United States v. Caldwell Brief for Petitioner

    No. 70-57

I n  th e

(Bxtmt of §>UUb

O ctober T erm , 1971

UNITED STATES OF AMERICA,
Petitioner,

V.

EARL CALDWELL,
Respondent.

O n  W r it  of Certiorari to t h e  U nited  States 
Court of A ppeals for t h e  N in t h  C ir c u it

BRIEF OF THE NEW YORK TIMES COMPANY, INC,, 
NATIONAL BROADCASTING COMPANY, INC., CO- 
LTOIBIA BROADCASTING SYSTEM, INC., AMERICAN 
BROADCASTING COMPANIES, INC., CHICAGO SUN- 
TIMES, CHICAGO DAILY NEWS, ASSOCIATED PRESS 
MANAGING EDITORS ASSOCIATION, ASSOCIATED 
PRESS BROADCASTERS’ ASSOCIATION AND ASSO­
CIATION OF AMERICAN PUBLISHERS INC. AS 

AMICI CURIAE

A lexander M. B ickel  
Attorney for Amici Curiae 
261 St. Ronan Street 
New Haven, Conn. 06511



Of Counsel:
J a m es  C. G oodale

Vice President and General 
Counsel

The New York Times 
Company, Inc.

229 West 43rd Street 
New York, N. Y. 10036 

George P . F e l l e m a n  
229 West 43rd Street 
New York, N. Y. 10036

Attorneys for The New York 
Times Company, Inc.

A la n  J . H r u sk a  
R obert S. R if k in d  
A n t h o n y  A . D ea n  
Cr a v a th , S w a in e  & M oore 

One Chase Manhattan Plaza 
New York, N. Y. 10005 

R a l p h  E. G oldberg 
51 West 52nd Street 
New York, N. Y. 10019 

Attorneys for Columbia 
Broadcasting System, Inc.

L a w r en c e  J. McKay 
F loyd A bram s 
D a n ie l  S h e e h a n  
Ca h il l , G ordon, S o n n e t t ,

R e in d e l  & O h l  
80 Pine Street 
New York, N. Y. 10005 

CoRYDON B. D u n h a m
Vice President and General Counsel 
National Broadcasting Company, Inc. 
30 Rockefeller Plaza 
New York, N. Y. 10020 

Attorneys for National
Broadcasting Company, Inc.

C larence  J .  F ried  
P h il ip  R . F orlenza  
H a w k in s , D ela field  & W ood 

67 Wall Street 
New York, N. Y. 10005 

Attorneys for American
Broadcasting Companies, Inc.

E dward C. W allace 
A r t h u r  F. A b elm a n  
W e il , G o tsh a l  & M anges 

767 Fifth Avenue 
New York, N. Y. 10022 

Attorneys for Association 
of American Publishers



TABLE OF CONTENTS

PAGE

Opinions Below..............................................................  1
Jurisdiction ....................................................................  2
Consent of the P a rtie s ..................................... ............ 2
Question Presented.........................................   2
Constitutional Provisions..............................  2
Interest of the A m ic i ....................................................  2
Statement........................................................................  5
Summary of A rgum ent..................... ...............................  7
Argument ......................................................................  9

I. Introduction .....................................................  9
II. The right of readers and viewers freely to be 

informed by print or electronic news media is 
abridged, in violation of the First and Four­
teenth Amendments, if State or Federal gov­
ernments can commonly compel reporters for 
such media to identify confidential sources or to 
divulge information obtained in confidence . . .  13

A. The Constitutional foundation of the
r ig h t ..........................................................  13

B. The factual foundation of the right . . . .  16
C. The perimeters of the r ig h t .................... 23

III. A reporter cannot, consistently with the Con­
stitution be forced to divulge sources to a gov­
ernmental investigative body unless three mini­
mal tests have been met. Of these, the first 
two are procedural, requiring the establishment 
of probable cause that a crime has been com­
mitted of which the reporter has knowledge 
and a showing of the government’s inability to 
obtain the information sought by the reporter 
by alternative means. Application for the two 
procedural rules is sufficient to dispose of the 
cases before the C o u rt...................................... 29



11

PAGE

A. The three tests ........................................ 29
B. Limits of the power to compel testimony. . 30
C. Procedure, the overbreadth doctrine, and

the rule of the compelling in terest...........  34
D. Decisions, statutes, administrative actions 

and scholarly articles bearing directly on
the asserted reporters’ privilege..............  42

E. Application of the asserted privilege to
the facts of No. 70-57 and companion 
cases ........................................................  50

F. Questions left open ..................................  51
IV. Before a compelling and overriding national 

or state interest calling for disclosure of a 
reporter’s confidence can ever be said to exist, 
the government must show, at a minimum that 
the violation of law which has probably occurred 
of which the reporter has specifically relevant 
knowledge is a major crim e..............................  55

V. Where a reporter is properly protected by court 
order for disclosure of any confidential informa­
tion, and there is no showing that his appearance 
before a grand jury would nevertheless serve a 
compelling purpose, he need not appear............  64

Conclusion...................................................................... 69



Ill

TABLE OF CASES

PAGE

A Quantity of Books v. Kansas, 378 U. S. 205 (1964) 40
Adams v. Associated Press, 46 F. R. D. 439 (S. D.

Tex. 1969) ...........................................    S3
Adams v. Tanner, 244 U. S. 590 (1 9 1 7 ).................... 17
Aguilar v. Texas, 378 U. S. 108 (1 9 6 4 )................ .. . 32
Air Transport Association v. Professional Air Traffic 

Controllers Organisation, D. C. E. D. N. Y. Nos.
70-C-400-410, April 6, 1970 ...................................... 43

Alderman v. United States, 394 U. S. 165 (1969) . . 55
Alioto V. Cowles Communications, Inc., N. D. Cal.,

C. A. 52150, December 4, 1969 ................................  43
Application of Certain Chinese Family B. & D. Ass’ns,

19 F. R. D. 97 (N. D. Cal. 1956) ........................  67
Aptheker v. Secretary of State, 378 U. S. 500 

(1964) .......................................................................15,36
Baggett v. Bullitt, 377 U. S. 360 (1964) ..................  36
Baker v. United States, 430 F. 2d 499 (D. C. Cir.

1970) , cert, denied, 400 U. S. 965 (1970) .........  55
Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963) .39, 40 
Barenblatt v. United States, 360 U. S. 109 (1959) . .35, 36
Barr v. Matteo, 360 U. S. 564 (1959) ......................31, 40
Barrows v. lackwn, 346 U. S. 249 (1953) .............. 15
Bates V. Little Rock, 361 U. S. 516 (1960) .................30, 36,

37, 38, 62
Blackmer v. United States, 284 U. S. 421 (1932) . . . .  30
Blair V. United States, 250 U. S. 273 (1919) ..........30, 33
BlauY. United States, ZAO \J. S. 159 (1 9 5 0 ).............. 31
Blount V. Rissi, 400 U. S. 410 (1971) ...............................  40
Brandenburg v. Ohio, 395 U. S. 444 (1969) ...........  61
Bransburg v. Hayes, 461 S. W. 2d 345 (Ky. 1970) . . 1 , 6  
Bransburg v. Meigs, #  W-29-71 (unreported) (Ky.

1971) .........................................................................  6
Bratton v. United States, 73 F. 2d 795 (10th Cir.

19341   58



IV

PAGE

Bryant v. Zimmerman, 278 U. S. 63 (1928) ..............  30
Burdick v. United States, 236 U. S. 79 (1915) ........  11
Burns Baking Co. v. Bryan, 264 U. S. 504 (1924) . . .  17
Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 

F. R. D. 318 (Dist. Cal. 1966), ajf’d sub. nom.
V. E. B. Carl Zeiss, Jena v. Clark, 384 F. 2d 979
(D. C. Cir. 1967) ....................................................  67

Cramp v. Board of Public Instruction, 368 U. S. 278
(1961) .................................................................... 27,36

Cur do V. United States, 354 U. S.118 (1 9 5 7 )..........  31
Curtin V. United States,236\J. S. 96 (1 9 1 5 )..............  11
Data Processing Service v. Camp, 397 U. S. 1 SO (1970) 1S
DeGregory v. New Hampshire Attorney General 383

U. S. 825 (1966) ............................................36,37,38
DeJonge v. Oregon, 299 U. S. 353 (1 9 3 7 )..................  38
Dennis v. United States, 341 U. S. 494 (1951) . . .  .61, 62 
Dorfman v. Meissner, 430 F. 2d 558 (7th Cir. 1970) . . 33
Elfbrandt v. Russell, 384 U. S. 11 (1966) ..............27, 36
Estes V. Texas, 381 U. S. 532 (1965) ................30, 33, 36
Blast V. Cohen, 392 U. S. 83 (1 9 6 8 )............................  15
Freedman v. Maryland, 380 U. S. 51 (1 9 6 5 )..............  40
F. T. C. V. American Tobacco Co., 264 U. S. 298 

(1924) ....................................................................67,68
Garland v. Torre, 259 F. 2d 545 (2d Cir. 1958), cert.

denied, 358 U. S. 910 (1958) .................. .23, 46,47, 51
Garner V. Louisiana, . S. 157 (1 9 6 1 )................ 41
Garrison v. Louisiana, 379 U. S. 64 (1964) ............14, 15
Gibson v. Florida Legislative Investigation Committee

372 U. S. 539 (1963) ................) ...................36,37,38
Giordano v. United States, 394 U. S. 310 (1969) . . . .  55
Greene v. McElroy, 360 U. S. 474 (1959) ................ 35
Griswold Y. Connecticut, 381 U. S. 479 (1965) ........  15
Grosjean v. American Press Co., 297 U. S. 233 (1936) 24
Halpern v. United States, 258 F. 2d 36 (2d Cir. 1958) 55
Hawkins v. United States, 358 U. S. 74 (1 9 5 8 )........ 31



V

PAGE

Hennessy v. Wright [1888] 24 Q. B. D. 445 (C. A.) 49
Hickman v. Taylor, 329 U. S. 495 (1947) ................ 31
Illinois V. Tomashevsky, Cook County Court, Criminal 

Division, Indictment No. 69-3358-59, April 7, 1970 43 
In Re Goodfaders Appeal, 45 Hawaii 317, 367 P. 2d

472 (1961) .......... ...................................................  44
In Re Grand Jury, Petition of John Doe, 315 F. Supp.

681 (E. D. Md. 1970) ..............................................  43
Jn Re Grand Jury Investigation, 317 F. Supp. 792

(E. D. Pa. 1970) ...................................................... 57
In Re Grand Jury Witnesses, 322 F. Supp. 573 (N. D.

Calif. 1970) ..............................................................  53
In Re Taylor, 412 P. 32, 193 A. 2d 181 (1963) . . . .  44, 48 
In Re Zuckert, 28 F. R. D. 29 (D. C. 1961), aff’d in 

part sub nom. Machin v. Zuchert, 316 F. 2d 336
(D. C. Cir. 1963). cert, denied 375 U. S. 896 ........  67

In the Matter of Paul Pappas, 266 NE 2d 297 (Mass. 
1970) ....................................................................  1,6,45

lenness v. Forison, 403 U. S. 431 (1971) .................. 52
Keiffe v. LaSalle Realty Co., 163 La. 824, 112 So. 799

(1927) ......................................................................  67
Kent V. Dulles, 357 U. S. 116 (1 9 5 8 ) ................................ 15, 16
Keyishian v. Board of Regents, 385 U. S. 589 (1967) 36
Lament v. Postmaster General, 381 U. S. 301 (1965) 39
Law Students Civil Rights Research Coimcil v.
„ TVadmond, 401 U. S. 154 (1971) ............................  27
Levin v. Marshall, 317 F. Supp. 169 (D. Md. 1970) . . 50
Levinson v. Attorney General, 321 F. Supp. 984 (E. D.

Pa. 1970) ........■........................................................ 31
Licata v. United States, 429 F. 2d 1177 (9th Cir.

1970) .......................................................................... 57
Los Angeles Free Press, Inc. v. Los Angeles, 9 Cal.

App. 3d 448 (1970) ................................................ 52
Lyndv. Rusk, 389 F. 2d 940 (D. C. Cir. 1 967 )........  15
Machin v. Zuchert, 316 F. 2d 336 (D. C. Cir. 1963),

cert, denied, 375 U. S. 896 (1963) .........................  55
Maddox v. Wright, 103 F. Supp. 400 (D. C. 1952) . . 67



VI

PAGE

Mallory v. United States, 354 U. S. 449 (1957) . . . .  41
Malloy V. Hogan, 378 U. S. 1 (1 9 6 4 )........................ 3.1
Marcus w. Search Warrant, 367 U. S. 717 (1961) . . .  40
Martin Y. Struthers, 319 U. S. 141 (1943) ..............  63
McCray v. Illinois, 386 U. S. 300 (1967) ..................  32
McGuiness v. Attorney General, 63 Commw. L. R. 37

(Austl. 1940) ............................................................ 49
McNabh V. United States, 318 U. S. 332 (1943) ! .  41
Mills V. Alabama, 384 U. S. 214 (1 9 6 6 )......................  60
Miranda v. Arizona, 384 U. S. 436 (1 9 6 6 )................  41
Monitor Patriot Co. v. Roy, 401 U. S. 265 (1971) . . .  30
N. A. A. C. P. V. Alabama, 357 U. S. 449 (1958)

30, 36, 37, 38, 46, 63 
N. A. A. C. P. V. Button, 371 U. S. 415 (1963) . . .  .36, 63
Near v. Minnesota, 283 U. S. 697 (1931) ..................  37
New York Times v. Sullivan, 376 U. S. 254 (1964)

15, 28, 30,31,41,43, 52
Overly v. Hall-Neil Furnace Co., 12 F. R. D. 112 

(N. D. Ohio 1951).................................................... 67
Palermo v. United States, 360 U. S. 343 (1959) . . . .  55
Peoplê  V. Dohrn, Cook County, Circuit Court, Criminal 

Division, Indictment No. 69-3808, Decision on
Motion to Quash Subpoenas, May 20, 1970 ............  43

People V. Rios, Calif. Super. Ct. No. 75129, July 15,
1970 ............................................................................ 43

Piccirillo V. New York, 400 U. S. 548 (1 9 7 1 )............ 57
Pierce v. Society of Sisters, 268 U. S. 510 (1925 )___ IS
Quinn v. United States, 349 U. S. 155 (1 9 5 5 )..........  31
Red Lion Broadcasting Co. v. F. C. C., 395 U. S. 367

(1969)  14^15
Rideau v. Louisiana, 373 U. S. 723 (1963) ..............  30
Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971) 28
Roviaro v. United States, 353 U. S. 53 (1 9 5 7 )___32,67
Schneider v. State, 308 U. S. 147 (1938) ..........30, 62, 63
Shelton v. Tucker, 364 U. S. 479 (1 9 6 0 )..................27, 33



V ll

PAGE

Sheppard v. Maxwell, 384 U. S. 333 (1 9 6 6 )............30, 33
Sherbert Y. Verner, 374 U. S. 398 (1 9 6 3 )..................  36
Silverthorne Lumber Co. v. United States, 251 U. S.

385 (1920) ................................................................ 31
Smith V. Illinois, 390 U. S. 129 (1 9 6 8 )......................  32
State V. Buchanan, 250 Ore. 244, 436 P. 2d 729 (1968) 44
State V. Knops, 183 N. W. 2d 93 (Sup. Ct. Wis.

1971).........................................................................44,63
Szueesv v. New Hampshire, 354 U. S. 234 (1957) . . . 27,

38,41,45
Taglianetti v. United States, 394 U. S. 316 (1969) . . 55
Thomas v. Collins, 323 U. S. 516 (1 9 4 5 ).................... 36
Truax v. Raich, 239 U. S. 33 (1 9 1 5 )..........................  15
United States v. Clay, 430 F. 2d 165 (5th Cir. 1970), 

rev’d on other grounds, sub. nom. Clay v. United
States, 403 U. S‘ 698 (1 9 7 1 )......................   55

United States v. Harris, 403 U. S. 573 (1 9 7 1 )..........  32
United States v. Jackson, 384 F. 2d 825 (3rd Cir.

1967) .......................................................................... 55
United States v. Persico, 349 F. 2d 6 (2d Cir. 1965) 55
United States v. Reynolds, 345 U. S. 1 (1 953 )..........32, 67
United States v. Robel, 389 U. S. 258 (1 9 6 7 )............ 36
United States v. Rumely, 345 U. S. 41 (1953) . . . 34, 35, 38 
United States v. Schine, 126 F. Supp. 464 (W. D. N. Y.

1954) .........................................................................   67
United States v. Schipani, 362 F. 2d 825 (2d Cir.

1966), cert, denied, 385 U. S. 934 (1 9 6 6 )................... 55
United States v. Thirty-Seven Photographs, 402 U. S.

363 (1971) ..........■'.................................. ' ................  40
United States Y. Ventresca, 380 U. S. 102 (1965) . . . .  32
Watkins v. United States, 354 U. S. 178 (1957) . . . .  35, 41 
Wellford V. Hardin, 315 F. Supp. 175 (D. Md. 1970) . 55
Westinghouse Corp. v. City of Burlington, 351 F. 2d

762 (D. C. Cir. 1965)......................' ........................  67
Whitehill V. Elkins, 389 U. S. 54 (1967)...................... 36
Whitney v. California, 274 U. S. 357 (1 9 2 7 ).............. 61
Williams v. Rhodes, 393 U. S. 23 (1968) .................. 52
Zemel v. Rusk, 381 U. S. 1 (1965) ............................ 15



vm
CONSTITUTIONAL PROVISIONS AND 

UNITED STATES STATUTES

PAGE

United States Constitution, First Amendment ..2 , 23 24,
26, 27, 28, 29, 30, 31, 34, 35, 38, 42, 

44, 46,48,49, 55, 57, 58,61,63, 64,67 
United States Constitution, Fourth Amendment . . .  31
United States Constitution, Fifth Amendment........31, 57
United States Constitution, Fourteenth Amendment . .2,

29,39
18 U. S. C. § 2514 ......................................................54, 57
28 U. S. C. § 1254(1) ................................................ 2
Federal Rules of Criminal Procedure, Rule 17(c), 28 

United States Code .................................................. 65

STATE STATUTES

Ala. Code Recompiled Tit. 7, § 370 (1 9 6 0 )..................  47
Alaska Stat. § 09.25.150 (1967, 1970 Cum. Supp.) . .  47
Ariz. Rev. Stat. Ann. § 12-2237 (1969 S u p p .) ..........  47
Ark. Stat. Ann. §43-917 (1964) ................................  47
Cal. Evid. Code Ann. § 1070 (West 1966).................. 47
Ind. Ann. Stat. § 2-1733 (1 9 6 8 )..................................  47
Ky. Rev. Stat. § 421.100 (1 9 6 9 )..................................  47
La. Rev. Stat. § 45:1451-54 (1970 Cum. Supp.) . . . .  47
Md. Ann. Code Art. 35, § 2 (1 9 7 1 )............................ 47
Mich. Stat. Ann. § 28.945(1) (1954) ........................ 47
Mont. Rev. Codes Ann. Tit. 93, ch. 601-2 (1964) . . .  47
Nev. Rev. Stat. § 48.087 (1 9 6 9 )..................................  47
N. J. Stat. Ann. Tit. 2A, ch. 84A, § 21, 29 (Supp.

