “there is a 
constitutional exemption from being compelled in any criminal 
case to be a witness against oneself, * * *” (ibid.). Other­
wise, the “mitigation” relates to the giving of testimony rather 
than attendance: “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” 
{ibid.).



38

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

2. Respondent, and the court below (A. 121-126), 
however, woiild have this Court establish a restriction 
on the heretofore unlimited investigative powers of the 
grand jury. The unqualified duty to attend {Blair v. 
United States, supra, 250 U.S. at 281), it is urged, 
should not apply to a reporter who asserts, with re­
spect to a dissident group under grand jury investiga­
tion, a confidential relationship that is so “tenuous 
and unstable” (A. 123) that the group may fear he 
might betray confidences behind the closed doors of 
the jury room. This fear concededly flows not from the 
permissible scope of inquiry, which, as previously in- 
dicated {supra pp. 20-28), has in this case been care­
fully circumscribed to protect confidential associations, 
sources or information. Rather, it emanates solely from 
the fact that members of the group under investiga­
tion will not be able to know what questions were asked 
and answered {supra p. I t is this fear of the un­
known, it is alleged, that will motivate the group to 
refuse to communicate with the “establishment press” 
(A. 41), thereby infringing on the free flow of news 
in violation of claimed First Amendment rights.

To limit the probe of the grand jury by such cir­
cuitous argument is, we think, unwarranted in the



39

circumstances of this case in particular and injurious 
to that body’s traditional investigative function in gen­
eral. Even if we accept the conclusion of the court be­
low that the Black Panthers have a First Amendment 
right to expect that their confidences will not be 
betrayed by compulsory process, we see no reason why 
that should immunize respondent from appearing, 
under the strict protections of the district court order, 
to testify only as to concededly non-confidential mat­
ters. Cf. Katz V. United States, 389 U.S. 347, 351. 
Witnesses claiming the more traditional privileges of 
attorney-client, husband-wife, penitent priest, or gov­
ernment-informer, who are thereby protected from com­
pulsory disclosure of confidential associations or in­
formation, are not excused from appearing in response 
to a subpoena. See, e.g., Roviaro v. United States, supra, 
353 U.S. at 59; Blau v. United States, 340 U.S. 332; 
United States v. Thomas George, C.A. 6, Uo. 71-1067, 
decided June 14, 1971. Uor does a privilege under the 
Fifth Amendment excuse a person from responding to 
a grand jury subpoena, even if he ultimately does no 
more than claim his right against self-incrimination. 
As the Second Circuit remarked in United States v. 
Winter, supra, 348 E. 2d at 207: “ To suggest that 
once an individual is named by witnesses before a 
grand jury under circumstances which may lead to his 
indictment he thereby automatically gains immunity 
from subpoena would denude that ancient body of a 
substantial right of inquiry.”

The fact that the claim of privilege in this case 
arises under the First Amendment is no basis for 
distinction. As we earlier pointed out {supra pp. Si^3^),



40

the assertion that compulsory disclosure of associa- 
tional ties will invade basic freedoms of expression has 
long been recognized by this Court as a reason to re­
strict the scope of inquiry of legislative investigating 
committees (see, e.g., eases cited at n. 35, supra). 
Significantly, however, judicial intervention in such 
situations has occurred subsequent to an appearance 
as a response to a challenge to specific interrogation. 
Never has this Court held that the First Amend­
ment exempts a witness from answering a legislative 
subpoena. As expressed in Barenblatt v. United 
States, supra, 360 U.S. at 126: “Undeniably, the First 
Amendment in some circumstances protects an in­
dividual from being compelled to disclose his asso- 
ciational relationships. However, the protections of the 
First Amendment * * * do not afford a witness the 
right to resist iaquiry in all circumstances.” And cf. 
McGrain v. Daugherty, 273 U.S. 135, 160-175; United 
States V. Bumely, 345 U.S. 41, 43.

3. The suggestion that a contrary rule is warranted 
here because the investigative process is by nature 
secret, rather than open, ignores the special protec­
tion that covers the instant grand jury appearance. 
I t rests on an assumption that “under the pressure of 
examination before a Grand Jury, the witness may 
fail to protect [the Black Panthers’] confidences with 
quite the same sure judgment he invokes in the nor­
mal course of his professional work” (A. 123). But, 
the Black Panthers cannot be sure that respondent 
has not already spoken about them, or will not in the 
future speak about them, to other government agen­
cies, or law enforcement officials. Their faith in him



41

must therefore be under constant re-examination with­
out regard to his grand jury appearance.

At all events, the danger that respondent might 
succumb to “the pressure of examination” in this 
case is illusory. He has not been left alone to contend 
with adroit questioning of government counsel, or to 
interpret legal niceties, in his efforts to keep his con­
fidences intact. Rather, respondent is explicitly “per­
mitted to consult with his counsel at any time he 
wishes during the course of his appearance before the 
grand jury” (supra p. 6; emphasis added). Although 
his attorney must remain outside the jury room, it is 
plain from the district court order that the door must 
be opened to permit a discussion with counsel after 
each question if respondent so desires. Moreover, the 
fact, as stated in his affidavit (A. 18) and accepted by 
the court below (A. 125), “that there is nothing to 
which he could testify (beyond that which he has al­
ready made public and for which, therefore, his ap­
pearance is unnecessary),” makes his task easier and 
reduces substantially any possibility that he will be 
compelled to testify as to confidences “under the pres­
sure of examination.”

In these circumstances, we submit, the threat of 
compulsory disclosure of confidential associations, 
sources or information is “imaginary and unsubstan­
tial,” not “real and appreciable.” Cf. United States v. 
Freed, Ho. 345, October Term, 1970, decided April 5, 
1971; Marchetti v. United States, 390 U.S. 39, 48; 
Minor v. United States, 396 U.S. 87, 94. We can­
not agree with the court below (A. 124) that the 
claimed fear of the Black Panthers of a forced be-



42

trayal of confidences under tlie protections present 
here is a “human reaction * * * reasonable to ex­
pect.” Rather, it is more accurately explained as yet 
another manifestation of the recognized “good deal of 
paranoia in the Movement” (A. 40). Such unfounded 
fears should not be permitted to erode the “long- 
established policy that maintains the secrecy of the 
grand jury proceedings” (United States v. Procter cf 
Gamlle, supra, 356 U.S. at 681) and “denude that 
ancient body of a substantial right of inquiry” (United 
States v. Winter, supra, 348 P. 2d at 207). Under the 
circumstances of this case, the threat of the Black 
Panthers to terminate meaningful communications 
with the news media furnishes no more basis for ex­
cusing respondent’s appearance than a similar threat 
by that group to stop talking with “the establishment 
press” (A. 41) would justify excusing one of its own 
members from appearing. Cf. Piemonte v. United 
States, 367 U.S. 556, 559; Pittsburgh Plate Glass 
Company v. United States, supra, 360 U.S. at 400; 
Kaplan v. United States, 234 P. 2d 345 (C.A. 8).

D. T H E  C O M P E L L IIsG  K E E D  T E ST

1. There is no basis in law or fact for the court of 
appeals’ conclusion that the government must demon­
strate a “compelling need” for respondent’s presence 
“before judicial process properly can issue to require 
attendance” (A. 125). , ^

As we have shown (supra pp. 3^-3^), it has 
long been the function of the grand jury, both in 
this country and in Bngland, to conduct a “ grand 
inquest, * * * the scope of whose inquiries is not to 
be limited narrowly by questions of propriety or



43

forecasts of the probable result of the investigation.” 
Blair V. United States, supra, 250 U.S. at 281. This 
broad investigative power enables that body to pursue 
all leads, and gives it the right to investigate on its 
own initiative. See Hannah v. Larche, supra, 363 U.S. 
at 499 (Douglas, J., dissenting); United States v. 
Winter, supra, 348 F. 2d at 208. I t need establish no 
factual basis for commencing an investigation, and 
can pursue rmnors which further uivestigation may 
prove groundless. See United States v. Stone, supra, 
429 F. 2d at 140. In short, the grand jury need not 
have probable cause to investigate; rather its func­
tion is to determine if probable cause exists. As this 
Court observed long ago in Hale v. Henkel, 201 U.S. 
43, 65: ‘Ut is impossible to conceive that * * * the 
examination of witnesses must be stopped until a 
basis is laid by an indictment formally preferred, 
when the very object of the examination is to ascer­
tain who shall be indicted.”