1969) ..........................................................................  47
N. J. Stat. Ann. Tit. 2A, ch. 9 7 -2 ................................  58
N. M. Stat. Ann. § 20-1-12.1 (1953, 1967 Rev.) . . . .  47
N. Y. Civ. Rights Law § 79-h (McKinney 1970) . . . .  47
Ohio Rev. Code Ann. § 2739.12 (1 9 5 3 )......................  47
Pa. Stat. Ann. Tit. 28, § 330 (1958, 1970 Cum. Supp.) 47



IX

FOREIGN STATUTES

PAGE

Austria
Civil Law Statute of Austria, Article 321, Code 5 49
Federal Law of Austria of 1922, Paragraph 45 . . 49

Finland
Oikendenkaymiskaari, Chapter 17, Article XXIV. . 48

France
Decret du 7 Decembre 1960, Article 5 .................... 49

Germany
Baden - Wurttenberg - Landespressegesetz - 1952 

(Bundesgesetzbl. I. S. 177) § 66 Abs. 2 des Ge- 
setzes uber Ordnungswidrigkeiten......................  49

Rundfunk §§ 4 bis 6, 11, 21 Nr. 1 § 22 Abs. 1 Nr.
3 und Abs. 2 bis ^  § § 22 und 24 fur Horfunk 
und Fernsehen entrsprechend..............................  49

Strassbare-Verletzung des Pressegesetzes, § 15 Abs.
1 [Beschl. des B Verrs G vom. 4. 6. 1957, BGBL.
I. S. 1253] ............................................................  49

Verwaltungsgerichtsordnung, Article 98 (German 
Administrative Courts Procedure) ....................  49

Zeugnisverweigerungsrecht — §§22, 23 eingefiigt 
durch Ges. vom. 22.2 1966 [GVBL. S. 31] . . . . 49

Zivilprozessordnung, para. 383 and 384 (code of 
German Civil Procedure) ....................................  49

Philippines
Republic of the Philippines Act (1 9 4 6 )..................  49

Sweden
Freedom of the Press Act of April 15, 1949 ........ 48



X

LAW REVIEWS

PAGE

Beaver, The Newsman’s Code, The Claim of Privilege 
and Everyman’s Right to Evidence, 47 Ore. L. R ev.
243 (1968) ................................................................  44

Brennan, The Supreme Court and the Meiklejohn In­
terpretation of the First Amendment, 79 H a r v . L.
Rev. 1 (1965) ...............................................................  14

Carter, The Journalist, His Informant and Testi­
monial Privilege, 35 N. Y. U. L. R ev. 1111 (1960) 44

D’Alemberte, Journalists Under the Axe: Protection 
of Confidential Sources of Information, 6 H arv. T- 
Legis. 307 (1969) .................................................. .'. 44

Guest & Stanzler, The Constitutional Argument for 
Newsmen Concealing Their Sources, 64 NW U.
L. R ev. 18 (1969) ..................................................  44

Hall and Jones, Pappas and Caldwell, The Newsmen’s 
Privilege— Two Judicial Views, 56 Mass. L. Q.
155 (1971) ..............................................................  43

Kadish, Methodology and Criteria in Due Process Ad­
judication— A Survey and Criticism, 66 Y ale I., J.
319 (1957) ...................................................................20

Karst, Legislative Facts in Constitutional Litigation,
1960 Su p . Ct . R ev. 75 ...........................................17,61

Meiklejohn, The First Amendment Is an Absolute,
1961 S u p . Ct . R ev. 245 ......................................14, 16

Nelson, The Newsmen’s Prwilege Against Disclosure 
of Confidential Soiirces and Information, 24 Vand.
L. R ev. 667 (1971) ..................................................  43

Nutting, Freedom of Silence: Constitutional Protec­
tion Against Governmental Intrusion in Political 
Affairs, 47 M ic h . L. R ev. 181 (1 9 4 8 )....................  32

Semeta, Journalist’s Testimonial Privilege, 9 Cleve.- 
Mar. L. Rev. 311 (1960) ...........................................  44



XI

PAGE

Comment, Constitutional Protection for the Newsman’s 
Work Product, 6 H arv. Civ . R ights-Civ . L ib . L.
Rev. 119 (1970) ........................................................ 43,52

Comment, The Newsman’s Privilege: Government In­
vestigations, Criminal Prosecutions and Private Liti­
gation, 58 Ca lif . L. Rev. 1198 (1970) ............... 43, 53

Comment, The Newsman’s Privilege: Protection of 
Confidential Sources of Information Against Gov­
ernment Subpoenas, 15 St. L ouis U niv . L. J. 181
(1970) .......................................   43

Comment, The Newsmans Privilege: Protection of 
Confidential Associations and Private Communica­
tions, 4 J. L. R eform 85 (1971) ..............................  43

Comment, 46 Ore. L. R ev. 99 (1966) ........................  44
Comment, 11 Stan . L. R ev. 541 (1959) ...................... 44
Note, Reporters and Their Sources: The Constitu­

tional Right To a Confidential Relationship, 80
Ya l e L. j . 317 ( 1 9 7 0 ) .............................................. 43,53

Note, The First Amendment Overbreadth Doctrine, 83
H arv. L. Rev. 844 (1970) .........................................  36

Note, The Grand lury as an Investigatory Body, 74
H arv. L. Rev. 590 (1961) .........................................  54

Note, 71 CoLUM. L. Rev. 838 (1971) .......................  43
Note, 46 N. Y. U. L. Rev. 617 ( 1 9 7 1 ) ...................... 43
Note, 32 T em p . L. Q. 432 (1959) ..............................  44
Note, 35 N eb. L. Rev. 562 (1956) ............................  44
Note, 36 V a . L. R ev. 61 (1950) .................................. 44
Note, 49 H arv. L. R ev. 631 (1936) .......................... 17
Note, 45 Y ale L. J. 357 (1935) ..................................  44
Recent Case, 82 H arv. L. Rev. 1384 ( 1 9 6 9 ) ...............  44
Recent Decision, 61 M ic h . L. Rev. 184 ( 1 9 6 2 ) ......... 44
Recent Decision. 8 Buffalo L. Rev. 294 (1959) . . . .  44

OTHER PERIODICALS

New York Tribune, December 31, 1913......................  11
New York Times, May 2, 1971, at 6 6 .......................... 11
Goldstein, Newsmen and Their Confidential Sources, 

N e w  R e p u b l i c , March 21, 1970, at 13 ..........22, 23, 27



Xll

BOOKS

PAGE

F. A llen , T h e  Borderland of Cr im in a l  J ustice
(1964) .............................................................................. 58, 59

D. Cater, T h e  F ourth  B ranch  of Government
(1959) ................................................................................. 21

Z. Ch a fe e , T hree  H u m an  R igh ts in  th e  Co n sti­
tu tio n  OF 1787 (1956) ................................................ 16

F. S. C ha lm ers, A  Gen tlem a n  of t h e  P ress : T h e  
B iography  of Colonel J o h n  Bay ne  M acL ean 
( 1 9 6 9 ) ...................................................................................  20

F. F ran kfu rter , M r. J ustice  H olmes and t h e  
S u prem e  Court (2nd ed., 1961) ................................  13

P. F reund , O n  U nderstanding  T h e  S uprem e  
Court ( 1 9 5 1 ) .....................................................................  17

H. K lurfeld , Be h in d  t h e  L in e s : T h e  W orld of 
D rew  P earson ( 1 9 6 8 ) ................................................... 20

A. K rock, T h e  N ew spaper— I ts M a k in g  and I ts 
M e a n in g  ( 1 9 4 5 ) ..............................................................  20

A. K rock, M e m o ir s : S ix ty  Y ears on t h e  F ir in g  
L in e  ( 1 9 6 8 ) ........................................................................ 20

C. M acD ougall, N ewsroom P roblems and P olicies
( 1 9 6 4 ) ...................................................................................  21

J. M adison , T h e  F ederalist N o. 51 ( Cooke ed. 1961) 28
N. M orris and G. H a w k in s , T h e  H onest P o l it i­

c ia n ’s Gu id e  to Cr im e  C ontrol ( 1 9 6 9 ) ................  59

R. O ttley , T h e  L onely  W arrior— T h e  L if e  and 
T im es  of R obert S. A bbott (1955) .......................... 20

H. P acker , T h e  L im it s  of t h e  Cr im in a l  Sanction
( 1 9 6 8 ) ...........................    59

R. P ound, Cr im in a l  J ustice  in  A merica  (1930) . .  58



xm
PAGE

U. S chw artz, P ress L aw  for O ur T im es  (Inter­
national Press Institute ed, 1966) .........................  49

G. Seldes, N ever T ire  of P rotesting  ( 1 9 6 8 ) .........  20

H. S herwood, T h e  J ournalistic  I nterview  (1969) 21
L. S nyder and R. M orris, A T reasury of Great 

R eporting  (1962) ..................................................  20
2 J. St epfie n , H istory of t h e  Cr im in a l  L aw  of 

E ngland (1883) ...................................................... 58
C. L. S ulzberger, A L ong R ow of Candles, M e m ­

oirs and D ia ries , 1934-54 (1969) .......................  21

MISCEIXANEOUS

Guidelines of the Attorney General on Press Sub­
poenas, 39 U. S. L. W. 2111 (August 10, 1970)

12, 13, 23, 46,49, 50, 53
Committee o'n Rules of Practice and Procedure of the 

Judicial Conference of the United States, Revised 
Draft of Proposed Rules of Evidence for the United 
States Courts and Magistrates, Rules 503, 504, 506,
507, 510(c)(3) (1971) ....................................31,32, 55

117 Cong R ec 6639 (daily ed. July 13, 1971) .......... 27
S. 3552, 91st Cong., 2d Sess. (1 9 7 0 )..........................  48
H. R. 16328, 91st Cong., 2d Sess. (1 9 7 0 )..................  48
H. R. 16704, 91st Cong., 2d Sess. (1 9 7 0 )..................  48



I n  the

(Burnt of ^tate
O ctober T erm , 1971

No. 70-57

U n ited  States of A m erica ,

V.

E arl Caldwell,

Petitioner,

Respondent.

O n W rit  of Certiorari to th e  U nited  S tates 
Court of A ppeals for th e  N in t h  C ir c u it

BRIEF OF THE NEW YORK TIMES COMPANY, INC., 
NATIONAL BROADCASTING COMPANY, INC., CO­
LUMBIA BROADCASTING SYSTEM, INC., AMERICAN 
BROADCASTING COMPANIES, INC., CHICAGO SUN- 
TIMES, CHICAGO DAILY NEWS, ASSOCIATED PRESS 
MANAGING EDITORS ASSOCIATION, ASSOCIATED 
PRESS BROADCASTERS’ ASSOCIATION AND ASSO­
CIATION OF AMERICAN PUBLISHERS INC. AS 

AMICI CURIAE

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. Opinions 
of the highest courts of Massachusetts and Kentucicy in the 
companion cases. No. 70-85, Branshurg v. Hayes, and No. 
70-94, In the Matter of Paul Pappas, may be found respec­
tively at 461 S. W. 2d 345, and 266 N. E. 2d 297.



JURISDICTION

The judgment of the Court of Appeals (A. 131) was 
entered on November 16, 1970. The petition of the United 
States for a writ of certiorari was filed on December 16, 
1970, and granted on May 3, 1971 (A. 132). The juris­
diction of this Court rests on 28 U.S.C. 1254 (1).

CONSENT OF THE PARTIES

Both the United States and Earl Caldwell, by their 
attorneys, have given their consent to the filing of this 
brief, and their letters of consent are on file with the Clerk 
of this Court.

QUESTION PRESENTED

Whether a reporter for a news medium who is properly 
protected by a court order from disclosing unpublished in­
formation obtained in confidence from a news source should 
be required to appear before a grand jury investigating 
that news source.

CONSTITUTIONAL PROVISIONS

The First Amendment to the United States Constitu­
tion provides in pertinent part:

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

The Fourteenth Amendment to the United States Con­
stitution provides in pertinent part:

“ . . . nor shall any State deprive any person of life, 
liberty, or property without due process of law___”

INTEREST OF THE AMICI

The New York Times Company, Inc. publishes The 
New York Times (“The Times”) and employs Earl Cald-



well, the respondent, and others as reporters. As a pub­
lisher of news and as a servant of the public’s First Amend­
ment right to freedom of the press, The Times stands ready 
to defend the integrity of its news stories. At the same 
time, it is in the interest of The Times, as Mr. Caldwell’s 
employer, and as the employer of other reporters, that its 
reporters be able freely to gather news—that they be free 
from governmental interference or inhibition tending to de­
stroy their ability to pursue their news gathering and news 
reporting activities.

National Broadcasting Company, Inc. (“NBC” ), Co­
lumbia Broadcasting System, Inc. ( “CBS”) and American 
Broadcasting Companies, Inc. (“ABC”) are each inti­
mately involved in the news gathering process. Each owns 
and operates television and radio stations. The news divi­
sion of each employs a large number of professional jour­
nalists to gather, report and analyze news relating to issues 
of public interest and concern. Each also produces and 
broadcasts in depth news programs which probe the public 
issues of the day. In recent years, the amici have them­
selves been served with numerous subpoenas (see Appen­
dix). The reversal of the decision below in this action and 
the affirmance of the decisions in the accompanying actions 
would, the networks believe, perilously endanger their 
sources of information and thus diminish their capacity 
to present the news and, far more importantly, the right of 
the public to see and hear it.

The Chicago Sun-Times and Chicago Daily News are 
published in a metropolitan urban area. They endeavor to 
make available maximum information to the public so that 
the political and social process may function effectively. 
In order to provide this information, it is essential to main­
tain the confidence of all kinds of groups involved in urban 
social change. These newspapers are responsible before



the law for what they print; but if their confidences are to 
be disclosed, their abilities to gather and publish news would 
be gravely impaired.

The Associated Press Managing Editors’ Association 
is an association of the managing editors of newspapers 
throughout the United States, large and small, which are 
members of The Associated Press; and The Associated 
Press Broadcasters’ Association is an association of repre­
sentatives of the many radio and television stations which 
are members of The Associated Press. Both Associations 
and their members are deeply concerned at the threat to a 
free press posed by the issuance of subpoenas to newsmen 
on their various staffs. They are convinced that if freedom 
of the press is to survive in its present form, this Court 
must assure the newsmen constitutionally guaranteed pro­
tection from such threats, and, to that end, have determined 
to join in the filing of this brief.

The Association of American Publishers, Inc., is a 
trade association organized under the laws of New York 
and composed of publishers of general books, textbooks 
and other educational materials. It is estimated that its 262 
individual member companies, which include many univer­
sity presses and publishers of religious books, publish 
approximately 85% of all such books and materials pro­
duced in the United States. The members of the Association 
publish substantial quantities of material written and pre­
pared by reporters and other authors who must guarantee 
the confidentiality of their sources. Accordingly, the As­
sociation is interested in the scope of protection afforded by 
the First Amendment to the United States Constitution 
for material which is obtained in confidence and in the 
freedom from government interference with the processes 
of publishing.



STATEMENT

The facts and lower-court proceedings are detailed in 
the briefs of the parties, and we restrict ourselves here to 
a summary statement.

Respondent Caldwell is a reporter employed by The 
Times. He is stationed in San Francisco, and has written 
a number of articles on the Black Panther Party and its 
leadership. Among other things, he has reported the views 
of Panther Party leaders, including statements made to 
him. After an earlier subpoena duces tecum, ordering pro­
duction of materials concerning aims, purposes and activi­
ties of the Black Panther Party, had been withdrawn, the 
Government on March 16, 1970 served a subpoena ad testi­
ficandum on Caldwell, calling on him to appear before a 
grand jury in San Francisco. 311 F. Supp. at 359. On mo­
tion of Caldwell and The Times to quash the subpoena or, 
alternatively, to issue a protective order, the District Court 
issued such an order, but denied the motion to quash. The 
District Court’s order protected Caldwell against being re­
quired to “answer questions concerning statements made to 
him or information given to him by members of the Black 
Panther Party unless such statements or information were 
given to him for publication or public disclosure. . . .” Id. 
at 361. Caldwell was also protected from having to reveal 
confidential associations or sources, but the court stated 
that the order was open to modification should the govern­
ment show “a compelling and overriding national interest 
in requiring Mr. Caldwell’s testimony which cannot be 
served by any alternative means. . . .” Id. at 362.

Ultimately, after further proceedings made necessary 
by the expiration of the term of one grand jury and the 
impanelling of a new one, Caldwell was held in civil con­
tempt for refusing to appear. On appeal by Caldwell, the 
Government having taken no appeal from the protective 
order, the Court of Appeals reversed the judgment of con­
tempt. 434 F. 2nd at 1090.



In No. 70-85, Bransburg v. Hayes^ a companion case, 
the reporter, Branzburg, is employed by the Louisville, 
Kentucky, Courier-Journal. After much investigation in 
Louisville and elsewhere in Kentucky, Branzburg wrote 
and had published articles telling of a hashish-production 
enterprise conducted by two young residents of Louisville, 
and of traffic in marijuana and use of this and other drugs 
in Franklin County, Kentucky. Summoned by two sepa­
rate state grand juries, Branzburg refused to disclose the 
identities of his confidential informants. In two separate 
proceedings, Branzburg was ordered to appear. In one 
{Hayes), in which a Kentucky statute protecting reporters 
from having to disclose sources of information was held 
inapplicable, he was ordered also to answer. In the other 
(Meigs), in which a protective order was issued pursuant 
to the statute, he was merely ordered to appear. The Ken­
tucky Court of Appeals affirmed both rulings, 461 S. W. 
2d 345 [Hayes] and 9^W-29-7l (unreported) [Meigs], 
On January 26, 1971, Mr. Justice Stewart issued a stay.

In No. 70-94, In the Matter of Paul Pappas, another 
companion case, Pappas, a reporter-photographer for 
W TEV Television, an ABC affiliate in New Bedford, 
Massachusetts, was given permission by members of the 
Black Panther Party to spend the night in a building in New 
Bedford occupied by them, on condition that he report an 
expected police raid, but keep anything else he might see 
or hear during his sojourn in confidence. No police raid 
materialized and Pappas broadcast no report. Nearly two 
months later, having been called before the Bristol County 
grand jury, Pappas appeared, but refused to answer ques­
tions about what he had seen or heard during his night in 
the Black Panther building, although he did answer other 
questions. 266 N. E. 2d at 298. The Superior Court ordered 
him to answer, and the Supreme Judicial Court affirmed. 
Id. at 297. On February 4, 1971, Mr. Justice Brennan 
issued a stay.



SUMMARY OF ARGUMENT

Narrowly stated, the question in No. 70-57, the Cald­
well case, concerns the need for the appearance before a 
grand jury of a reporter protected by court order from 
revealing information obtained in confidence. But in decid­
ing this question, this Court, like the Court of Appeals for 
the Ninth Circuit, can scarcely avoid passing also on the 
considerations which led to the issuance of the protective 
order in the Caldwell case, since the question is not an 
abstract one, but rather whether a reporter so protected, 
and properly so protected, must appear. The underlying 
issue of the protection required against compelled disclosure 
of a reporter’s confidential sources and information is in 
any event presented also by the companion cases.

The right of the public to be informed by print and 
electronic media, which is deeply rooted in the First Amend­
ment, coincides with a reporter’s right of access to news 
sources unimpeded by government. That right is abridged, 
in violation of the First and Fourteenth Amendments, if 
state or federal governments can commonly compel re­
porters to identify confidential sources, or divulge other 
information obtained in confidence. It is a plain fact that 
if a reporter must disclose confidences to government 
investigators, his access to news, and therefore the public’s, 
will be severely constricted, and in many circumstances shut 
off. The First Amendment demands, therefore, that the 
reporter be protected. The standard of protection can be 
defined by objective criteria, and made self-limiting in 
practice.

A reporter cannot, consistently with the Constitution, 
be made to divulge confidences to a governmental investi­
gative body unless three minimal tests have all been met: 
A. The government must clearly show that there is probable 
cause to believe that the reporter possesses information 
which is specifically relevant to a specific probable violation 
of law. B. The government must clearly show that the



8

information it seeks cannot be obtained by alternative 
means, which is to say, from sources other than the 
reporter. C. The government must clearly demonstrate a 
compelling and overriding interest in the information.

The duty to give evidence or appear before a grand jury 
is not absolute. It yields in many contexts, and must yield 
here to the First Amendment, just as equally significant, 
though not compelling, governmental interests yield to the 
First Amendment in analogous circumstances. The nearest 
analogies are legislative investigation cases in which special 
procedural requirements were laid down, cases resting on 
the overbreadth doctrine, and decisions requiring the show­
ing of a compelling governmental interest when measures 
are taken impinging on the First Amendment.

In no case now before this Court—not in No. 70-57, 
and not in the Branzbiirg or Pappas cases—has the govern­
ment met both of the first two tests set out above. It is not 
necessary for purposes of the decision of these cases, there­
fore, to determine the exact manner in which the third of 
our proposed tests is to be applied. That third test should 
receive recognition, however. Hence it should be posited 
at a minimum that with respect to a category of crimes 
that cannot be deemed “major,” as for example crimes 
variously characterized as “victimless,” “regulatory,” and 
“sumptuary,” it is not enough for the government to have 
satisfied the first two of our proposed tests. With respect 
to such crimes at least, a reporter should have the right not 
to disclose to a governmental investigative body informa­
tion obtained in confidence from a news source, or the 
identity of that source.

Where, by application of the three tests we propose, or 
under other applicable law, a reporter is protected from 
having to disclose confidential information, he should not 
be forced to go through the “barren performance,” as the 
Court of Appeals for the Ninth Circuit called it in No. 
70-57, 434 F. 2d at 1089, of appearing before a grand 
jury anyway.



ARGUMENT

I

INTRODUCTION

Strictly speaking, District Judge Zirpoli’s protective 
order is not directly at issue in this Court, since the Gov­
ernment did not appeal from it. For the purposes of its 
own review, however, the Court of Appeals for the Ninth 
Circuit stated:

“While the United States has not appealed from 
the grant of privilege by the District Court (which 
it opposed below) and the propriety of that grant 
is thus not directly involved here, appellant’s con­
tentions here rest upon the same First Amendment 
foundation as did the protective order granted be­
low. Thus, before we can decide whether the First 
Amendment requires more than a protective order 
delimiting the scope of interrogation, we must iirst 
decide whether it requires any privilege at all.” 434 
F. 2d at 1083.

The same is true in the present posture of the case.
The precise holding of the Court of Appeals was as 

follows:
“Appellant asserted in affidavit that there is noth­

ing to which he could testify (be}mnd that which 
he has already made public and for which, there­
fore, his appearance is unneccessary) that is not pro­
tected by the District Court’s order. If this is true 
—and the Government apparently has not believed 
it necessary to dispute it—appellant’s response to 
the subpoena would be a barren performance—one 
of no benefit to the Grand Jury. To destrov appel­
lant’s capacity as newsgatherer for such a return 
hardly makes sense. Since the cost to the public of



10

excusing his attendance is so slight, it may be said 
that there is here no public interest of real substance 
in competition with the First Amendment freedoms 
that are jeopardized.

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

“In light of these considerations we hold that 
where it has been shown that the public’s First 
Amendment right to be informed would be jeopar­
dized by requiring a journalist to submit to secret 
Grand Jury interrogation, the Government must re­
spond by demonstrating a compelling need for the 
witness’s presence before judicial process properly 
can issue to require attendance.” 434 F. 2d at 1089,

The question presented in this Court is the correctness 
of the holding of the Court of Appeals. It is whether a 
reporter who is properly protected from disclosing confi­
dential information should be required to attend before a 
Grand Jury. District Judge Zirpoli’s protective order and 
the considerations on which it was based are relevant, there­
fore, and we shall discuss them. The question of the neces­
sity of such a protective order is squarely presented by No. 
70-85, Bransburg v. Hayes, and No. 70-94, In the Matter 
of Paul Pappas.

The issue of a reporter’s right to withhold from govern­
ment investigations information obtained in confidence is



11

not altogether a novel one in our law, although it has long 
lain relatively dormant, and is an issue of first impression 
in this Court/ It has acquired urgency in the last few years, 
and drawn a great deal of public and official attention. Its 
seriousness has been acknowledged by the President of the 
United States and by the Attorney General. Both have ex­
pressed the opinion that a reporter’s confidences ought 
generally to be respected.

Answering, at a press conference on May 1, 1971, a 
question that ranged beyond the issue of a reporter’s con­
fidences, the President nevertheless addressed himself 
specifically to an aspect of this issue. The President used 
the example of “subpoenaing the notes of reporters,” and 
said that ‘ when you go to the question of Government 
action which requires the revealing of sources, then I take 
a very jaundiced view of that kind of action. Unless, 
unless it is strictly-—and this would be a very narrow area— 
strictly in the area where there was a major crime had 
been committed and where the subpoenaing of the notes 
had to do with information dealing directly with that 
crime.” See New York Times, May 2, 1971, at 66.

'^Biirdick V. United States, 236 U. ,S. 79 (1915), and Curtin v. 
United States, 236 U. S. 96 (1915), concerned a front-page story in 
the New York Tribune of December 31, 1913, reporting that Lucius 
N. Littauer, a wealthy former Congressman, and Mrs. W. Ellis Corey, 
wife of a former president of the U. S. Steel Corporation, were being 
mvestigated on charges of having smuggled jewelry into the country. 
Burdick, the city editor of the Tribune, and Curtin, its ship-news 
reporter, were summoned before a grand jury investigating customs 
irauds and asked to divulge the source of their information. Both 
refused to answer, invoking their rights under the Fifth Amendment 
not to be required to incriminate themselves. Thereupon the President 
issued pardons to both men for any offenses they might have com­
mitted in connection with the Littauer-Corey story, thus in effect 
attempting to irnmunize them. Both men refused the pardons and 
persisted in declining to answer on Fifth Amendment grounds. They 
were held in contempt,^ but this Court reversed the contempt judg­
ments, holding that unlike an immunity statute, a pardon carried an 
imputation of guilt, and could not be valid unless accepted. Prosecu- 
tions against Mr. Littauer and Mrs. Corey were, incidentally, suc­
cessfully concluded.



12

Nine months before the President spoke, on August 
10, 1970, the Attorney General had issued Guidelines, 39 
U. S. L. W. 2111 (1970), see Brief for the United States, 
No. 70-57, App. A., pp. 49-51, which are characterized in 
the petition for certiorari filed by the United States in the 
Caldwell case as indicating that “the Department of Justice, 
as a matter of policy, does not seek confidential information 
in the absence of an overriding need.” (p. 6) The brief 
of the United States on the micrits in Caldwell, however, 
states that the Guidelines establish internal procedures to 
be followed within the Department of Justice, and “are not 
intended to create any litigable rights in and of themselves.” 
(n. 42, p. 47)

Neither the President’s remarks nor the Guidelines have 
the force of law even within the federal system, let alone 
throughout the country. Yet they evince most authorita­
tively a developing consensus of what the law should be, 
as does, we shall show, the scholarly literature. A growing 
number of statutes point in a like direction. But the need 
for positive, national law in the premises is great and ur­
gent. The issue of a reporter’s right to withhold confidences 
from government investigation is no longer dormant—-far 
from it. Conditions have changed. The past experience of 
the press, while the issue lay dormant, is a wholly inade­
quate basis for predicting, as the amicus brief for the 
United States in Nos. 70-85 and 70-94 complacently does, 
that no great harm is more impending.

The volume of subpoenas served on reporters and news 
media has risen tremendously in the last few years, as is 
demonstrated by the Appendix to this brief. This Appendix 
consists of a list of subpoenas served on two television net­
works (NBC and CBS) and their wholly-owned stations 
in the period from 1969 through July, 1971. The list indi­
cates the nature of the investigations or cases that gave rise 
to the subpoenas. We do not contend that if the Court 
should decide the instant cases as we shall urge, every



13

subpoena of the kind of those listed in this Appendix 
would or should be quashed. The list is intended to show 
the magnitude of what reporters and the media have re­
cently been faced with and may expect to continue to be 
faced with. It shows also the miscellany of instances in 
which subpoenas are now issued, as a first resort, to report­
ers and to the news media which employ them. The typical 
subpoena does not fall in the “very narrow area” of major 
crimes of which, as we understand his remarks, the Presi­
dent spoke. See supra, p. 11. It does not proceed from 
any urgent sense that the occasion is a special one, of 
overriding importance and need. Rather it has become 
a matter almost of routine. There is an alarming and novel 
tendency abroad, in the disapproving words of the Attorney 
General’s Guidelines, supra, to use the nevcspaper or radio 
and TV reporter as a “spring board for investigations,” and 
to turn him into “an investigative arm of the government.” 
The pressure is enormous, and grave and pervasive conse­
quences will follow if the decision of the instant cases does 
not ease it.

II.

THE RIGHT OF READERS AND VIEWERS FREELY TO 
BE INFORMED BY PRINT OR ELECTRONIC NEWS MEDIA 
IS ABRIDGED, IN VIOLATION OF THE FIRST AND FOUR­
TEENTH AMENDMENTS, IF STATE OR FEDERAL GOVERN­
MENTS CAN COMMONLY COMPEL REPORTERS FOR SUCH 
MEDIA TO IDENTIFY CONFIDENTIAL SOURCES OR TO 
DIVULGE INFORMATION OBTAINED IN CONFIDENCE.

A. The Constitutional Foundation of the Right
If within the firstness of the First Amendment,^ there 

is a firstness also among the interests fostered by the Free­
dom of Speech and of the Press Clause, then it is the

^See e.g., F. F rankfurter, Mr. J u stic e  H olm es a n d  t h e  
Supreme Court, 74-76 (2nd ed., 1961).



14

interest in the flow of politically relevant information to 
the public, and consequently in the freedom and efficacy of 
the process of news gathering- by print or electronic media. 
We deal here with nothing less than “the First Amendment 
goal of producing an informed public capable of conducting 
its own affairs. . . .” Red Lion Broadcasting Co. v. F. C. C., 
395 U. S. 367, 592 (1969). Above all else, the First 
Amendment “protects the freedom of those activities of 
thought and communication by which ŵe ‘govern.’ It is 
concerned, not with a private right, but with a public power, 
a governmental responsibility.® As this Court said, again 
in Red Lion Broadcasting Co. v. F. C. C., 395 U. S. at 
390 “ [T]he people as a whole retain their interest in 
free speech by radio [and, of course, in free speech by tele­
vision or by printed medium] and their collective right to 
have the medium function consistently v/ith the ends and 
purposes of the First Amendment. It is the right of the 
viewers and listeners, not the right of the broadcasters, 
which is paramount. . . . ‘[SJpeech concerning public affairs 
is more than self-expression; it is the essence of self- 
government.’ Garrison v. Louisiana, 379 U. S. 64, 74-75 
(1964). See Brennan, The Supreme Court and the Meikle- 
john Interpretation of the First Amendment, 79 Harv. L. 
Rev. 1 (1965). It is the right of the public to receive 
suitable access to social, political, esthetic, moral, and other 
ideas and experiences which is crucial here. That right 
may not constitutionally be abridged either by Congress or

®Meiklejohn, The First Amendment Is an Absolute, 1961 Su ­
p r em e  Court R ev iew  245, 255. The passage goes on; ‘Tn the spe­
cific language of the Constitution, the governing activities of the 
people appear only in terms of casting a ballot. But in the deeper 
meaning of the Constitution, voting is merely the external expression 
of a wide and diverse number of activities by means of which citizens 
attempt to meet the responsibilities of making judgments, which that 
freedom to govern lays upon them.”



15

by the F. C. C.” Or by the executive, or by a state, or by a 
grand jury, or by a court.*

As the Court’s quotation from Garrison v. Louisiana, 
379 U. S. at 76-77, indicates, the conception of the First 
Amendment manifested in Red Lion Broadcasting Co. v. 
F. C. C., supra, also informed New York Times Co. v. 
Sullivan, 376 U. S. 254 (1964), and has informed its 
progeny. The “profound national commitment to the prin­
ciple that debate on public issues should be uninhibited, 
robust, and wide-open,” New York Times Co. v. Sullivan, 
376 U. S. at 270, and a profound national commitment 
to the free flow of information to news media and through 
them to the public—these two commitments are twins, or­
ganically joined and unseverable.

The same vital public interest in wide-open, informed 
debate was at the basis of the Court’s statement in Kent 
V. Dulles, 357 U. S. 116 (1958), and its holding in Aptheker 
V. Secretary of State, 378 U. S. 500 (1964), that the Fifth 
Amendment protects a right to travel.® The Court in Kent 
V. Dulles plainly had in mind the people’s need and right 
to be informed, so that “those activities of thought and

^No problem of standing arises here, any more than it did in 
Red Lion Broadcasting Co. v. P. C. C., supra. The right asserted 
is conceptually that of the public, and not of Caldwell, the respondent 
reporter in No. 70-57, or of Branzburg or Pappas, the reporters in 
Nos. 70-85 and 70-94. But it is beyond question that “the challenged 
action has caused [Caldwell, Pappas and Branzburg] injury in fact,” 
Data Processing Service v. Camp, 397 U. S. 150, 152 (1970), and 
hence that Article III jurisdiction exists. Cf. Flast v. Cohen, 392 
U. S. 83 (1968). The right of the public is “likely to be diluted or 
adversely affected”, Griswold v. Connecticut, 381 U. S. 479, 481 
(1965), unless it is considered in such a suit as this, involving those 
who exercise the right in the public’s behalf. Cf. N. A. A. C. P. v. 
Alabama, 357 U. S. 449 (1958) ; Barrows v. Jackson, 346 U. S. 249 
(1953) ; Pierce v. Society of Sisters, 268 U. .S. 510 (1925) ; Trua.v v. 
Raich, 239 U. S. 33 (1915).

®See also Lynd v. Rusk, 389 F. 2d 940 (D. C. Cir. 1967) ; cf. 
Zemel v. Rusk, 381 U. S. 1 (1965).



16

communication by which we ‘govern’ might be fostered 
and enhanced. Supporting its premise, which had been 
conceded by the Solicitor General, that the Fifth Amend­
ment protects a right to travel, the Court quoted, at 357 
U. S. 126-27, from Z. Ch a fe e , T hree  H um a n  R ig h ts  in  
THE Co n stitu tio n  of 1787, 195-196 (1956): “Foreign 
correspondents and lecturers on public affairs need first­
hand information. Scientists and scholars gain greatly 
from consultations with colleagues in other countries. Stu­
dents equip themselves for more fruitful careers in the 
United States by instruction in foreign universities. . . .  In 
many different ways direct contact with other countries 
contributes to sounder decisions at home.”

The people’s right to be informed by print and elec­
tronic news media is thus the central concern of the First 
Amendment’s Freedom of Speech and of the Press Clause. 
Our submission is that if an obligation is imposed by law 
on a reporter of news to disclose the indentity of confidential 
sources or divulge other confidences that come to him in 
the process of news gathering, the reporter’s access to news, 
and therefore the public’s access, will be severely constricted 
and in some circumstances shut off. The reporter’s access 
is the public’s access. He has, as a citizen, his own First 
Amendment rights to self-expression, to speech and to 
associational activity, but they are not in question here. 
The issue here is the public’s right to know. That right is 
the reporter’s by virtue of the proxy which the Freedom 
of the Press Clause of the First Amendment gives to the 
press on behalf of the public.

B. T h e Factual Foundation of the Right

Whether the proxy covers a case such as this, or in 
other words, whether the reporter’s access to information

®Meiklejohn, The First Amendment Is an Absolute, supra, n. 3.



17

is, in the circumstances, the public’s access, and whether an 
obligation imposed by law on the reporter to disclose the 
identity of confidential sources and to divulge other confi­
dences will constrict or shut ofif his and the public access to 
news—these are questions of fact, both “adjudicative fact,”  ̂
and “constitutional fact.”®

Early in his career, when he was trying to persuade his 
colleagues that wise constitutional judgments must rest on 
carefully and realistically built factual foundations, Justice 
Brandeis wrote: “The judgment should be based upon a 
consideration of relevant facts, actual or possible—E x  
facto jus oritur. That ancient rule must prevail in order 
that we may have a system of living law.”® A few years 
later, he added: “Sometimes, if we would guide by the 
light of reason, we must let our minds be bold. But, in this 
case, we have merely to acquaint ourselves with the art of 
bread making and the usages of the trade. . . In this 
case, the Court has merely to acquaint itself with the art 
of newsgathering and the usages of the trade.

The adjudicative facts were found by District Judge 
Zirpoli in No. 70-57. His specific findings, which follow.

’̂ See Karst, Legislative Facts in Constitutional Litigation, 1960 
S u p . Ct . R ev . 75, 77.

sSee Note, 49 H arv. L. R ev . 631, 632 (1936).
^Adams v. Tanner, 244 U. S. 590, 597, 600 (1917) (Brandeis, J., 

dissenting).
^<>Burns Baking Co. v. Bryan, 264 U. S. 504, 517, 520 (1924) 

(Brandeis, J., dissenting). Justice Brandeis’ “sense of the controlling 
vitality of facts . . . produced the so-called Brandeis brief at the bar 
and its counterpart in his richly documented opinions on the bench. 
. . .  In his opinions the technique of the Brandeis brief was gener­
ally employed to sustain the legislative judgment. But on occasion 
the same technique, reflecting the same insatiable passion to know, 
was employed to suggest that what had once been constitutional 
might be questionable in the light of facts that had markedly 
changed.” P. F r eu n d , On U n d ersta n d in g  t h e  S u pr em e  Court 
51 (1951).



18

were adopted by the Court of Appeals for the Ninth Cir­
cuit :

“ (3) That confidential relationships of this sort are 
commonly developed and maintained by professional 
journalists, and are indispensable to their work of gath­
ering, analyzing and publishing the news.

“ (4) That compelled disclosure of information re­
ceived by a journalist within the scope of such confi­
dential relationships jeopardizes those relationships and 
thereby impairs the journalist’s ability to gather, ana­
lyze and publish the news;

“ (5) Specifically, that in the absence of a protec­
tive order by this Court delimiting the scope of in­
terrogation of Earl Caldwell by the grand jury, his 
appearance and examination before the jury will severely 
impair and damage his confidential relationship with 
members of the Black Panther Party and other mili­
tants, and thereby severely impair and damage his 
ability to gather, analyze and publish news concerning 
them; and that it will also damage and impair the abili­
ties of other reporters for The New York Times Com­
pany and others to gather, analyze and publish news 
concerning them. . . .” 311 F. Supp. at 361-62.

These findings are solidly grounded in affidavits from 
working reporters, who testified of their own vivid knowl­
edge to the crucial role played in their profession by con­
fidential sources and confidential information, and to the 
effect that the imposition by law of an obligation to disclose 
and divulge would have. As telling as any is the affidavit 
of Walter Cronkite;

“3. In doing my work, I (and those who assist me) 
depend constantly on information, ideas, leads and 
opinions received in confidence. Such material is es-



19

sential in digging out newsworthy facts and, equally 
important, in assessing the importance and analyzing 
the significance of public events. Without such ma­
terials, 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 me 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.. . .” (A. 52- 
53)“

Neither the “adjudicative” nor the more far-ranging 
“constitutional” facts can be proved with mathematical 
certainty. Constitutional adjudication is not an exact sci­
ence. But the “constitutional” as well as the “adjudicative” 
facts can be established to a moral if not a mathematical 
certainty. It is no novelty that “lacking the possibilities 
of controlled experimentation,” courts resort “to the only

^^The government in its brief here (p. 16) chooses to read the 
Cronkite affidavit as showing that “ [a]s a general matter, it is not 
that which is communicated to the reporter that is intended to be 
withheld from publication, but only the identity of the communi­
cant.” This reading is achieved by italicizing the phrase, “without fear 
of exposure,” at the end of the next to last sentence quoted above. 
(Brief for the United States, p. 17). Mr. Cronkite, the government 
handsomely concedes, makes his point “with customary precision,” 
iDUt he made it in this instance without the unintended precision 
imputed to him by the italics, as the government, of course, acknowl­
edges. This and other affidavits, as District Judge Zirpoli found 
and as the government itself allows later on in its brief (pp. 18 
et seq.), emphasize the necessity for respecting both the confidential 
identity of a news source, “and other information of a confidential 
nature.” (p. 19) This can be emphasized in the Cronkite affidavit 
by italicizing, not the vrords the government chose to underline, but 
the words with which that same next to last sentence begins: ‘‘The 
material that I obtain in privacy and on a confidential basis is given 
to me on that basis. . . The uses of such material are pointed out 
by Mr. Cronkite ( “leads,” “opinions” ), and are discussed infra at 
pp. 23 et seq.



20

empiric ground of study available~the actual conduct of 
men in society ,reasonable men, whose expectations and 
conduct may be taken as general, see infra pp. 24-25. The 
professional literature of journalism bears ample witness 
to the pervasiveness of confidential relationships between 
reporters and their sources, to their importance and the 
importance of safeguarding their integrity, and to the 
sheer volume of news that is derived from them.

Arthur Krock, for example, has written that:
“Another attribute is peculiarly necessary for 

this work: a Washington correspondent must keep 
more rigidly the confidence of news sources, for it is 
in confidence that much important news is acquired 
which othervcise would be withheld from the public 
that has a right to know it. One breach of such 
faith, and that news source is closed.” (A. K rock, 
T h e  N ew spaper— I ts M a k in g  and I ts M e a n in g  
45 (1945).

The point recurs elsewhere, particularly in memoirs of 
journalists, with varying illustrations. See, e.g., F. Ch a l­
mers, A  Gen tlem a n  of t h e  P r ess: T h e  B iography  
OF Colonel J o h n  Bayne  M acClean  74-75 (1969); H. 
K lurfeld , Be h in d  t h e  L in e s : T h e  W orld of D rew  
P earson 50, 52-55, 142 (1968); A. K rock, M e m o ir s : 
S ix ty  Y ears on t h e  F ir in g  L in e  181, 184-85 (1968); 
E. L arsen , F irst  W it h  T h e  T r u th  22-23, 94-95 (1968) ; 
R. O ttley , T h e  L onely  W arrior— T h e  L if e  and 
T im es  of R obert S. A bbott 143-45 (1955); G. Seldes, 
N ever T ire  of P rotesting  83-84 (1968); L. S nyder and 
R. M orris, A  T reasury of Great R eporting  180 
(1962) (“The New York Times Exposes Boss Tweed”);

i^Kadish, Methodology and Criteria in Due Process Adjudica­
tion—A Survey and Criticism, 66 Y a le  L. J. 319, 354 (1957).



21

C. L. Sulzberger, A L ong R ow of Candles, M em ­
oirs AND D ia ries , 1934-54 xvi, 24, 241, 249 (1969). Books 
addressed to the profession rather than emanating from it 
are equally clear in emphasizing the necessity of preserv­
ing the confidential relationship between reporters and their 
informants. Typical of the teachings in these works is the 
admonition of C. MacDougall that:

“The reporter who didn’t live up to this code [of 
non-disclosure of confidential material] would find 
himself without ‘pipelines,’ and his effectiveness 
would be reduced greatly. Experience proves that 
the person with whom the reporter ‘plays ball’ on 
one occasion is likely to supply the tip which leads 
to a better story on another.” (C. M acD ougall, 
N ewsroom P roblems and P olicies 301 (1964).)