The court of appeals’ requirement of a preliminary 
showing of compelling need as a foundation for call­
ing before the grand jury a particular person—^what­
ever his status or whatever privilege he might 
assert—breaks with all precedent. See, e.g.. Hale v. 
Henkel, supra; Hendricks v. United States, 223 U.S. 
178, 184; LaBocca v. United States, 337 F. 2d 39, 43 
(C.A. 8) ; but cf. People v. Dohrn, supra. Without 
regard to the proper formulation of the scope of the 
government’s burden," the imposition of such a pre-

The court below was unable to formulate a specific stand­
ard, stating (A. 125-126): “For the present we lack the omni­
science to spell out the details of the Government’s burden 
or the type of proceeding- that would accommodate efforts to



44

condition, if sustained here, would severly impede 
that body’s performance of its traditional function. 
In essence, it would require the government to litigate 
the question of compelling need before enforcement 
of a grand jury subpoena to any reporter working in 
a “sensitive” area—and most areas are ‘“sensitive” 
and “ confidential” to an active newsman." Such liti­
gious interruptions of this historic investigative 
process have long been discouraged by this Court. Cf. 
Cobhledick v. United States, 309 U.S. 323, 325; 
United States v. Byan, No. 758, October Term, 
1970, decided May 24, 1971; DiBella v. United 
States, 369 U.S. 121. Scrutiny of the basis, scope or 
nature of a particular inquisition has been judiciously 
avoided. See Costello v. United States, supra; Molt 
V. United States, 218 U.S. 245. For the various rea­
sons set forth above, we camiot agree that the circum­
stances presented here warrant now intruding on this 
“ acquired * * * independence” {Costello v. United 
States, supra, 350 U.S. at 362) of grand juries by 
insisting that the government make a satisfactory 
showing in court of “compelling need” as a precon­
dition to calling respondent (see n. 42 infra).

2. Since respondent has challenged the issuance of 
the March 16 subpoena as entirely without basis, we 
discuss briefly the reasons underlying that action.
meet that burden.” I t  noted (A. 126 n. 11) that some guide­
lines had been suggested, though it was “not certain that [they] 
represent [ed] the best or most satisfactory formulation of the 
requirement.” But see n. 42 infra.

I t  is our understanding that respondent takes the position 
that anything not published in his articles is confidential, even 
statements given to him for publication that were not actually 
published. Indeed, he claims that he does not have to authen­
ticate his published articles by testimony before the grand jury.



45

As reflected earlier in our Statement {supra pp. 
3-4), in a published article in The New York Times on 
December 14, 1969 (A. 11-16), respondent attributed 
remarks to David Hilliard which indicated that the 
Black Panthers iutended to pick up guns and move 
against the government in “armed struggle” ; that 
they advocated “ the very direct overthrow of the 
Grovernment by way of force and violence” (A. 13). 
Such statements, we submit, when viewed together 
with the numerous statements of a similar nature then 
being made by other members of the Black Panther 
Party {supra, p. 3; A. 65-69), provided ample basis 
for a grand jury investigation. I t  is, of course, well 
recognized that freedom of speech “ may be abused by 
using speech or press or assembly in order to incite to 
violence and crime.” DeJonge v. Oregon, 299 U.S. 353, 
364. As Mr. Justice Douglas stated recently in his sepa­
rate opinion in Samuels v. Mackell, 401 U.S. 66, 75: 

But other overt acts relate to the acquisition 
of weapons, gunpowder, and the like, and the 
storing of gasoline to start flres. Persuasion by 
such means plainly has no First Amendment 
protection.

* * * Certainly violence has no sanctuary in 
the First Amendment, and the use of weapons, 
gunpowder, and gasoline may not constitution­
ally masquerade under the guise of “ advocacy.”

To be sure, a grand jury investigation of the violent 
threats attributed to Hilliard and others may prove 
to be fruitless. The grand jury may not be able to tie 
the words to actual or contemplated use of force; or 
its investigation may show that the statements were



46

no more than empty rhetoric, delivered under such 
circumstances as not even to constitute “ fighting 
words.” See Chaplinshy v. New Hampshire, 315 U.S. 
568. But those possibilities in no way mitigate the 
investigative powers of that institution or lessen its 
responsibility to conduct a “ thorough and extensive 
investigation” if “ society’s interest is [to be] best 
served.” Wood v. Georgia, supra, 370 U.S. at 392.

There was, therefore, strong reason to subpoena 
respondent in this case. His newspaper article was not 
an editorial; nor was it simply a paraphrase of state­
ments by Hilliard and other members of the Black 
Panther Party. I t  contained, instead, direct quotations 
which on their face seemed outside the protections of 
First Amendment free speech. Consequently, it was a 
proper exercise of the grand jury subpoena power to 
call respondent 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. 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. I t was in these 
circumstances entirely reasonable to assume that his 
testimony could be “ important for the protection of 
the innocent as for the pursuit of the guilty” {United 
States V. Johnson, supra, 319 U.S. at 513).

Hor can we agree with the court below that re­
spondent’s self-serving statements after receiving the 
subpoena—to the effect that he had no information 
of a non-confidential nature that was not already 
printed in published articles (A. 18, 125)—eliminated 
all need for requiring his appearance. A witness’



47

threat that he will refuse to answer all questions put 
to him by the grand jury on grounds of a First Amend­
ment privilege should no more be permitted to “de­
nude that ancient body of a substantial right of in­
quiry” than is a similar threat under the Fifth 
Amendment. United States v. Winter, supra, 348 F. 
2d at 207-208. Since respondent may under the present 
court order claim a privilege as to particular questions 
at the time they are asked, the grand jury should not 
in this case, any more than it is in other cases, be re­
quired to predetermine and disclose the scope of its 
investigation as a condition to calling before it a re­
porter who has undertaken to make public many state­
ments, including allegedly direct quotations from a 
number of people.

The Attorney General has taken steps to minimize the 
possibility that this issue will reoccur in a federal context. 
“\yhile this litigation was under way, he issued guidelines which 
are to govern the practice of the Department of Justice in 
summoning newsmen before grand juries in the future. See 
Appendix A, pp. 47-49), infra. The evaluation of need contem­
plated by the guidelines is to be conducted internally; it would 
not require the government to litigate the question of compel­
ling need before enforcement of a grand jury subpoena to news 
reporters. The internal guidelines are not intended to create any 
litigable rights in and of themselves.



48
CONCLUSION

For the reasons stated, the judgment of the court 

of appeals should be reversed and the case remanded 

for further proceedings in accordance with this CourFs 

opinion.

Respectfully submitted.
E ew if  ]Sr. Gbiswold,

Solicitor General. 
W ill W ilson,

Assistant Attorney General. 
W m . B radfokd Reynolds, 

Assistant to the Solicitor General. 
B eatrice R osenberg,
S idney M, Glazer,

Attorneys.
J uly 1971.



APPENDIX

D epartment op J ustice, 
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 
P air Trial: The Subpoena Controversy”  by the Hon­
orable John X . Mitchell, Attorney General of the 
United States, before the House of Delegates, Ameri­
can B ar Association, at St. Louis, Missouri, on A u ­
gust 10,1970.

W ill 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 F irst Amendment 
rights. In  determining whether to request issuance of 
a subpoena to the press, the approach in every case 
must be to weight that limiting effect against the 
public interest to be served in the fair administration 
of justice.

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

(49)



50

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

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

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

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

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

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

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



51

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 in­
formation and to such surrounding circmnstanees as 
relate to the accuracy of the published information.

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

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

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

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

U.S.  GOVERNMENT PRINTING OFFICE: 1971



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