Or, as Hugh C. Sherwood has written:
“This brings up the one rule that can be flatly 

and unequivocally stated in regard to off-the-record 
interviews. Once you have agreed to interview some­
one on this basis, keep your word—you will probably 
never get another interview from the person if you 
don’t.” (H. S herwood, T h e  J ournalistic  I nter­
view  89 (1969)).

See, also D. Cater, T h e  F ourth  Branch  of Govern­
m en t  124-25 (1959).

The sum of it all, as the amicus brief for the Columbia 
Broadcasting System in the Supreme Judicial Court of 
Massachusetts in No. 70-94 pointed out, is that reporters 
are able to get much indispensable information only on the 
understanding that confidence may be reposed in them 
because they can and will keep confidences. Such indis­
pensable information comes in confidence from office



22

holders fearful of superiors, from businessmen fearful of 
competitors, from informers operating at the edge of the 
law who are in danger of reprisal from criminal associates, 
from people afraid of the law and of the government, some­
times rightly afraid, but as often from an excess of caution, 
and from men in all fields anxious not to incur censure for 
unorthodox or unpopular views, whether their views would 
be considered unorthodox and be unpopular in the commu­
nity at large, or merely in their own group or subculture. 
The assurance of confidentiality elicits valuable background 
information in important diplomatic and labor negotiations 
and in many similar situations where disclosure would ad­
versely affect the informant’s bargaining position. Public 
figures of all sorts, including government officials, political 
candidates, corporate officers, labor leaders, movie stars and 
baseball heros, who will speak in public only in carefully 
guarded words, achieve a more informative candor in pri­
vate communications.

Claims to a right to withhold confidential information
“are far more credible for newsmen than they are 
for the other professionals. Most disclosures are 
made to an attorney because the client wants the 
best possible advice and because he realizes that he 
will be the loser if he withholds the raw materials 
on which such advice should be predicated. The 
patient tells all to his physician because he wants 
to be diagnosed and treated properly. . . . The per­
sons who make such communications probably know 
very little about the degree to which their confi­
dences may be disclosed in the future; but if they 
did, the immediate interest in getting good advice 
would probably prevail, the communication would 
be made, and the professional relationships would 
remain viable.



23

“In the case of a journalist . . .  the informant 
does not risk his health or liberty or fortune or soul 
by withholding information. He is likely to be 
moved by baser motives—spite or financial reward 
—or, on occasion, by a laudable desire to serve the 
public welfare if it can be done without too much 
jeopardy. His communication, more than the others, 
is probably the result of a calculation and more 
likely to be affected by the risk of exposure. In this 
instance, compelling the disclosure of a confidential 
source in one highly publicized case really is likely 
to restrict the flow of information to the news media. 
And by doing so, it may well interfere with the 
freedom of press guaranteed by the First Amend­
ment.” Goldstein, Newsmen and their Confidential 
Sources, N ew  R e pu b l ic , March 21, 1970, pp. 13, 
14.

In Garland v. Torre, 259 F. 2d 545 (2d Cir. 1958), 
cert, denied, 358 U. S. 910 (1958), which we will discuss 
further at a later point in this brief, Judge (now Mr. Jus­
tice) Stewart, sitting by designation in the Second Circuit, 
began his opinion by accepting “the hypothesis that com­
pulsory disclosure of a journalist’s confidential sources of 
information may entail an abridgement of press freedom by 
imposing some limitation upon the availability of news.” 
259 F. 2d at 548. And the Attorney General’s Guidelines 
issued on August 11, 1970, supra, stated: “The Department 
of Justice recognizes that compulsory process in some cir­
cumstances may have a limiting effect on the exercise of 
First Amendment rights.” 39 U. S. L. W. at 2111.

C. The Perimeters of the Right
Conceivably one may argue that “a limiting effect on the 

exercise of First Amendment rights” is in the circumstances



24

acceptable. We do not believe it can be accepted in light 
of applicable precedents, nor, on the whole, as we read his 
Guidelines, does the Attorney General. But in any event, 
the fact is indisputable that compulsory process to force 
newsmen to identify confidential sources or divulge confi­
dential information does have “a limiting effect on the 
exercise of First Amendment rights.” Of course, groups 
and individuals who wish to communicate with the public 
through the news media, and particularly groups and in­
dividuals who wish to propagandize the public through the 
media, will continue to do so, regardless. They will continue 
to bring themselves and their views to public attention at 
times and in ways of their choice. As Judge Merrill wrote 
in the opinion of the Court of Appeals in No. 70-57, how­
ever, that is not the point. First Amendment interests are 
not adequately safeguarded “as long as potential news 
makers do not cease using the media as vehicles for their 
communication with the public.” The First Amendment 
“means more than that. It exists to preserve an ‘untram­
meled press as a vital source of public information,’ 
Grosjean v. American Press Co., 297 U. S. 233, 250 
(1936). . . .  It is not enough that the public’s knowledge 
of groups such as the Black Panthers should be confined 
to their deliberate public pronouncements or distant news 
accounts of their occasional dramatic forays into the public 
view.” 434 F. 2d at 1084. The public’s right to know is 
not satisfied by news media which act as conveyor belts for 
handouts and releases, and as stationary eye-witnesses. It 
is satisfied only if reporters can undertake independent, ob­
jective investigations.

There is not even a surface paradox in the proposition, 
as it might somewhat mischievously be put, that in order 
to safeguard a public right to receive information it is 
necessary to secure to reporters a right to withhold infor-



25

mation. Clearly the purpose of protecting the reporter from 
disclosing the identity of a news source is to enable him to 
obtain and publish information which would not otherwise 
be forthcoming. So the reporter should be given a right to 
withhold some information^—the identity of the source— 
because in the circumstances, that right is the necessary 
condition of his obtaining and publishing any information 
at all. Information other than the identity of the source 
may also need to be withheld in order to protect that iden­
tity. Obviously, something a reporter learned in confidence 
may give a clue to his source, or indeed pinpoint it. That 
may be the very reason why the source imposed an obliga­
tion of confidence on the reporter.

Yet off-the-record information obtained in confidence 
is of the utmost importance to the performance of the 
reporter’s function. It very frequently constitutes the 
background that enables him to report intelligently. It 
affords leads to publishable news, and understanding of 
past and future events. News reporting in the United 
States would be devastatingly impoverished if the countless 
off-the-record and background contacts maintained by re­
porters with news sources were cut off. Moreover, even 
where information other than the identity of the source 
would be unlikely to enable anyone to trace that identity, 
the information may sometimes need to be withheld, if 
given in confidence, in order to make it possible for the 
reporter to maintain access to the source, and thus obtain 
other, publishable news. It is true of numerous news sources 
that if they cannot talk freely, and partly in off-the-record 
confidence, they will not talk at all, or speak only in hand­
outs and releases. For all these reasons, it should make no 
difference in deciding whether to protect a newsman from 
disclosing the identity of sources or divulging other con­
fidences that in a given instance any part of the informa-



26

tion that is sought from him has or has not been published.
Occasions may arise when news sources will refuse to 

communicate with a reporter, or with a news medium, or 
with all reporters, for idiosyncratic, ideological, or paranoid 
reasons. But the effect of this species of impediment on the 
free flow of information is neither pervasive nor pre­
dictable; and it is not in issue in the cases now before the 
Court. These cases do not call for tailoring a reporter’s 
First Amendment protection to the whim, the irrational 
anxiety, the arbitrary edict, the ideological fixation, or the 
paranoia of one or another news source. In no way do 
these cases raise the question whether reporters in the pur­
suit of their profession, or the government in the discharge 
of its responsibility to administer justice, should accept a 
variety of idiosyncratic vetoes.

The First Amendment standard of protection which these 
cases call for and for which we contend turns, not on the 
whim of a given news source, but on the integrity of the 
confidential relationship maintained by reporters with all 
manner of news sources. This relationship, and hence the 
resulting First Amendment standard of protection, is de­
fined by objective criteria. And the standard of protec­
tion is self-limiting in practice as well as conceptually, be­
cause a reporter who gets no news out of a source with 
whom he has a confidential relationship will soon abandon 
it. If he maintains the confidential relationship, then by 
a hypothesis grounded in the imperatives of the reporter’s 
profession, we may assume that the source produces news 
for the public benefit. The protection of the First Amend­
ment is thus tailored to attitudes shared across the board 
by news sources of all kinds. In the aggregate, if such 
a standard of protection for the reporter is not adopted, the 
total body of news to which the public has access will 
notably diminish. When in other contexts this Court has 
dealt with a chilling effect on First Amendment interests, it



27

has found such an effect by taking account of attitudes and 
reactions that were rational and therefore likely to be wide­
spread. Compare, e.g., Elfbrandt v. Russell, 384 U. S. 11 
(1966), Cramp v. Board of Public Instruction, 368 U. S. 
278 (1961), and Shelton v. Tucker, 364 U. S. 479 (1960), 
with Law Students Civil Rights Research Council v. 
Wadmond, 401 U. S. 154 (1971). The standard we con­
tend for is equally a reasonable man’s standard, whose 
points of reference are expectations and attitudes that are 
commonly held and that will have pervasive effect.̂ ®

As Dean Goldstein, among others, has noted, Gold­
stein, Newsmen and their Confidential Sources, supra, re­
porters couple an insistence on protection of their confi­
dences with an insistence on access to the confidences of 
others. On the surface, the position may be viewed as 
anomalous. A certain asymmetry, a lack of even-handed­
ness, a certain partiality to self may, at first blush, be de­
tected in the reporter’s position. But, of course, there is 
no insistence on, and we do not in fact allow, unrestricted 
access by reporters to others’ confidences. And the re­
porter’s position in seeking access will appear self-serving 
only if the focus is on the reporter as an individual pur-

^®The problem of investigations by government directed at a 
reporter’s or editor’s or writer’s work product which is not derived 
on a confidential basis or from confidential sources is outside the 
scope of the questions presented in No. 70-57 and the companion 
cases now before the Court. Undoubtedly, we believe, the First 
Amendment guarantees a degree of autonomy to the reporter, the 
editor, the writer, the speaker, the teacher, see, e.g., Sweesy v. New 
Hampshire 354 U. S. 234, 255 (1957) (Frankfurter, J., concurring) 
sufficient to insulate his work product and the process by which he 
pursues his profession from government scrutiny. See the action of 
the FIouse_ in recommitting and thus defeating a resolution to cite 
CBS and its President for contempt for failure to comply with a 
“work-product” subpoena, and particularly remarks of Representa­
tive Celler, 117 C ong . R f.c. 6639-6670, 6643-6644 (daily ed., July 13, 
1971). But the considerations on which this protection rests, though 
related, are broader than, and in some respects different from, those 
here under discussion.



28

suing his own interest, to wit, psychic and material gain 
from the practice of his profession; and if, in turn, the 
focus is on the office-holder, or labor leader, or university 
president, or what have you, to whose confidences the re­
porter seeks access, as equally an individual seeking ad­
vancement and financial reward. If nothing more than this 
were in play between the reporter and his professional ad­
versaries, there would be some justice in the view that the 
scales ought to be even. When the focus, however, in the 
case of both the reporter and his professional adversaries, 
shifts, as it ought, to the function each performs, then the 
earlier appearance vanishes.

The interest of both the reporter and his adversaries 
is joined to the function of each, so that each may perform 
it with zeal. The reporter seeks access to confidences. The 
news-maker seeks control over the news he makes. Neither 
alone, it may be, represents the total public interest, which 
is fully served only by the contest between them. But the 
weight of the First Amendment is on the reporter’s side, 
because the assumption underlying the First Amendment 
is that secrecy and the control of news are all too inviting, 
all too easily achieved, and in general, all too undesirable. 
The First Amendment weds the public interest in the flow 
of news to the reporter’s professional interest, and it is 
this public interest, not the reporter’s, that overrides what 
might in private relationships seem like the dictates of 
fairness and equity. The professional interest of the re­
porter is, in an apposite phrase of Madison, “a centinel over 
the public rights.” ( T h e  F ederalist N o. Si (Cooke ed. 
1961, pp. 347, 349). If insistence on a symmetry of priv­
ileges were decisive in the relationship between news media 
and those who are and make news. New York Times Co. y. 
Sullivan, supra, could not have been decided as it was, let 
alone Rosenhloom v. Metromedia, Inc., 403 U. S. 29 
(1971).



29

III.

A REPORTER CANNOT, CONSISTENTLY WITH THE 
CONSTITUTION, BE FORCED TO DIVULGE CONFIDENCES 
TO A GOVERNMENTAL INVESTIGATIVE BODY UNLESS 
THREE MINIMAL TESTS HAVE BEEN MET. OF THESE, 
THE FIRST TWO ARE PROCEDURAL, REQUIRING ESTAB- 
LISHMENT OF PROBABLE CAUSE THAT A CRIME HAS 
BEEN COMMITTED OF WHICH THE REPORTER HAS 
SPECIFIC KNOWLEDGE, AND A SHOWING OF THE GOV­
ERNMENT’S INABILITY TO OBTAIN THE INFORMATION 
SOUGHT FROM THE REPORTER BY ALTERNATIVE 
MEANS. APPLICATION OF THE TWO PROCEDURAL 
TESTS IS SUFFICIENT TO DISPOSE OF THE CASES NOW 
BEFORE THE COURT.

A. The Three Tests

The three minimal tests we contend must be met before 
testimony divulging confidences may be compelled from a 
reporter are these: 1. The government must clearly show 
that there is probable cause to believe that the reporter 
possesses information which is specifically relevant to a 
specific probable violation of law. 2. The g'overnment must 
clearly show that the information it seeks cannot be obtained 
by alternative means, which is to say, from sources other 
than the reporter. 3. The government must clearly demon­
strate a compelling and overriding interest in the infor­
mation.

In none of the cases now before the Court have both 
the first and second of these tests been met, let alone the 
third. Our contention is that all three must be met, at the 
minimum, to satisfy the First and Fourteenth Amendments. 
We will discuss the first two tests in this section of our 
brief, and the third in the immediately following section.



30

B. Limits of the Power to Compel Testimony

We have established, we believe, the nature of the 
critical First Amendment interest that is in play in No. 
70-57 and in Nos. 70-85 and 70-94. These, then, are not 
cases of the power and function of a grand jury, or of the 
reach of compulsory process against assertions of common 
law privileges, any more than New York Times Co. v, 
Sullivan^ supra^ was a case calling for “application of the 
traditional concepts of tort law,”^̂  or Bates v. Little Rock, 
361 U. S. 516 (1960), was a license tax case, or 
N. A. A. C. P. V. Alabama, 357 U. S. 449 (1958), was a 
foreign corporation case, or Schneider v. State, 308 U. S. 
147 (1938), was a case concerning the power to keep streets 
clean and unlittered. These are First Amendment cases.

If the instant cases touched on no other interests, what 
we have said so far would make an end of them. But an­
other interest is involved, the interest in the administration 
of justice, and more generally, in the availability of every 
man’s relevant evidence to duly constituted government 
investigative bodies. See Blair v. United States, 250 U. S. 
273 (1919) ; see also Blackmer v. United States, 284 U. S. 
421 (1932). Even First Amendment values do not always 
override everything. See Rideau v. Louisiana, 373 U. S. 723 
(1963); Estes v. Texas, 381 U. S. 532 (1965) ; Sheppard 

V. Maxwell, 384 U. S. 333 (1966); and compare 
N. A. A. C. P .v . Alabama, supra, with Bryant v. Zimmer­
man, 278 U. S. 63 (1928). On the other hand, the rule that 
each man’s evidence should be available to the government 
in proper proceedings is no absolute either, not when a 
grand jury is the body demanding evidence, or in other 
contexts. The rule often encounters the barriers of the

^m onitor Patriot Co. v. Roy, 401 U. S. 265, 275 (1971).



31

Fifth Amendment/" of the Fourth/® of the F irst/’’ and of 
the common law privileges/® including, it may be, the rela­
tively novel psychotherapist-patient and clergymen’s priv­
ileges/®

The common law privileges and their extensions suggest 
the analogous need to protect confidences reposed in a re­
porter. But the analogy is imprecise, and we do not by any 
means place our chief reliance in it. The policy behind the 
common law privileges has to do with fostering certain 
private relationships, which are favored, to be sure, but 
which are scarcely comparable to the public interest in a 
free and effective press. Their particular rationales con­
trol the nature of the common law privileges and the ex­
ceptions to them, and it would be difficult, we believe, to 
reason from them too closely to a protection whose rationale 
is different. Moreover, the common law privileges some­
times survive simply because they are ancient, even though 
their empirical foundations may be shaky. The empirical 
foundation of the reporters’ claims to protection in the 
instant cases is solid and up-to-date. As applied to these 
cases, we use the word “privilege” in the sense in which 
it is used in Barr v. Matteo, 360 U. S. 564, 568 (1959), 
and in New York Times Co. v. Sullivan, supra, Z76 U. S. 
at 382-83.

^®See Blmi v. United States, 340 U. S. 159 (1950); Quinn v. 
United States, 349 U. S. 155 (1955); Curcio v. United States, 354 
U. S. 118 (1957) ; Malloy v. Hogan, 378 U. S. 1 (1964).

^®See Silverthorne Lumber Co. v. United States, 251 U. S. 385 
(1920).

^^See Levinson v. Attorney General, 321 F. Supp. 984 (E. D. 
Pa, 1970).

^®See Committee on Rules of Practice and Procedure of Judicial 
Conference of the United States, Revised Draft of Proposed Rules 
of Evidence for the United States Courts and Magistrates (1971), 
Rule 503, cf. Hickman v. Taylor, 329 U. S. 495 (1947) ; Rule 505, 
cf. Hawkins sr. United States, 358 U. S. 74 (1958); Rule 1101.

^®See Revised Draft of Proposed Rules of Evidence, supra. Rules 
504, 506.



32

Perhaps the nearest analogy to the instant cases among 
customary privileges is the privilege, in the language of 
the Committee on Rules of Practice and Procedure, of 
every person “to refuse to disclose the tenor of his vote 
at a political election conducted by secret ballot unless the 
vote was cast illegally.” ®̂ Here, too, the rationale is a 
public interest of the highest importance, grounded in the 
First Amendment. The government’s qualified privilege 
covering military and state secrets, see United States v. 
Reynolds, 345 U. S. 1 (1953), also rests on considerations 
of high public interest rather than on a policy of fostering 
private relationships, and thus also bears a resemblance to 
the reporter’s claim to protection. So does the government’s 
privilege not to disclose the identity of informers. In this 
instance the resemblance is striking, because the informer 
privilege is justified by a prediction that in its absence a 
flow of important information would be dammed. Interest­
ingly enough, while the informer privilege is necessarily 
subject to qualifications where an informer’s identity goes 
to the central issue of a criminal trial, see Roviaro v. United 
States, 353 U. S. 53 (1957), cf. Smith v. Illinois, 390 U. S. 
129 (1968), the qualifications do not apply at earlier stages 
of a criminal proceeding more nearly similar to a grand 
jury investigation. See United States v. Harris, 403 U. S. 
573 (1971); United States v. Ventresca, 380 U. S. 102, 
108 (1965); Aguilar v. Terras, 378 U. S. 108, 114 (1964) ; 
McCray v. Illinois, 386 U. S. 300 (1967).

Plainly, then, the power to compel testimony is no more 
an absolute than many another constitutional power or 
limitation. Indeed the power to compel testimony yields

®°See Revised Draft of Proposed Rules of Evidence, supra, n. 18, 
Rule 507; Nutting, Freedom of Silence: Constitutional Protection 
Against Governmental Intrusion in Political Affairs, 47 M ic h . L. 
R ev . 181, 191 (1948).



33

to conflicting considerations much more commonly than 
does the First Amendment. So the Court recognized in 
Blair v. United States, supra, when having referred to the 
right against self incrimination as barring certain inquiries, 
the Court added: . some confidental 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.” 250 U. S. at 281. The First Amendment 
is, to say the least, a special reason. The problem is to 
find the proper accommodation. Cases such as Estes v. 
Texas, supra, and Sheppard v. Maxwell, supra, in which 
First Amendment values were required to yield in some 
measure, teach that incursions on the exercise of First 
Amendment rights, when permitted at all under pressure 
of the most exigent of countervailing interests, are always 
discrete, most frequently limited as to time and place, and 
altogether as narrow as it is possible to make them. Com­
pare Estes V. Texas, supra, and Sheppard v. Maxwell, 
supra, particularly 384 U. S. at 352 et seq., with Dorfman 
V. Meissner, 430 F. 2d 558 (7th Cir. 1970).

_ Dorfman V.  Meissner, the Court of Appeals held that it was 
within the discretion of a district court to prohibit photographing and 
broadcasting inside courtrooms as well as in areas adjacent to them,
^ m extension of such a prohibition to the entire floor on
which a courtroom .was located, as well as to the area surrounding 
the elerators on the ground floor, was also permissible as a measure 
reasonably calculated to promote the integrity of the court’s pro­
ceedings. However, the Court of Appeals held that the extension of 
such a prohibition to the floors of a federal building where there were 
no courtrooms, and to the large center lobby on the ground floor of 
the building, as well as to the plaza outside it, was broader than v^as 
necessary to accomplish the purpose, and hence violated the First 
Amendment. “The achievement of a legitimate governmental object 
cannot be pursued by means that broadly stifle fundamental personal 
liberties when the end can be more narrowly achieved. The breadth 
of legislative abridgement must be viewed in the light of less drastic 
means for achieving the same basic purpose,’ ” said the Court of 
Appeals, quoting from Shelton v. Tucker, 364 U. S. 479, 488 (1960).



34

C. Procedure, the Overbreadth Doctrine, and the R u le  
o f the Compelling Interest

Nothing is more characteristic o£ the law of the First 
Amendment over the years than this Court’s resourceful­
ness in cushioning clashes between First Amendment 
values and competing interests. The Court’s concern has 
been as much with process, with accommodations that take 
a procedural form (using the term in a large sense), as 
with the making of ultimate choices between contending 
interests. Faced with ineluctable, fundamental tensions 
that are bound to persist, the Court as often as not has 
attempted to ease rather than finally resolve them. Thus 
the Court has exacted the strictest, even the extraordinary, 
observance of legislative, judicial and administrative pro­
cedures, to the end of moderating or avoiding a clash with 
First Amendment values. The Court has, as occasion of­
fered, devised special procedures tailored to this end. The 
upshot, happily, in the jurisprudence of this Court is that 
a whole series of defensive procedural entrenchments lie 
between the First Amendment and interests adverse to 
it. Hence the direct, ultimate confrontation is rare, and 
when it does occur, limited and manageable. Of course, 
procedure can have substantive consequences, and a pro­
cedural or otherwise penultimate accommodation may be 
achieved at the sacrifice of the periphery of an interest 
competing with the First Amendment. But the conse­
quences are not those that would flow from the collision of 
ultimates. The accommodation called for in the instant 
cases is exactly of the sort this Court has so often fashioned 
in the area of the First Amendment.

Examples abound, and we will attempt to deal only 
with a number which are nearest, because they concern the 
investigative power of government. In United States v. 
Rumely, 345 U. S. 41 (1953), the secretary of an organiza­
tion that sold books “of a particular political tendentious-



35

ness”, 345 U. S. at 42, refused to disclose to a Congres­
sional committee the names of persons who bought in bulk 
for further distribution. The Court upheld the refusal to 
answer by construing the House resolution that created 
the investigative committee as inapplicable, thus in effect 
holding that before it could in this fashion affect the 
exercise of First Amendment rights. Congress would have 
to write the charters of its investigative committees in 
extraordinarily explicit language, beyond what is normally 
required. “So to interpret,” said the Court in an oft-quoted 
sentence, “is in the candid service of avoiding a serious 
constitutional doubt.” 345 U. S. at 47. This was the 
approach also of Watkins v. United States, 354 U. S. 
178 (1957), and it was an approach not repudiated in 
Barenblatt v. United States, 360 U. S. 109 (1959), which 
merely shifted the procedural focus, so to speak. See also 
Greene v. McElroy, 360 U. S. 474 (1959).

The method of Rumely and Watkins is a near cousin to 
if distinguishable at all from—the overbreadth doctrine, 

and indeed the two merged in the prevailing opinion in 
Sweezy v. New Hampshire, 354 U. S. 234 (1957). The 
overbreadth doctrine requires that interests conflicting with 
the First Amendment be vindicated, if at all, by statutes, 
ordinances, or other regulations that are precise, narrow, 
closety drafted, and so designed as to make the least possible 
inroad on the First Amendment. What the overbreadth 
doctrine seeks to guard against is a predicted chilling effect 
on the exchange of ideas and the freedom of association. 
Just so, in the instant cases, requiring a reporter to dis­
close information obtained in confidence would chill— 
chill, indeed, to the point of freezing— a substantial flow 
of news to the public. Most notable perhaps for present 
purposes among overbreadth cases is the line of loyalty 
oath decisions, in which something in the nature of the 
investigative power of government was in play. See Cramp



36

V. Board of Public Instruction, supra; Baggett v. Bullitt, 
377 U. S. 360 (1964) ; Whitehill v. Elkins, 389 U. S. 54 
(1967) ; Elfbrandt v. Russell, supra; Keyishian v. Board 
of Regents, 385 U. S. 589 (1967) ; Note, The First Amend­
ment Overbreadth Doctrine, 83 H arv. L. R ev. 844 (1970). 
See also Aptheker v. Secretary of State, 378 U. S. 500 
(1964) ; United States v. Rohel, 389 U. S. 258 (1967).

The overbreadth cases in turn shade into the group of 
decisions demanding, as it is variously phrased, a “com­
p e l l i n g , “paramount,” "̂ “s t ro n g ,in te re s t ,  in whose 
behalf alone any infringement of First Amendment values, 
however limited and circumscribed, will be allowed. Among 
the most immediately relevant of these decisions are Gibson 
V. Florida Legislative Investigation Committee, 372 U. S. 
539 (1963), DeGregory v. New Hampshire Attorney 
General, 383 U. S. 825 (1966), Bates v. Little Rock, supra; 
and N. A. A. C. P. v. Alabama, supra; see also Shelton 
V. Tucker, supra.

In Gibson, a legislative committee investigating Com­
munist activities sought to inquire into N. A. A. C. P. 
membership lists. This Court held that the president of 
the Miami branch of the N. A. A. C. P. had no obligation 
to produce his lists of membership. Inquiry into Com­
munist activities was assumed to be a legitimate govern­
mental interest. But it had not been demonstrated, the 
Court held, that these lists bore “a crucial relation” to that 
legitimate interest. The Court added:

“Of course, a legislative investigation—as any 
investigation—must proceed ‘step by step’ Baren- 
blatt V. United States, supra, 360 U. S. at 130, but 
step by step or in totality, an adequate foundation

A. A. C. P. V. Button, 371 U. S. 415, 438 (1963) 
^^Thomas v. Collins, 323 U. S. 516, 530 (1945). 
^Nherbert v. Verner, 374 U. S. 398, 408 (1963).



37

for inquiry must be laid before proceeding in such 
a manner as will substantially intrude upon and 
severely curtail or inhibit constitutionally protected 
activities or seriously interfere with similarly pro­
tected associational rights. No such foundation has 
been laid here. The respondent Committee has 
failed to demonstrate the compelling and subordi­
nating governmental interest essential to support 
direct inquiry into the membership records of the 
N. A. A. C. P.” 372 U. S. at 557.

In DeGregory, a state investigator asked questions 
about subversive activities going back several years before 
the date of the investigation. This Court held that a wit­
ness could not be made to answer. There was no showing, 
said the Court, of “overriding and compelling state inter­
est,” such as “would warrant intrusion into the realm of 
political and associational privacy protected by the First 
Amendment. . . . Law making at the investigatory stage 
may properly probe historic events for any light that may 
be thrown on present conditions and problems. But the 
First Amendment prevents use of the power to investigate 
enforced by the contempt power to probe at will and with­
out relation to existing need.” 383 U. S. at 829.

Bates v. Little Rock was an attempt to obtain a list of 
contributors to the N. A. A. C. P. as a purported aid in the 
collection of local license taxes. The attempt failed, this 
Court holding that while “the governmental purpose upon 
which the municipalities rely is a fundamental one,” 361 
U. S. at 524, “the municipalities have failed to demonstrate 
a controlling justification for the deterrence of free asso­
ciation which compulsory disclosure of the membership 
lists would cause.” 361 U. S. at 527.

In N. A. A. C. P. V. Alabama, the state sought to obtain 
N. A. A. C. P. membership lists in order to determine



38

whether that organization was conducting intrastate busi­
ness contrary to the provisions of the Alabama foreign 
corporation statutes. This Court noted, in language almost 
directly applicable to the instant cases, that the fact that 
Alabama had taken “no direct action, cf. DeJonge v. 
Oregon, 299 U. S. 353 (1937); Near v. Minnesota, 283 
U. S. 697, to restrict the right of petitioner’s members to 
associate freely, does not end inquiry into the effect of the 
production order.” In the domain of the “indispensable 
liberties” guaranteed by the First Amendment, the Court 
went on, an abridgement of rights, “even though unintended, 
may inevitably follow from varied form.s of governmental 
action.” 357 U. S. at 461. Alabama, the Court held, had 
“fallen short of showing a controlling justification for the 
deterrent effect on the free enjoyment of the right to asso­
ciate which disclosure of membership lists is likely to have.” 
357 U. S. at 466.

A showing by the government of probable cause to 
believe that a crime has been committed and that a re­
porter has information specifically relevant to it, and a 
showing that the government cannot obtain the informa­
tion by alternative means are the minimal equivalents in the 
instant cases of the “adequate foundation for inquiry” re­
quired by Gibson, 372 U. S. at 557, of the holding of 
DeGregory that “the power to investigate enforced by the 
contempt power” will not be allowed “to probe at will and 
without relation to existing need,” 383 U. S. at 829, and 
of the requirement of Bates and oi N . A. A. C. P. v. Ala­
bama that “a controlling justification” be shown, 361 U. S. 
at 527, 357 U. S. at 466. The two-fold probable-cause and 
the no alternative-means tests reduce the demonstration of a 
controlling justification to a procedural formula designed 
to safeguard First Amendment values. Moreover, as in 
some of the cases discussed above—Rumely, Sweezy (see 
particularly Frankfurter, J., concurring, 354 U. S. at 255) ;



39

see also, e.g., Lamont v. Postmaster General, 381 U. S. 301 
(1965)—^̂the First Amendment right that must be safe­
guarded is a right to know, a right of access to information, 
literature, knowledge; the right of particular publics in the 
cases mentioned, the right of the general public in the in­
stant cases. And as in all the cases discussed above, the 
countervailing government interest is, on analysis, revealed 
as slight; in the instant cases even in a measure self-defeat­
ing. For what does it avail to force information out of a 
reporter because that seems the easiest way to get it, when 
the price to be paid is the future unavailability of similar 
information, not only to the public at large, but to govern­
ment investigators themselves?

A parallel to the procedural safeguards we urge may 
be found in an area not related to the investigative func­
tion of government. This is the area of regulation of 
obscenity. Flere also vindication of legitimate interests 
conflicting with the First Amendment has been ringed 
about with special and rigorously enforced procedural 
requirements. In holding unconstitutional, in Bantam 
Books Inc. V. Sullivan, 372 U. S. 58 (1963), a loose ar­
rangement for notifying booksellers of what books a state 
commission deemed objectionable, the Court said:

“Thus, the Fourteenth Amendment requires that 
regulation by the States of obscenity conform to 
procedures that will ensure against the curtailment 
of constitutionally protected expression, which is 
often separated from obscenity only by a dim and 
uncertain line. It is characteristic of the freedoms 
of expression in general that they are vulnerable to 
gravely damaging yet barely visible encroachments. 
Our insistence that regulations of obscenities scru­
pulously embody the most rigorous procedural safe­
guards . . .  is therefore but a special instance of the 
larger principle that the freedoms of expression



40

must be ringed about with adequate bulwarks.” 372 
U. S. at 66.

Procedural bulwarks of similar sorts were erected in 
Freedman v. Maryland, 380 U. S. 51 (1965), A Quantity 
of Books V. Kansas, 378 U. S. 205 (1964), and Harms v. 
Search Warrant, 367 U. S. 717 (1961). See also, e.g.. 
United States v. Thirty-seven Photographs, 402 U. S. 410 
(1971); Blount v. Rizzi, 400 U. S. 410 (1971).

The showing of probable cause and of the lack of alter­
native means are elementary traffic regulations on any 
road on which so much as a possibility of collision with the 
First Amendment is present. They are the more unhesitat­
ingly to be imposed and enforced when no statute stands 
in the way, and the Court is not required to overcome any 
contrary legislative judgment. “So far as I am concerned,” 
said Mr. Justice Black, concurring in Barr v. Matteo, supra, 
360 U. S. at 576, 577, “if federal employees are to be sub­
jected to such restraints in reporting their views about how 
to run the government better, the restraint will have to be 
imposed expressly by Congress and not by the general libel 
laws of the States or of the District of Columbia. How far 
Congress itself could go . . .  is a question we need not reach 
in this case.” So also in the instant cases.

No statute was remotely in point in No. 70-94. A re­
lated statute was held inapplicable in one of the proceedings 
(Hayes) in No. 70-85, and that statute merely embodied 
a narrow (as construed) newsman’s privilege, without any 
indication of the legislative will concerning procedural safe­
guards in cases where the statutory privilege was unavail­
able. No more is involved in No. 70-57 than exercise of the 
federal judiciary’s supervisory function over grand juries, 
as it comes inevitably into play when the court’s contempt 
power is invoked. This is a good bit less than has some­
times been done by way of administering the judicial do-



41

main in the absence of a supervening statute, Cf. McNabb 
V. United States, 318 U. S. 332 (1943) ; Mallory v. United 
States, 354 U. S. 449 (1957). Nor is the task avoidable, 
much as legislation might be deemed desirable. Once the 
contempt power of the court is appealed to, it must be exer­
cised or not, and the modalities of its exercise have to be 
settled upon one way or the other. The court is not in 
a position of intervening in the concerns of other institu­
tions, whether legislature or police. Rather the intervention 
of the court is sought by the government, and a decision 
on whether the court should act, and on the procedures it 
should use in acting, is inescapable.

As for imposition of procedures adopted in the federal 
system upon the States, where the First Amendment is in 
question, it is too late in the day to differentiate between its 
impact in the federal as compared with state jurisdictions. 
The trend toward uniformity has prevailed, of course, even 
in the area of the administration of criminal justice. Com­
pare McNabb v. United States, supra, with Miranda v. 
Arizona, 384 U. S. 436 (1966). ¥/hatever may be thought 
of that development, there can no longer be any question 
that substantive or procedural rules aimed at safeguarding 
First Amendment values apply to the States, no matter how 
deep the intrusion into otherwise autonomous state interests 
—and the intrusion worked by New York Times Co. v. 
Sullivan, supra, and its progeny, for example, was deep. 
Most of the overbreadth and other “procedural bulwark” 
cases discussed above were State cases, and numerous other 
ones, constituting more distant analogies to the facts of the 
instant cases, but bearing on this particular point, could 
certainly be adduced. See, e.g.. Garner v. Louisiana, 368 
U. S. 157 (1961). Perhaps of all the cases discussed, the 
one in which the inevitable extension of a procedural judg­
ment resting on First Amendment premises from a Federal 
to a State context was most striking is Sweezy v. New



42

Hampshire, supra. Compare Watkins v. United States, 
supra, decided the same day.

D. Decisions, Statutes, Administrative Actions and 
Scholarly Articles Bearing Directly on the Asserted
Reporter’s Privilege

The holding of the District Court in No. 70-57, which 
in those aspects that were not appealed from was adopted 
by the Court of Appeals, embodied the minimal procedural 
safeguards proposed in this section of our brief. The Dis­
trict Court’s holding was stated in more general terms than 
those we have proposed, and it was suggestive also of a 
First Amendment requirement additional to procedural 
safeguards, which we will discuss in the immediately fol­
lowing section.

The District Court’s statement of its holding was as 
follows:

“When the exercise of the grand jury power of testi­
monial compulsion so necessary to the effective 
functioning of the court may impinge upon or 
repress First Amendment rights of freedom of 
speech, press and association, which centuries of 
experience have found to be indispensable to the 
survival of a free society, such power shall not he 
exercised in a manner likely to do so until there has 
been a clear showing of a compelling and overriding 
national interest that cannot he served by alternative 
means.” (Italics supplied) 311 F. Supp. at 360.

The requirement that the government shall have made un­
successful efforts to obtain the same or equivalent informa­
tion elsewhere than from the reporter is thus explicit. The 
“compelling and overriding national interest” of which the 
District Court speaks must be incapable of being served 
by alternate means. For the rest, on the facts of the case.



43

the District Court clearly found a lack of a compelling and 
overriding national interest at least in part because the 
government had not demonstrated probable cause to believe 
that Caldwell possessed information which was specifically 
relevant to a specific episode under investigation as a prob­
able violation of law.

A number of other courts have recently handed down 
holdings in accord with that of District Judge Zirpoli in 
No. 70-57, sometimes detailing more specifically than did 
Judge Zirpoli the procedural safeguards whose adoption 
we urge.^® The relevant scholarly literature of the last few 
years, thoug'h not of the years before decision of New York 
Times Co. y . SiMivan^ supra, is overwhelmingly in favor of 
a newsman’s privilege/® and while there have been rela­
tively recent state court decisions to the contrary, few are 
unqualified.

People V. Dohrn, Cook County, Circuit Court, Criminal 
Division, Indictment No. 69-3808, Decision on Motion to Quash 
Subpoenas, May 20, 1970 pp. 8-9; Illinois v. Totnashevsky, Cook 
7  Division, Indictment No. 69-3358-59, April
/, 1970; Alioto v. Cowles Communications, Inc., N. D. Calif. C. A. 
52150, December 4, 1969, Tr. 165-67; Air Transport Association v. 
Professional Air Traffic Controllers Organization, D. C. E. D. N. Y. 
Nos. 70-C-400-410, Tr. April 6, 1970 pp. 18-24, 36; Tr. April 7, 197o’ 
P P - ^ ’ 28-39, 149-151; People v. Rios, Calif. Superior Court No. 
/olz9, July 15, 1970. See also In Re Grand Jury, Petition of John 
Doe, 315 F. Supp. 681 (1970).

2 6See 4 g y . U n iv . L . R ev . 617 (1971); Nelson, The 
Newsmens Privilege Against Disclosure of Confidential Sources and 
Information, 24 V a n d . L . R ev . 667 (1971); Note, 71 Co l u m . L. 
R ev . 838 _(1971); Hall and Jones, Pappas and Caldwell, The News­
mens Privilege— Two Judicial Views, 56 M ass. L . O . 155 (1971) ■ 
Coniment, The Newsman’s Privilege; Protection of Confidential Asso­
ciations and Private Communications, 4 J ourna l  of L a w  R eform  

Reporters and Their Sources: The Constitutional 
Kight lo  a Confidential Relationship, 80 Y a le  L . J . 317 (1970); 
Ccmment, Constitutional Protection for the Newman’s Work Product 
6  H arv. C iv . R ig h t s -C iv . L ib . L . R ev . 119 (1970); Comment, The 
Newsman j  Privilege: Protection of Confidential Sources of Informa- 

Against Government Subpoenas, 15 S t . L o uis  U n iv . L . J. 181 
(1970); Comment, The Newman’s Privilege: Government Investiga-



44

Thus State v. Buchanan, 250 Ore. 244, 436 P. 2d 729
(1968) , held that a reporter could be required to disclose 
the identity of a confidential informant. See also In re 
Goodfaders Appeal, 45 Hawaii 317, 367 P. 2d 472 (1961). 
But In re Taylor, 412 Pa. 32, 193 A. 2d 181 (1963), while 
also denying that the First Amendment of its own force 
creates a reporter’s privilege, did extend equivalent pro­
tection to a reporter on the basis of a broad construction 
of a state statute. The statute, said the Supreme Court of 
Pennsylvania in a notable passage, which considerably 
weakens the force of its own earlier professed view of the 
effect of the First Amendment, “is a wise and salutary 
declaration of public policy whose spiritual father is the 
revered Constitutionally ordained freedom of the press. 
The act must therefore, we repeat, be liberally and broadly 
construed in order to carry out the clear objective and 
intent of the legislature which has placed the gathering and 
the protection of the source of news as of greater import­
ance to the public interest and of more value to the public 
welfare than the disclosure of the alleged crime or the 
alleged criminal.” (Italics in original) 193 A. 2d at 185-86.

Again, State v. Knops, 183 N. W. 2d 93 (Sup. Ct. 
Wise. 1971), upheld a reporter’s contempt conviction for 
refusing to answer. Judge Zirpoli’s decision in No. 70-57
tions, Criminal Prosecutions and Private Litigation, 58 Ca l if . L. 
R ev . 1198 (1970) ; D’Alemberte, Journalists Under the Axe: Protec­
tion of Confidential Sources of Information, 6 H arv. J. L eg is . 307
(1969) ; Guest and Stanzler, The Constitutional Argument for News­
men Concealing Their Sources, 64 N. W. U. L. R ev . 18 (1969) ; 
Recent Case, 82 H arv. L. R ev. 1384 (1969); Comment, 46 O r e . L. 
R ev . 99 (1966) ; Note, 35 N eb . L . R ev . 562 (1956). Cj. Recent Deci­
sion, 8 B u ffa lo  L. R ev . 294 (1959); Note, 32 T e m p l e  L. Q. 432 
(1959); Note, 36 V a . L . R ev . 61 (1950). But cj. Beaver, The 
Newsman’s Code, The Claim of Privilege and Everyman’s Right to 
Evidence, 47 O r e . L. R ev . 243 (1968); Recent Decision, 61 M ic h . 
L. R ev . 184 (1962) ; Carter, The Journalist, His Informant and Tes­
timonial Privilege, 35 N. Y. U. L. R ev . 1111 (1960) ; Semeta, Jour­
nalist’s Testimonial Privilege, 9 Clev .-M ar . L. R ev. 311 (1960) ; 
Comment, 11 S t a n . L. R ev . 541 (1959); Note, 45 Y ale  L. J. 357 
(1935).



45

having been brought to its attention, the Wisconsin court 
said: “The fact situation here is so remote from that in 
Caldwell that even if this court were to accept the premises 
of the Caldwell decision, it would still be inapplicable in 
this case. Unlike Caldwell, the appellant here does not face
an unstructured fishing expedition___Here the applellant’s
information could lead to the apprehension and conviction 
of the person or persons who committed a major criminal 
offense resulting in the death of an innocent person. The 
information sought may remove threats of repetition of 
the offenses.” 183 N. W. 2d at 98-99. The court con­
cluded that “the appellant has a constitutional right to the 
privilege not to disclose his sources of information re­
ceived in confidential relationship. However . . . [ujnder 
the facts and circumstances of this case, we think the pub­
lic’s right to know outweighs the appellant’s right of 
privilege.” 183 N. W. 2d at 99. Justice Heffernan, con­
curring in part and dissenting in part, emphasized the 
court’s formulation of a constitutional privilege as the 
assertion of “a significant and fundamental first amend­
ment right of the freedom of the press . . .  a landmark in 
legal history.” 183 N. W. 2d at 99. He dissented because 
in respect of certain (but not all) questions, he viewed the 
testimony sought by the state as “superfluous,” 183 N. W. 
2d at 100, since it was available elsewhere.

Even the opinion of the Supreme Judicial Court of 
Massachusetts in No. 70-94 states that “in exercising his 
supervisory discretion, the presiding judge (with respect 
to the examination of any witness and not merely as to 
news gatherers) may take into account all pertinent cir­
cumstances affecting the propriety, purposes, and scope of 
the grand jury inquiry and the pertinence of the probable 
testimony of the particular witness to the investigation in 
progress.” 266 N. E. 2d at 303-304. In footnotes 13 and 
14 to this passage, the court added that if it were shown to 
a presiding judge that the use of a newsman as a wit-



46

ness would be likely to be unnecessarily burdensome, and 
the testimony of other witnesses would suffice, the judge 
might consider this factor in his discretion. Massachusetts 
judges and grand juries, the court went on to say, are not 
bound by, though they may consider, the Guidelines re­
cently promulgated by the Attorney General, supra, but 
“a general investigation of mere political or group asso­
ciation of persons, without substantial relation to criminal 
events,” may “be viewed by a judge [as by the Guidelines] 
in a somewhat different manner from an investigation of 
particular criminal events concerning which a newsman 
may have knowledge.” And the court concluded and held 
merely that on “the limited facts reported to us, the ruling 
of the Superior Court Judge v/as correct.” We suggest 
that this constitutes quite a qualification upon the principal 
holding of the Supreme Judicial Court of Massachusetts 
that no privilege exists under the First Amendment.

Garland v. Torre, supra, the well-known opinion by 
Judge (now Mr. Justice) Stewart, is certainly not to be 
counted as denying the existence of a First Amendment 
privilege, or the need of procedural safeguards to protect 
a reporter. To begin with, as we have pointed out before, 
the court in Garland accepted the hypothesis that cumpulsory 
disclosure of a reporter’s confidential sources may entail 
an abridgement of the freedom of the press. Garland was 
in part an action for defamation, and the reporter, whose 
testimony was compelled, was a crucial witness on the 
'central issue in the case. “It is to be noted,” said the 
court, in a passage which certainly left the way open to, 
if it did not invite, the creation of procedural safeguards 
such as we urge, “that we are not dealing here with the 
use of the judicial process to force a v/holesale disclosure 
of a newspaper’s confidential sources of news, nor with a 
case where the identity of the news source is of doubtful 
relevance or materiality. Cf. N. A. A. C. P. v. Alabama, 357 
U. S. 449, 464-65 (1958). The question asked of the appel-



47

lant went to the heart of the plaintiff’s claim. We hold that 
the Constitution conferred no right to refuse an answer.” 
259 F. 2d at 549-550. The court then went on to take note 
of the argument made in behalf of the reporter that, in the 
exercise of his discretion, the trial judge should have issued 
a protective order, because there was grave danger of in­
jury to the reporter, because plaintiff might have been able 
to acquire the information elsewhere, and because, plain­
tiff’s claim of defamation being of problematical merit, 
the information sought was likely in any event to prove 
of no actual use. Far from deciding that these arguments 
were untenable, the court merely held that there had been 
no abuse of the district judge’s discretion in refusing to 
make a protective order in this case. On the facts before 
him, the court said, the district judge was entirely justified 
in acting as he did. It was possible that plaintiff could have 
learned the identity of the reporter’s informant elsewhere, 
but plaintiff had made reasonable efforts in that direction 
without success. And the claim of defamation was not 
frivolous. The court’s holding, then, hardly comes to the 
proposition that there is no reporter’s privilege. Rather 
it plainly assumes for purposes of the decision that there 
are circumstances in which a protective order should issue, 
although such circumstances were not present in the case 
before the court.

Seventeen states have statutes extending some protection 
to reporters against compelled testimony.^’' In thirteen, the

’̂’Ala. Code Recompiled Tit. 7, § 370 (1960); Alaska Stat. 
§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 (1969) ; La. Rev. Stat, §45:1451-54 (1970 
Cum. Supp.) ; Md. Ann. Code Art. 35, § 2 (1971) ; Mich. Stat. Ann. 
§28.945(1) (1954); Mont. Rev. Codes Ann. Tit. 93, ch. 601-2 
(1964); Nev. 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.) ; N. Y. Civ. Rights Law § 79-h (McKinney 1970) ; Ohio 
Rev. Code Ann. §2739.12 (1953); Pa. Stat. Ann. Tit. 28, § 330' 
(1958, 1970 Cumi. Supp.).



48

reporter has an absolute privilege against disclosing the 
identity of his news source, regardless of the importance 
of disclosure to the subject under inquiry.^® In four, this 
same privilege is qualified and disclosure may be compelled 
to prevent a “miscarriage of justice.” ®̂ In six of the states 
which make this privilege absolute, it comes into being 
only if information obtained from the source has been 
published.®® Three statutes—only three, but among them 
two of the most recent ones. New York’s and Michigan’s—■ 
protect confidential communications as well as the identity 
of the source.®  ̂ In Congress last year, bills were introduced 
which would protect both confidential communications and 
the identity of news sources, unless disclosure is necessary 
in the interests of national security.®  ̂ A survey of the law 
of a number of foreign countries in which the press is not 
government-controlled (even though not protected by con­
stitutional provisions like our First Amendment, either) 
indicates that while many such countries extend no explicit 
reporter’s privilege, a surprising number do, and additional 
ones achieve a similar result by more informal means.®®

Alabama, Arizona, California, Indiana, Kentucky, Maryland, 
Michigan, Montana, Nevada, New Jersey, New York, Ohio and 
Pennsylvania.

Alaska, Arkansas, Louisiana and New Mexico.
^“Alabama, Arizona, California, Maryland and New Jersey.
®^New York, Michigan and Pennsylvania (see In re Taylor, 

412 Pa. 32, 40, 193 A. 2d 181, 184-85).
®2See S. 3552, H. R. 16328, and H. R. 16704, 91st Cong., 2nd 

Sess. (1970).
®®Thus, Sweden, by what is called a constitutional law, enables 

reporters absolutely to protect the identity of confidential news 
sources, except as to a stated category of documents, where the 
identity of the source is of vital importance in a case [Freedom of the 
Press Act of April 15, 1949, see esp. Article 4 of Chapter 3]. In 
Finland, identity of news sources is privileged, unless there are “very 
important reasons” for demanding disclosure, as where a major crime 
or national security is involved. [Oikendenkaymiskaari, Chapter 17, 
Article XXIV]. The law of the Federal Republic of Germany ex-



49

The Attorney General’s Guidelines, supra, as we read 
them, acknowledge most of the considerations that led the 
District Court in Caldwell to reach its decision. These 
Guidelines, as we noted earlier, start with the premise that 
compulsory process “in some circumstances may have a 
limiting effect on the exercise of First Amendment rights.” 
They go on to say that “the approach in every case must 
be to weigh that limiting effect against the public interest 
. . .  in the fair administration of justice.” Since the De­
partment of Justice “does not consider the press Gn inves­
tigative arm of the government,’ ” the Guidelines require 
that all reasonable attempts be made to get the needed in­
formation from non-press sources before a subpoena is 
issued to a reporter; that there be sufficient reason, based 
on information obtained from non-press sources, to be-
tends a rather limited privilege. [See Paragraphs 383 and 384 Zivil- 
prozessordniing (code of German Civil Procedure). See also, Article 
98 of the Verwaltungsgerichtsordnung (the Administrative Courts 
Procedure) ]. However, the laws of the States constituting the Re­
public extend, for the most part, a very broad privilege. [See, e.g., 
Baden-Wurttenberg-Landespressegesetz—1952 (Bundesgesetzbl. I. S. 
177) § 66 Abs. 2 des Gesetzes fiber Ordnungswidrigkeiten] ; Strass- 
bare-Verletzung des Pressegesetzes, § 15 Abs. 1 [Beschl. des B Verss 
G vom. 4. 6. 1957, BGBL. I. S. 1253]; Zeugnisverweigerungsrecht— 
§§22, 23 eingeffigt durch Ges. vom. 22.2 1966 [GVBL. S. 31]; 
Rundfunk §§ 4 bis 6, 11, 21 Nr. 1, § 22 Abs. 1 Nr. 3 und Abs. 2 bis 
5, §§ 23 und 24 fur Horfunk und Fernsehen entsprechend]. Austria 
also extends a very broad privilege [Paragraph 45 of the Federal 
Law of Austria of 1922 ; See also, Article 321, Code 5 of the Civil Law 
Statute of Austria], as does the law of the Republic of the Philippines 
[See, the Republic of the Philippines Act S3 (1946)]. In England, 
the identity of a news source is privileged in a fairly narrow category 
of libel actions [See e.g., Hennessy v. Wright, [1888], 24 Q. B. D. 
445 (C. A .)], but not otherwise. There is no privilege in Australia 
[See e.g., McGuiness v. Attorney General, 63 Commw. L. R. 37, 
Austl. 1940], or in Canada, but in the latter country, at least, there is 
no case on record of the imposition of penalties on a reporter for re­
fusing to disclose a professional confidence [See, U. Schwartz Press 
Law for Our Times (International Press Institute, 1966) at p. 49]. 
Finally, French law extends no reporter’s privilege, but it would 
appear that the equivalent is most often informally and tacitly ex­
tended [See e.g., Decret du 7 Decembre 1960, Article 5.]



so
lieve that a crime has been committed, and that the press 
not be used “as a spring board for investigations;” that 
there be sufficient reason to believe “that the information 
sought is essential to a successful investigation—^̂ particu­
larly with reference to directly establishing guilt or inno­
cence . . . [and that a subpoena] should not be used to 
obtain peripheral, non-essential or speculative informa­
tion;” and that the government should have unsuccessfully 
attempted to obtain the needed information from non-press 
sources. Additionally, and presumably even where these 
requirements are satisfied, the Guidelines provide that 
“ [gjreat caution should be observed in requesting sub­
poena authorization by the Attorney General for unpub­
lished information, or where an orthodox First Amend­
ment defense is raised or where a serious claim of confi­
dentiality is alleged^ (Italics supplied) 39 U. S. L. W. 
2111 (1970).®"

E. Application of the Asserted Privilege to the Facts 
of No. 70-57 and Companion Cases

Application of the procedural safeguards we urge, 
which were accepted, in effect, by the District Court and 
the Court of Appeals in No. 70-57, or indeed application of 
the Attorney General’s Guidelines, or even simply of the

At least one court, in which the issue had been mooted by 
agreement among the parties, has declared that it “would certainly 
expect, should the occasion demand, to attach great weight to those 
[the Attorney General’s] guidelines either in terms of the exercise 
of its supervisory authority as a federal district court or in terms of 
whether they establish minimal constitutional standards.” Levin v. 
Marshall, 317 F. Supp. 169, 173 (D. Md. 1970).

The court in Levin v. Marshall, incidentally, by way of dictum, 
also declared itself in accord with the district court’s holding in Cald­
well, stating that it deemed it “incumbent upon the government 
prosecutor to shoulder the burden of showing the need for the is­
suance of and compliance with any such subpoenas.” 317 F. Supp. at



51

spirit of the opinion in Garland v. Torre, supra, would 
result in absolving the reporters from the duty to testify in 
No. 70-57, as well as in Nos. 70-85 and 70-94. In neither 
No. 70-57, Caldwell, nor No. 70-94, Pappas, was there 
any demonstration of reason to believe that information 
sought from the press was essential to establish guilt or 
innocence. In Pappas, there was not the slightest demon­
stration of reason to believe that a crime had been com­
mitted of which the reporter had any knowledge. In 
Caldwell, there was not the slightest demonstration that a 
crime had been committed of which the reporter had in­
formation not previously published. And in neither case 
was there any showing of an effort to obtain the needed 
information, if any, from alternate sources. To all appear­
ances, the press was being used as a spring board for in­
vestigation, or at least for a phase of an investigation. 
That was clearly the case as well in No. 70-85, Branshurg, 
where the offenses to which the investigation was addressed 
were uncovered by the press, and, one might add, would 
simply not have become known had the reporter’s sources 
been aware that the reporter would have to reveal their 
identity on pain of contempt—-which is to say, on the facts 
of that case, had the sources been aware that the reporter 
was to all intents and purposes an investigative arm of the 
government. And no effort at all was made to obtain the 
needed information from alternate sources. The reporter’s 
stories were full of clues that an intelligent investigation 
might have followed up. Yet no showing whatever was 
made in Bransburg of any independent investigative efforts 
by the state.

F. Questions Left Open

Adoption of the safeguards we urge would still leave 
open certain questions, some of which, including the ques­
tion of the duty to appear before a grand jury at all, even



52

under a protective order, we discuss in subsequent sections 
of this brief. Several other questions, none of which arises 
in the cases now before this Court, may be touched on here.

One is the question of when a confidential relationship 
can be said to exist. This is a question of fact. Judge 
Zirpoli had little difficulty disposing of it in No. 70-57, 
even though the confidentiality of the reporter’s relations 
with his sources was not made explicit by them. No diffi­
culty arose on this score in No. 70-85, or in No. 70-94, 
and there is no reason to believe that this question of fact 
is in any sense likely to prove unmanageable.

Another, perhaps somewhat more troublesome question 
that is left open is : Who qualifies as a reporter ? This 
question did not arise in any of the cases now before the 
Court, since the regular, professional employment of the 
reporters as news-gatherers for media of general circula­
tion was clear.®® Nor was there any doubt that the reporters 
received the information in their capacities as newsmen, 
rather than in some other capacity, perhaps that of a friend. 
The future may bring such questions. Thus, if a reporter 
works for a publication of less than general circulation and 
has other functions in the publishing organization than 
being a reporter or editor, he may receive information in 
the course of discharging those other functions, and such 
information ought perhaps not be privileged. These would 
not seem to be questions of unusual difficulty, nor would it 
be normal for the Court to be troubled in such cases as the 
instant ones by foreseeable, but manageable, ramifications of 
a proposed doctrine. Surely, to pick just two near examples, 
the holding of Williams v. Rhodes, 393 U. S. 23 (1968),

e.g., Los Angeles Free Press, Inc. v. Los Angeles, 9 Cal. 
App. 3d 448 (1970) (we cite this case as exemplifying a problem 
that might arise in future, not as representing, in our view, its correct 
resoiution) ; see Comment, supra n. 26, 6 H arv. C iv . R ig h t s— Civ. 
L ib . L . R ev . at 129 et seq.



53

has easily foreseeable ramifications which were not settled 
in that decision, but did not deter its being made. C£. Jen- 
ness V. Fortson, 403 U. S. 431 (1971). And the ramifica­
tions of New York Times Co. v. SfiUivan, supra, were fore­
seeable, materialized, and were dealt with in due course.

The consideration just mentioned provides the essential 
answer also to a third question, namely, whether the same 
standards should apply when a reporter is subpoenaed to 
appear at a trial rather than before a grand jury. Obviously 
there may be differences. Yet it is to be noted that the cau­
tious approach of the court in Garland v. Torre, supra, was 
taken in a trial context, and that more recently courts have 
protected reporters from testifying even at trials, see note, 
25, supra. In certain trials, perhaps, it may be possible to 
show a particular need for a reporter’s testimony.®® And it 
may be that in other trials it ought not to be substantially 
easier to obtain a reporter’s testimony on matters covered 
by his confidences than when the reporter is called to ap­
pear before a grand jury. Nothing more is needed at this 
stage than to take note of the possible variables.

It does need finally to be asked, however, about the 
procedural safeguards we urge whether they may not turn 
into disguises for a substantive rule always foreclosing the 
government from obtaining information. The Attorney Gen­
eral’s Guidelines, supra, would seem to be evidence that the 
federal government’s chief law enforcement officer believes 
that the burden of procedural safeguards can be met when 
the need truly arises. Judge Zirpoli himself, in a case con­
cerning two other witnesses wanted by the same grand 
jury which had called Caldwell, has held that the govern­
ment succeeded in carrying the burden imposed by these 
procedural safeguards. In Re Grand Jury Witnesses, 322

®®See Adams v. Associated Press, 46 F. R. D. 439 (D. C. S. D. 
Tex. 1969) ; Note, supra, n. 26, 80 Y ale  L. J. at 339; Comment, supra 
n. 26, 58 Ca l if . L. R ev . at 1245 et seq.



54

F. Supp. 573 (N.D. Calif. 1970). Except as reason to 
believe that specific crimes had been committed was appar­
ently satisfactorily made out by the government, it is not 
clear from this opinion of Judge Zirpoli just how the rest 
of the government’s burden was met, and we do not by any 
means offer the opinion as exemplifying our own view of 
what is needed to meet the burden. One factor that appar­
ently weighed with the court was that the two reporters in 
question, found by the court to be journalists in the employ 
of the Black Panther newspaper, were also associated in 
other capacities with persons under investigation by the 
grand jury, and as such had been immunized pursuant to 
18 U.S.C. § 2514. In any event, the case is evidence that 
in the mind of the judge who defined the burden in the 
Caldwell case, and found it not to have been met there, it 
can in appropriate circumstances be met.

The argument may be made that in order to satisfy pro­
cedural safeguards, the government will have to violate the 
general rule of grand jury secrecy. But in some measure, 
that has to happen every time a witness refuses to answer, 
and must be brought before a judge, and it need not happen 
in any greater degree in this instance. Moreover, grand 
jury minutes are often made available to other investiga­
tions, and can be used to refresh the memory of a witness, 
or to impeach him. Grand Jury secrecy is itself no absolute.®'̂

It might also be argued that in some investigations 
there is particular danger to the successful conclusion of 
the investigation, and conceivably even to prospective wit­
nesses themselves, if the government must in open court 
make public the identity of a witness and the reason why 
it wishes to question him. But a motion to quash a sub­
poena—any subpoena—may be made publicly. Hence the 
identity of the witness may be publicly disclosed, whatever

®̂ See Note, The Grand Jury as an Investigatory Body, 74 H ar­
vard L. R ev . 590, 600-601 (1961).



55

the government might wish. To the extent that a danger 
may nevertheless be perceived, in camera proceedings are 
certainly sufficient to guard against it. Such proceedings 
are not unheard of.®® We merely note the possibility, in 
extremis, of resorting to them, without in any way urging 
that they become normal, or indeed suggesting that they 
need ever be resorted to; and certainly without condoning, 
let alone suggesting, ex parte in camera proceedings.

IV.

BEFORE A COMPELLING AND OVERRIDING NATIONAL 
OR STATE INTEREST CALLING FOR DISCLOSURE OF A 
REPORTER’S CONFIDENCES CAN EVER BE SAID TO 
EXIST, THE GOVERNMENT MUST SHOW, AT A MINIMUM, 
THAT THE VIOLATION OF LAW WHICH HAS PROBABLY 
OCCURRED AND OF WHICH THE REPORTER HAS SPECI- 
FICALLY RELEVANT KNOWLEDGE IS A MAJOR CRIME,

We believe we have demonstrated in previous sections 
of this brief that the public’s right to know—a vital First 
Amendment concern—is crucially in play in these cases, and 
that certain procedural safeguards constitute a minimal

®®See, e.g., Giordano v. United States, 394 U.S. 310, 313, 314 
(1969) (Stewart, J. concurring); Taglianetti v. United States, 394 
U.S. 316, 317 (1969) (cf. Alderman v. United States, 394 U.S. 165, 
182 [1969]) ; United States v. Clay, 430 F. 2d 165 (5th Cir. 1970), 
rev’d on other grounds, 403 U.S. 698 (1971); Palermo v. United 
States, 360 U.S. 343 (1959); United States v. Schipani, 362 F. 2d 
825 (2d Cir. 1966), cert, denied, 385 U.S. 934 (1966); United 
States V. Persico, 349 F. 2d 6 (2d Cir. 1965) ; Machin v. Zuchert, 
316 F. 2d 336 (D.C. Cir. 1963), cert, denied, 375 U.S. 896 (1963); 
Halpern v. United States, 258 F. 2d 36 (2d Cir. 1958) ; Wellford v. 
Hardin, 315 F. Supp. 175 (D. Md. 1970); United States v. Jackson, 
384 F. 2d 825 (3d Cir. 1967); see also Baker v. United States, 430 
F. 2d 499 {D.C. Cir. 1970), cert, denied, 400 U.S. 965 (1970) ; and 
see Committee on Rules of Practice and Procedure of the Judicial 
Conference of the United States, Revised Draft of Proposed. Rules 
of Evidence for the United States Courts and Magistrates, Rule 
510(c) (3) (1971).



56

First Amendment protection that must be extended. The 
formula adopted by the District Court in No. 70-57 (and 
approved by the Court of Appeals) for extending these 
procedural safeguards was that before a reporter may be 
forced to disclose the identity of confidential sources or to 
divulge confidential information, the government must show 
a “compelling and overriding national [or state] interest.” 
311 F. Supp. at 360. Aside from its procedural content, 
dealt with in the preceding section of our brief, this 
formula, we contend, also means that in some circumstances, 
even though it may be shown that a reporter has knowl­
edge of a crime, a compelling and overriding interest in his 
testimony will be held to be lacking, and the reporter will 
not be required to testify. In other words, in some circum­
stances procedural safeguards alone, even if satisfied, will 
not be enough.

It is not necesary in these cases to define with preci­
sion the outer limits of a “compelling-and-overriding-in- 
terest” test. In none of these cases did the government 
meet the burden imposed on it by the procedural safeguards. 
There was no demonstration in No. 70-57, Caldwell, and 
No. 70-94, Pappas, that a crime had been committed of 
which the reporters could provide indispensable evidence. 
In No. 70-85, Bransburg, while there was evidence of cri­
minal transgression, the reporter was clearly being used as 
a spring board for investigation, and there was no showing 
of any effort to follow up clues and leads provided by the 
reporter’s own published stories, and thus obtain evidence 
by alternate means. This much is dispositive of the present 
cases. Yet we believe that, as Judge Zirpoli’s holding may 
be read to imply, and as President Nixon stated in the re­
marks quoted above at p. 11, a sound and significant feature 
of the “compelling-and-overriding-interest” test, additional 
to its procedural requirements, is the proposition that only 
where a major crime is involved should there even be any



57

question of compelling a reporter to divulge his confidences. 
And we believe that this feature of the “compelling-and- 
overriding-interest” test should receive recognition, and 
hence needs to be discussed.

In one sense, no doubt, all crimes are important, and 
whenever a criminal statute has been violated, a significant 
government interest can be said to be in play. But it is not 
equally true that the interest in punishing a specific criminal 
is always society’s paramount interest when a criminal law 
has been violated. Sometimes, for example, a trade-ofif is 
considered desirable between getting information about the 
crime and the ability to punish the criminal. This trade-off 
is institutionalized in immunity statutes.®® We are impelled 
to the immunity trade-off by the Fifth Amendment. We 
may be equally impelled by the First Amendment to make a 
not dissimilar trade-off. If the reporter must testify, he be­
comes—and it will be known that reporters have become— 
an investigative arm of the government, and he will not again 
be able to obtain evidence of crime in confidence. There 
will be a net loss of information from the point of view of 
law enforcement, as well as from the First Amendment 
point of view. On the other hand, if the reporter is permit­
ted not to testify, even at the cost of a failed prosecution, he 
will be able to continue to produce evidence which even at 
the time and in the same circumstances may make possible 
the prosecution of others, and which may certainly lead to 
successful future prosecutions in other circumstances.

Obviously, as a matter of social policy, a trade-off be­
tween punishing and being able to obtain information will 
seem more attractive in some cases than in others. When 
it passes immunity statutes, a legislature makes the judg-

®®See 18 U. S. C. § 2514 (1968) ; Licata v. United States, 429 
F. 2d 1177 (9th Cir. 1970) ; In Re Grand Jury Investigation, 317 F. 
Supp. 792 (E. D. Pa. 1970); and see Piccirillo v. New York, 400 
U. S. 548 (1971).



58

ment of social policy. So it does also, with a different but 
for our purposes even more closely analogous set of con­
siderations in mind, when, modifying the common law 
rule,^“ it creates the offense of misprision of felony, but 
limits it, as New Jersey has done, to failure to disclose 
knowledge of the commission only of “arson, manslaughter, 
murder, or of any high misdemeanor.” Article 2A:97-2 
New Jersey Statutes: “Concealment of Crimes.” It may be 
that in a restricted, circumscribed and rather different 
fashion, courts must make such a judgment in this First 
Amendment area, as we shall show they make it, or make 
equivalent judgments, in other First Amendment contexts.

The judgment of social policy is possible at all only be­
cause there are crimes, and there are crimes; the criminal 
law is not a seamless web, as, for example, the President 
recognized in his remarks, referred to earlier, on the prob­
lem of protecting a reporter’s confidences. There has been, 
in recent decades, an enormous expansion of the criminal 
law. Writing in 1930, Roscoe Pound observed that “of 
one hundred thousand persons arrested in Chicago in 1912, 
more than one half were held for violation of legal precepts 
which did not exist twenty-five years before.”^  In an essay 
first published in 1958, Dean Francis Allen wrote; “The 
killing of domesticated pigeons, the fencing of saltpeter 
caves against wandering cattle, the regulation of auto­
mobile traffic, the issue of daylight saving time versus 
standard time, to give only a few examples, have all, at one 
place or another, been made problems of the criminal 
law.”“̂  For a number of reasons, and for almost any pur­
pose, it is impossible to deal with the criminal law in bulk,

^®See 2 J. Steph en , H istory of th e  Criminal L aw of 
E ngland 238 (1883); cf. Bratton v. United States, 73 F  2d 795 
(10th Cir. 1934).

P ound, Criminal J ustice in  A merica 23 (1930).
A llen, T he  Borderland of Criminal Justice 1 3-4

(1964).



59

without distinguishing, and analyzing separately, cat­
egories such as drunkeness, narcotics and drug abuse, 
gambling, disorderly conduct and vagrancy, abortion, sex­
ual behavior of all sorts, and what one author calls “public 
welfare offenses.” ®̂

Crimes of this sort are variously characterized as “vic­
timless,” as “regulatory or sumptuary,” or as punishing 
behavior that is relatively remote from the ultimate harm 
that society wishes to prevent/^ It is generally true of them 
that the law which defines them is enforced only sporadic­
ally, that their administration is, with unhappy frequency, 
affected by corruption, and that effective enforcement of 
any sort is very often nearly impossible because, as Pro­
fessor Packer has put it, the demand for the activity that 
the law proscribes is inelastic/® One need not for purposes 
of this argument be persuaded that no worthwhile purpose 
is served by making activities of this sort criminal, and 
that the law ought to purge itself of these crimes and rely 
for regulation of the conduct in question on other means. 
The point is merely that these categories of crime are in a 
class by themselves, and clearly distinguishable from 
crimes of violence to person or property, which some writ­
ers have called “natural crime.

Laws defining victimless, sumptuary crimes and the 
like are efforts to regulate, however sporadically, behavior 
that is necessarily recurrent on a fairly widespread scale. 
It follows that publicity about such behavior is greatly 
more significant than publicity about crimes of violence to 
the person or to property. The trade-off between knowing 
and punishing must be seen in a different light. Publicity

P acker, T he L imits of the Criminal Sanction 13 
(1968) ; and see N. M orris and G. H aw kins, T he  H onest P oli­

tician’s Guide to Crime Control 3 (1969).
^^Packer, su p ra  at 151-52, 270, 273.
^ P acker , su p ra  a t pp. 279, 286 et seq.; A l l e n , su p ra  a t 9-10, 130.
^"See A l l e n , su p ra , a t 66 e t se q .



60

is important both in order to put the enforcement machinery, 
which so often slows or breaks down, into motion again 
and to keep it honest, and in order to fill a need for the 
constant reexamination of the utility of such laws in light 
of their actual effect. The balance is otherwise with crimes 
of violence. Each such crime is in a sense unique, each may 
be seen as a uniquely threatening breach of the moral order, 
which in each instance must be repaired. Of course, many 
a crime of violence goes unpunished, but the society is not 
resigned to sporadic enforcement, and it certainly does not 
accept it almost a priori, as it does in the case of victimless, 
sumptuary crimes and the like.

Crimes such as corruption or other malfeasance in office 
may also be placed in a separate category from crimes of 
violence to person or property, chiefly because as to the 
former, the political sanction, deriving from public knowl­
edge that crimes of this sort are being committed, is at least 
as important as the criminal sanction. Thus, here also the 
balance of need between publicity and punishment is dif­
ferent than in the case of crimes of violence. The special 
role of the press in wielding the sanction of publicity against 
malfeasance in office has often been remarked. Generally, 
of course, as this Court said in Mills v. Alabama, 384 U. S. 
214, 219 (1966), “the press serves and was designed to 
serve as a powerful antidote to any abuses of power by 
government officials and as a constitutiona,lly chosen means 
for keeping officials elected by the people responsible to ail 
the people whom they vrere elected to serve.” More specifi­
cally, the Court wrote in Estes v. Texas, supra, 381 U. S. 
at 539;

The free press has been a mighty catalyst in 
awakening public interest in governmental affairs, 
exposing corruption among public officers and em­
ployees and generally informing the citizenry of 
public events and occurrences . . . ”



61

There would be nothing unusual in this Court under­
taking, where necessary, to assess, and assign different 
weights to, the variety of interests embodied in the 
criminal law, when they come into conflict with First 
Amendment values. The very formulation of Judge Learned 
Hand’s ultimate test, additional to other tests, see Branden­
burg V. Ohio, 395 U.S. 444 (1969), which the prevailing 
opinion of Chief Justice Vinson adopted in Dennis v. 
United States, 341 U.S. 494 (1951), imposes such a task 
upon the Court. Under this test, the Court must ask 
“whether the gravity of the ‘evil’ discounted by its im­
probability, justifies such invasion of free speech as is 
necessary to avoid the danger.” 341 U.S. at 510. The 
gravity of the evil is for courts and ultimately for this 
Court to assess, and the evil that a statute dealing with a 
sumptuary offense seeks to avert is not as grave (nor as 
immediate, as present ’) as the evil of a natural crime. 
This Court will cease to make such judgments “only when 
it renounces its historic responsibility.” Karst, Legislative 
Facts in Constitutional Litigation, supra n. 7, 1960 S u p . 
Ct . R ev. a t 81.

Judge Hand’s Dennis formula recalls the test laid down 
in the concurring opinion (Brandeis, J., joined by Holmes, 
J.) in Whitney v. California, 274 U. S. 357, 372, 377-78 
(1927):

“Moreover, even imminent danger cannot justify 
resort to prohibition of these functions essential to 
effective democracy, unless the evil apprehended is 
relatively serious. Prohibition of free speech and 
assembly is a measure so stringent that it would be 
inappropriate as the means for averting a relatively 
trivial harm to society. . . . Thus, a State might, in 
the exercise of its police power, make any trespass 
upon the land of another a crime, regardless of the 
results or of the intent or purpose of the trespasser.



62

It might, also, punish an attempt, a conspiracy, or 
an incitement to commit the trespass. But it is 
hardly conceivable that this Court would hold con­
stitutional a statute which punished as a felony the 
mere voluntary assembly with a society formed to 
teach that pedestrians had the moral right to cross 
unenclosed, unposted, waste lands and to advocate 
their doing so, even if there was imminent danger 
that advocacy would lead to a trespass. The fact 
that speech is likely to result in some violence or 
in destruction of property is not enough to justify 
its supression. There must be the probability of 
serious injury to the State.”

In Dennis itself, the Court took note of cases where “the 
interest which the state was attempting to protect was 
itself too insubstantial to warrant restriction of speech,” 
and then made the relevant judgment; “'Overthrow of the 
government by force and violence is certainly a substantial 
enough interest . . .” 341 U. S. at 509.

The phrase, “compelling interest,” which in these cases 
implies the necessity for weighing the nature and serious­
ness of various crimes, derives, among other cases, from 
Bates V. Little Rock, supra, 361 U. S. at 524, and the con­
cept which it and its variant, “overriding interest,” embody 
stems in turn from such cases as Schneider v. State, 
supra. “Mere legislative preferences or beliefs respect­
ing matters of public convenience,” the Court said in that 
case, “may well support regulation directed at other per­
sonal activities, but be insufficient to justify such as di­
minishes the exercise of rights so vital to the maintenance 
of democratic institutions.” 308 U. S. at 161. In numerous 
instances, many of them referred to earlier in this brief, 
an otherwise admittedly valid governmental interest, 
whether or not embodied in a criminal statute, was weighed



63

in the scales of importance and found wanting as a justi­
fication for the imposition of a restraint on the exercise of 
First Amendment rights. See, e.g., Martin v. Struthers, 
319 U. S. 141 (1943) ; N. A. A. C. P. v. Alabama, supra; 
Shelton v. Tucker, supra; N. A. A. C. P. v. Button, 371
U. S. 415 (1963). As the Court said in Schneider v. State, 
308 U. S. at 161, “the delicate and difficult task falls upon 
the courts to weigh the circumstances and to appraise the 
substantiality of the reasons advanced in support of the 
regulation of the free enjoyment of the rights.”

Circumstances and substantiality of reasons will vary 
among categories of criminal statutes, with what must 
necessarily be varying effects on the exercise of a reporter’s 
right under the First Amendment to withhold information 
obtained in confidence. That right will turn out to be a 
spectrum of rights, ranging from an aboslute or near­
absolute where the crime under investigation is sumptuary 
or victimless or the like, or involves malfeasance in office, 
to possibly a diminished substantive right—with, however, 
the same procedural safeguards—where major crimes of 
violence to the person or to property are involved. Cf. State
V. Knops, supra.

In Martin v. Struthers, supra, in Schneider v. State, 
supra, and in the cases discussed above at pp. 34-37, the 
“compelling-and-overriding-interest” test, or a verbal vari­
ant of it, was applied to curb otherwise legitimate govern­
ment actions because the ends the government sought to 
attain were found insufficiently substantial as measured 
against the interest in uninhibited exercise of First Amend­
ment freedoms. In none of those cases, we submit, were 
the First Amendment freedoms the Court protected more 
vital, or the threats to them more pervasive and imminent, 
than in the cases now before the Court.

Forcing reporters to divulge confidences would dam the 
flow to the press, and through it to the people, of the most



64

valuable sort of information; not the press release, not the 
hand-out, but the first-hand story based on the candid con­
versation of a primary news-source. Although the direct 
censorship of newspapers or broadcasts would constitute a 
more blatant—because historically more familiar and, of 
course, differently motivated—violation of the First Amend­
ment, forcing disclosure of reporters’ confidences is not very 
different in effect. It is a form of indirect, and perhaps 
random, but highly effective censorship; a prior restraint, 
not in the sense in which those words are used as a phrase 
of art, to be sure, but in a literal and constitutionally also 
relevant sense. For the forced disclosure of reporters’ con­
fidences will abort the gathering and analysis of news, and 
thus, of course, restrain its dissemination. In the circum­
stances, only an imperative need to punish or prevent com­
mission of a major crime, if indeed any countervailing 
consideration at all, can possibly justify inflicting such in­
jury on the vital interests protected by the First Amend­
ment. It should be added that obviously the occasions when 
a reporter will be enabled or will wish to witness a so-called 
natural crime in confidence, and the occasions when he will 
find it conformable to his own ethical and moral standards 
to withhold information concerning such a crime are bound 
to be infinitesimally few.

V.

WHERE A REPORTER IS PROPERLY PROTECTED BY 
COURT ORDER FROM DISCLOSING UNPUBLISHED CON­
FIDENTIAL INFORMATION, AND THERE IS NO SHOWING 
THAT HIS APPEARANCE BEFORE A GRAND JURY WOULD 
NEVERTHELESS SERVE A COMPELLING PURPOSE, HE 
NEED NOT APPEAR.

In the opinion of the Court of Appeals in No. 70-57, 
Judge Merrill pointed out that the mere appearance of a 
reporter, even under a protective order, behind the closed 
doors and in the secrecy of the grand jury room carried the



65

grave clanger of destroying his confidential relationship with 
a news source, and thus of stopping the flow of news. There 
are news sources, Judge Merrill went on, who “might very 
understandably fear that, under the pressure of examination 
before a Grand Jury, the witness may fail to protect their 
confidences with quite the same sure judgment he invokes 
in the normal course of his professional work.” 434 F. 2d 
at 1088.

This is not an extortionate threat or an irrational im­
pulse. “It is,” said Judge Merrill, “human reaction as 
reasonable to expect as that a client will leave his lawyer 
when his confidence is shaken.” Ibid. And Judge Merrill 
concluded “that the privilege not to answer certain questions 
does not, by itself, adequately protect the First Amendment 
freedoms at stake in this area; that without implementation 
in the manner sought by appellant the privilege would fail 
in its very purpose.” 434 F. 2d at 1088-89. Hence the 
Court of Appeals held that “where it had been shown that 
the public’s First Amendment right to be informed would 
be jeopardized by requiring a journalist to submit to secret 
Grand Jury interrogation, the Government must respond 
by demonstrating a compelling need for the witness’s pres­
ence before judicial process properly can issue to require 
attendance.” Ibid. We believe that Judge Merrill took a 
true view of the relevant facts, and drew the necessary 
consequences in constitutional terms, which are dispositive 
as well of one of the proceedings (Meigs) in No. 70-85.

There is a second, though related, ground on which 
affirmance of the judgment of the Court of Appeals in No. 
70-57 can be rested. On the uncontested facts of the case, 
it was clear that Caldwell’s appearance could serve no 
useful purpose, that it would be “a barren performance— 
one of no benefit to the Grand Jury,” since there was 
“nothing to which he could testify (beyond that which he 
has already made public and for which, therefore, his



66

appearance is unnecessary) that is not protected by the 
District Court’s order.” 434 F. 2d at 1089. So Caldwell 
had asserted by affidavit, and the government did not dispute 
the assertion.

Of course, the First Amendment is the inescapable 
background, it is an indelible feature of the holding 
of the Court of Appeals. Yet quite aside from the First 
Amendment, we submit that there is sufficient support for 
the holding in the discretion of a court under Rule 17(c) 
of the Federal Rules of Criminal Procedure to “quash or 
modify the subpoena if compliance would be unreasonable 
or oppressive.”

The District Court in Caldwell gave no indication that 
it felt called upon to exercise its discretion, and apparently 
ignored the existence of discretionary authority. So also 
did the trial court in one of the proceedings (Meigs) in No. 
70-85 fail to exercise any supervisory discretion of the 
sort alluded to in the opinion of the Supreme Judicial Court 
of Massachusetts, for example, see supra pp. 43-44. (At 
the very least, therefore, the judgment in this proceeding 
should be vacated, and the case remanded.) The Court of 
Appeals for the Ninth Circuit, recognizing the need for 
the exercise of a discretionary judguient, in effect reversed 
the District Court for failing to exercise it, and terminated 
the proceedings by itself undertaking its exercise on the
facts of the Caldwell case. 47 By no stretch of the imagina-

‘^'District Judge Jameson, sitting by designation in the Court of 
Appeals for the Ninth Circuit, in his concurring opinion in the Cald­
well case, rested his judgment solely on an exercise of discretion. In 
his opinion, he wrote, “the order of the district court could properly 
be affirmed,” thus requiring the witness “to seek a protective order 
after appearing before the grand jury.” But he concluded that “the 
same result” would equally properly “be achieved by requiring the 
Government to demonstrate the compelling need for the witness’s 
presence prior to the issuance of a subpoena and in this manner avoid 
any unnecessary impingement on First Amendment rights.” 434 F.2d 
at 1092.



67

tion could it be said that discretion was abused by the Court 
of Appeals in the Caldwell case. Rather, even putting First 
Amendment considerations to the side, if that were possible, 
and certainly in light of the First Amendment, the exercise 
of the discretion was thoroughly justified.

Not infrequently, as the Court of Appeals pointed out, 
there is the danger that basic rights may be infringed by 
a proposed grand jury interrogation, and it then becomes 
necessary to “inquire into the need in the particular case 
for the specific incursion [upon basic rights]. Since com­
pulsion to attend and testify entails the exercise of judicial 
process, it is appropriate that the inquiry be judicially 
entertained.” 434 F.2d at 1089. Cf. F. T. C. v. American 
Tobacco Co., 264 U. S. 298 (1924). It is, indeed, inevitable, 
and it is inevitable as well that this function should call for 
the exercise of the discretion of lower-court judges. Such 
discretion concerning the testimonial compulsion is in fact 
exercised by federal courts in various circumstances and 
contexts.^® Discretion is called for also, as this Court held 
in Roviaro v. United States, 353 U.S. 53, 62 (1956), in 
applying the government’s informer privilege to the par­
ticular facts of a case. Cf. Westinghouse Corp. v. City of 
Burlington, 351 F. 2d 762, 769, 770-71 (D. C. Cir. 1965). 
And judgments of necessity and available alternatives are 
made also when the government claims a privilege grounded 
in its security interests. See United States v. Reynolds 345 
U. S .1,11 (1953).

^®See Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 
318 (D.C. D.C. 1966), affirmed sub. nom. V.E.B. Carl Zeiss, Jena 
V. Clark, 384 F.2d 979 (D.C. Cir. 1967); Application of Certain 
Chinese Family B. & D. Ass’ns., 19 F.R.D. 97 (N.D. Calif. 1965) ; 
United States v. Schine, 126 F.Supp. 464 (W.D. N.Y. 1954); Mad­
dox V. Wright, 103 F. Supp. 400 (D.C. D.C. 1952); Overly v. Hall- 
Neil Furnace Co., 12 F.R.D. 112 (N.D. Ohio 1951); Cf. In re 
Zuckert, 28 F.R.D. 29 (D.C. D.C. 1961), affirmed in part sub. nom. 
Machin v. Zuchert, 316 F.2d 336 (D.C. Cir. 1963), cert, denied, 375 
U.S. 896 (1963). And see, for a state case, Keiffe v. La Salle Realty 
Co. 163 La. 824, 112 So. 799 (1927).



68

To repeat, then. Caldwell swore that he had absolutely 
nothing to testify to that was not either already published, 
or confidential, and hence protected by Judge Zirpoli’s order. 
The government did not seek to show otherwise, nor did it 
say that it wanted Caldwell to authenticate what he had 
published, nor did it give any other reason for his appear­
ance. This was a fishing expedition, cf. F. T. C. v. Amer­
ican Tobacco Co., supra, and on the facts of the case, it was 
clear that there was nothing to fish for. Hence the demand 
for Caldwell’s appearance was unreasonable and oppressive, 
and the Court of Appeals was fully justified in excusing 
Caldwell from appearing.



69

CONCLUSION

The judgment of the Court of Appeals for the Ninth 
Circuit in No. 70-57 should be affirmed. In Nos. 70-85 and 
70-94, the judgments of the Court of Appeals of Kentucky 
and of the Supreme Judicial Court of Massachusetts should 
be reversed.

Respectfully submitted,

Of Counsel:
J a m es  C. G oodale 

Vice President and General 
Counsel

The New York Times 
Company, Inc.

229 West 43rd Street 
New York, N. Y. 10036 

George P . F ellem a n - 
229 West 43rd Street 
New York, N. Y. 10036

Attorneys for The New York 
Times Company, Inc.

A la n  J . H r u sk a  
R obert S. R if k in d  
A n t h o n y  A . D ea n  
Ceav ath , S w a in e  & M oore 

One Chase Manhattan Plaza 
New York, N. Y. lOOOS 

R a l p h  E . G oldberg 
51 West S2nd Street 
New York, N. Y. 10019 

Attorneys for Columbia 
Broadcasting System, Inc.

A lexander M. B ickel  
Attorney for Amici Curiae 
261 St. Ronan Street 
New Haven, Conn. 06511

L a w ren ce  J . M cK ay 
F loyd A bram s 
D a n ie l  S h e e h a n  
Ca h il l , G ordon, S o n n e t t ,

R ein d e l  & O h l  
80 Pine Street 
New York, N, Y. 10005 

CoRYDON B. D u n h a m  
Vice President and General Counsel 
National Broadcasting Company, Inc. 
30 Rockefeller Plaza 
New York, N. Y. 10020 

Attorneys for National 
Broadcasting Company, Inc.

Clarence  J .  F ried  
P h il ip  R . F orlenza  
H a w k in s , D ela field  & W ood 

Cl Wall Street 
New York, N. Y. 10005 

Attorneys for American 
Broadcasting Companies, Inc.

E dward C. W allace 
A r t h u r  F . A b elm a n  
W e il , Go tsh a l  & M anges 

767 Fifth Avenue 
New York, N. Y. 10022 

Attorneys for Association 
of American Publishers



(265)



AI-1

APPENDIX

Subpoenas served upon National Broadcasting Com­
pany, Inc. and Columbia Broadcasting System, Inc. and 
wholly owned stations from 1969 through July 1971.



AI-2

Place: Los Angeles, California

Date: February 21, 1969

Name of Case: No case—Investigation

Court: City Council—City of Los Angeles, California

By Whom Subpoenaed: City Council

Party Subpoenaed: KNBC—Channel 4 Television (gener­
ally)

Material Subpoenaed: Film coverage of August 10, 1968 
Funeral of a Black Panther Member

Nature of Case: Investigation by Municipal Authorities



AI-3

Place: Chicago, Illinois 

Date: February 24, 1969

Name of Case: Federal Grand Jury Investigation

Court: U. S. District Court of the Northern District of 
Illinois

By Whom Subpoenaed: U. S. Attorney

Party Subpoenaed: Edward Kenefick, Station Manager— 
CBS (WBBM-TV)

Material Subpoenaed: Video tape of Abbie Hoffman ap­
pearance on AT RANDOM on May 11-12, 1968

Nature of Case: Grand Jury Investigation



AI-4

Place: Los Angeles, California 
Date: March 17, 1969

Name of Case: People of California v. Harvey K. Smith
Court: Superior Court of California—Los Angeles County 

—Criminal

By Whom Subpoenaed: Defendant

Party Subpoenaed: Custodian of Records, KNBC-TV 
News Dept.

Material Subpoenaed: Unspecified in subpoena 
(contained in application not provided)

Nature of Case: Criminal prosecution



AI-5

Place: New York City 

Date: April 18, 1969

Name of Case: Grand Jury Investigation of Obscene Per­
formance ( “Che!” )

Court: New York County Grand Jury

By Whom Subpoenaed: District Attorney

Party Subpoenaed: Columbia Broadcasting System (Leon 
Rice)

Material Subpoenaed: All film of the production of “Che!” 
against which the District Attorney was seeking an 
indictment for lewd and obscene behavior

Nature of Case: Criminal investigation



AI-6

Place: Los Angeles, California 

Date: April 22, 1969

Name of Case: Carol Wendell v. City of Los Angeles

Court: Superior Court of California—L. A. County- 
Civil

By Whom Subpoenaed: Plaintilf

Party Subpoenaed: Custodian of Films & Records, 
KNBC-TV

Material Subpoenaed: Unspecified in subpoena (infor­
mation contained in application not provided)

Nature of Case: Civil action



AI-7

Place: Chicago, Illinois

Date: May 6, 1969

Name of Case: U. S. v. Jurich

Court: U. S. District Court for the Northern District of 
Illinois

By Whom Subpoenaed: Defendant

Party Subpoenaed: CND—^WBBM-TV

Material Subpoenaed: Film of interviews with U. S. At­
torney For an during convention

Nature of Case: Criminal prosecution



AI-8

Place: Chicago, Illinois 

Date: May 8, 1969

Name of Case: John Linstead v. Chicago

Court: Unspecified (Federal District Court, Northern Dist. 
of 111.)

By Whom Subpoenaed: Plaintiff (though unspecified)

Party Subpoenaed: Mr. Walter Grisham, Chief of News 
—NBC

Material Subpoenaed: All film and tape relevant to the al­
leged beating of John Linstead by the Chicago Police

Nature of Case: Civil Rights action—Demonstrator vs. 
Police Officer



AI-9

Place: Los Angeles, California 

Date: June 11, 1969

Name of Case: Alpha Beta Markets, Inc. v. Joseph Stay

Court: Superior Court of California—Los Angeles County 
—Civil

By Whom Subpoenaed: Defendant

Party Subpoenaed: Custodian of Records, KNBC-TV

Material Subpoenaed: Unspecified in subpoena (contained 
in application not provided)

Nature of Case: Civil action



AI-10

Place: St. Louis, Missouri

Date: June 25, 1969

Name of Case: Central Presbyterian Church vs. The Black 
Liberation Front

Court: United States District Court for the Eastern Dis­
trict of Missouri, Eastern Division

By Whom Subpoenaed: Plaintiff

Party Subpoenaed:. A1 Mann, CBS News Director, St. 
Louis, Mo.

Material Subpoenaed: Film and sound track of the burning 
of a Restraining Order of the United States District 
Court on June 22, 1969, in front of the Central Presby­
terian Church, Clayton, Missouri, and the interview of 
Pastard and Romes on the same occasion

Nature of Case: Civil action



AI-11

Place: New York City 

Date: August 4, 1969

Name of Case: New York vs. Walter Teague

Court: Criminal Court of the City of New York

By Whom Subpoenaed: Defendant

Party Subpoenaed: Columbia Broadcasting System, Inc.

Material Subpoenaed: Film, tape, etc., of anti-war and anti­
draft demonstrations on December 8, 1967, on lower 
Broadway including the events immediately before, dur­
ing and after the arrest of the defendant plus the con­
duct of the officers during these events

Nature of Case: Criminal prosecution



AI-12

Place: New York City 

Date: August 4, 1969

Name of Case: People of the State of New York v. Walter 
T eague

Court: Criminal Court of the City of New York 

By Whom Subpoenaed: Defendant

Party Subpoenaed: Columbia Broadcasting System, Inc.

Material Subpoenaed: All film, video tape, etc. relating to 
the arrest of the Defendant during a demonstration on 
December 8, 1967

Nature of Case: Criminal prosecution



AI-13

Place: Chicago, Illinois

Date: August 7, 1969

Name of Case: U. S. v. David T. Dellinger, et al.

Court: U. S. District Court, Northern District of Illinois

By Whom Subpoenaed: Prosecution (U. S. x\ttorney)

Party Subpoenaed: Robert Ferrante, News Director, CBS 
(Chicago)

Material Subpoenaed: Audio of May 1968, appearance of 
Tom Hayden and Abbie Hoffman on AT RANDOM; 
press conference of Stanley Bass on July 21, 1969; 
press conference of Rennie Davis, William Kunstler, 
and Michael Tigar on July 8, 1969

Natufe of Case: Criminal prosecution



AI-14

Place: District of Columbia

Date: August 9,1969

Name of Case: U. S. v. Elil GaspereUi, et al.

Court: District of Columbia, Court of General Sessions— .. 
Criminal

By Whom Subpoenaed: Defendants

Party Subpoenaed: Noyes Scott, Station Manager, WRC- 
TV

Material Subponaed: All photographs, films, tapes, tran­
scripts or other information gathered at the District 
Building on August 9, 1969 between 9 A.M. and 4 P.M.

Nature of Case: Demonstration—Criminal prosecution



AI-15

Place: Westchester County, New York 

Date: August 20, 1969

Name of Case: Adah Itkin v. Frederick R. Hersh

Coitrt: Family Court

By Whom Subpoenaed: Defendant

Party Subpoenaed: Columbia Broadcasting System, Inc.

Material Subpoenaed: Transcripts and video tapes plus all 
other material of two television news interviews with 
plaintiff

Nature of Case: Child custody



AI-16

Place: Chicago, Illinois

Date: August 22, 1969

Name of Case: State of Illinois v. Dr. Polito

Court: Illinois, Grand Jury

By Whom Subpoenaed: Grand Jury—Prosecutor

Party Subpoenaed: Mr. George Vaught 
Manager of News-—NBC Chicago

Material Subpoenaed: All film or tapes, sound tract, etc. 
of interview conducted by NBC with Attorney Albert 
Sheppard and Dr. Nicholas Polito on Wednesday, 
August 20, 1969

Nature of Case: Criminal investigation



AT-17

Place: Chicago, Illinois

Date: September 22, 1969

Name of Case: U.S. v. Dellinger, et al.

Court: U.S.D.C., Northern District—Illinois

By Whom Supoenaed: Prosecutor

Party Subpoenaed: Mr. Raymond Figelski—ABC News

Material Subpoenaed: Original ABC video tape 13866 
of Michigan Ave. and Balbo Ave. on August 28, 1968 
just before violence broke out

Nature of Case: Demonstrations—Criminal prosecution



Al-18

Place: Chicago, Illinois

Date: September 22, 1969

Name of Case: U. S. v. Dellinger, et al.

Court: U. S. D. C.—Northern District of Illinois

By Whom Subpoenaed: Prosecutor

Party Subpoenaed: Mr. Horace Rinz

Material Subpoenaed: Video tape #  AY-832C, which is a 
film of Michigan and Balbo (Avenues) just before 
violence broke out

Nature of Case: Demonstration—Criminal prosecution



AI-19

Place: Washington, D. C.

Date: September 29, 1969

Name of Case: Investigation of Air Controllers

Court: Federal Aviation Administration

By Whom Subpoenaed: Federal Aviation Administration

Party Subpoenaed: Custodian of Records WCBS, Inc.

Material Subpoenaed: Transcript of WCBS broadcast 
plus all information pertaining thereto

Nature of Case: Investigation of F. A, A. of air-control 
procedures



AI-20

Place: Chicago, Illinois

Date: October 1, 1969

Name of Case: U. S. v. Dellinger

Court: Federal District Court—Northern District of 
Illinois

By Whom Subpoenaed: Prosecutor 

Party Subpoenaed: Robert Lemon

Material Subpoenaed: Transcript of audio and copy of 
tape of press conference held by certain Dellinger de­
fendants on September 30, 1969

Nature of Case: Demonstration—Criminal prosecution



AI-21

Place: Chicago, Illinois

Date: October 3, 1969

Name of Case: U. S. v. Dellinger, et al.

Court: Federal District Court for Northern District of 
Illinois

By Whom Subpoenaed: Prosecutor

Party Subpoenaed: James Stricklin, NBC photographer

Material Subpoenaed: Two original NBC films, unspecified 
(perhaps interviews with Dellinger case defendants or 
attorneys)

Nature of Case: Demonstration—Criminal prosecution



AI-22

Place: Chicago, Illinois

Date: October 3, 1969

Name of case: U. S. v. Dellinger, et al.

Court: U.S.D.C.—Northern Dist. 111.

By Whom Subpoenaed: Prosecutor 

Party Subpoenaed: Mr. Bruce Powell 

Material Subpoenaed:

(A) original of NBC film # 67  (Chicago) speeches by 
Rennard C. Davis and David T. Dellinger of 
August 26, 1968;

(B) NBC film #28  (Chicago)'—press conference by 
Jerry Rubin; on August 30, 1968.

Nature of Case: Demonstration—Criminal prosecution



AI-23

Place: New York City 

Date: October 10, 1969

Name of Case: Arthur Davis and Earl Madison v. Phil­
harmonic Symphony Society of New York

Court: New York City Commission on Human Rights

By Whom Subpoenaed: New York City Commission on 
Human Rights

Party Subpoenaed: WCBS-TV News

Material Subpoenaed: Transcript of television interview

Nature of Case: Racial discrimination—Civil action



AI-24

Place: Chicago, Illinois 

Date: October 10, 1969 

Name of Case: U. S. v. Dellinger

Court: Federal District Court, Northern District of Il­
linois

By Whom Subpoenaed: Prosecutor

Party Subpoenaed: Mr. Bruce Powell, NBC photographer

Material Subpoenaed: Original films taken at Democratic 
National Convention

Nature of Case: Demonstration—Criminal prosecution



AI-25

Place: White Plains, New York

Date: October 13, 1969

Name of Case: People of the State of New York v. Louis 
Farrugia

Court: County Court, White Plains

By Whom Subpoenaed: Defendant

Party Subpoenaed: WCBS Television

Material Svtbpoenaed: All books, papers, records, TV 
tapes, movies, voice recordings, including the equip­
ment to demonstrate their use thereof with relation to 
entry of apartment at 4 North 10th Avenue, Mount 
Vernon, New York, with Mount Vernon police on June 
19, 1968

Nature of Case: Criminal prosecution



AI-26

Place: Chicago, Illinois

Date: October 13, 1969

Name of Case: Unspecified—Grand Jury Investigation (3 
separate subpoenas)

Court: October, 1969 Grand Jury—U. S. D. C., Northern 
Dist. 111.

By Whom Stibpoenaed: Grand Jury—Prosecutor

Party Subpoenaed: Mr. W. C. Prather-—Station Man­
ager, WMAQ—TV

Material Subpoenaed: All records, transcriptions, film 
and recordings pertaining to the Students for a Demo­
cratic Society between October 4 and October 13, 1969 
(SDS—“Days of Rage”)

Nature of Case: Demonstrations—Criminal investigation



AI-27

Place: Chicago, Illinois

Date: October 13, 1969

Name of Case: U. S. v. Dellinger, et al.

Court: U. S. D. C., Northern District of Illinois

By Whom Subpoenaed: Prosecutor

Party Subpoenaed: Mr. George Vaught

Material Subpoenaed: Audio recording of press conference 
held on Friday, October 10, 1969

Nature of Case: Demonstrations—Criminal prosecution



AI-28

Place: Chicago, Illinois

Date: October 14, 1969

Name of Case: Federal Grand Jury Investigation

Court: United States District Court Northern District of 
Illinois

By Whom Siihpoenaed: United States Attorney

Party Subpoenaed: Columbia Broadcasting System

Material Subpoenaed: All records, transcripts, films, re­
cordings pertaining to the Students for a Democratic 
Society between October 4 and October 13, 1969

Nature of Case: Grand Jury Investigation of political 
demonstrations and criminal activity



AI-29
Place: Chicago, Illinois

Date: October 14, 1969

Name of Case: Federal Grand Jury Investigation

Court: United States District Court Northern District of 
Illinois

By Whom Subpoenaed: United States Attorney

Party Subpoenaed: WBBM Radio Station

Material Subpoenaed: All records, transcripts, films, re­
cordings pertaining to the Students for a Democratic 
Society between October 4 and October 13, 1969

Nature of Case: Grand Jury Investigation of political 
demonstrations and criminal activity



AI-30

Place: Chicago, Illinois

Date: October 14, 1969

Name of Case: Federal Grand Jury Investigation

Court: United States District Court Northern District of 
Illinois

By Whom Subpoenaed: United States Attorney

Party Subpoenaed: WBBM TV

Material Subpoenaed: All records, transcripts, films, re­
cordings pertaining to the Students for a Democratic 
Society between October 4 and October 13, 1969

Nature of Case: Grand Jury Investigation of political 
demonstrations and criminal activity



AI-31

Place: Chicago, Illinois

Date: October 15, 1969

Name of Case: Unspecified

Court: Grand Jury—Cook County

By Whom Siibpoenaed: Prosecutor

Party Subpoenaed: Film editor of NBC—Chicago

Material Subpoenaed: Any and all film and photographs 
concerning SDS “Days of Rage” between October 8 
and October 11, 1969—especially film relating to the 
crippling of Richard Elrod.

Nature of Case: Demonstration—^SDS—Criminal investi­
gation



AT-32

Place: Chicago, Illinois

Date: November 18, 1969

Name of Case: U. S. v. Dellinger, et al.

Court: U. S. District Court, N. D. Illinois

By Whom Subpoenaed: Defendants

Party Subpoenaed: Columbia Broadcasting System

Material Siibpoenaed: 52 news film clips concerning vari­
ous demonstrations and street activities in connection 
with the Demiocratic National Convention in Chicago 
plus the names and addresses and phone numbers of 
each cameraman involved

Nature of Case: Criminal prosecution



AI-33

Place: New York City 

Date: November 19, 1969

Name of Case: People of the State of New York v. Jeanne 
Ashford, et al.

Court: Criminal Court of the City of New York

By Whom Subpoenaed: Defendants

Party Subpoenaed: Columbia Broadcasting System, Inc.

Material Subpoenaed: All films, etc. concerning the arrest 
of Jeanne Ashford at a demonstration on September 18, 
1969

Nature of Case: Criminal prosecution



AI-34

Place: Chicago, Illinois

Date: November 24, 1969

Name of Case: Yumich v. Riordan

Court: U.S.D.C.N.D. Illinois, Eastern Division

By Whom Subpoenaed: Plaintiff—Hilton Hotels

Party Subpoenaed: Robert Lemon, General Manager, 
NBC News, Chicago

Material Subpoenaed: Films showing events surrounding 
charges that “McCarthy for President Committee” 
members had dropped articles from Hilton Hotel win­
dows, etc.

Nature of Case: Civil Action—Demonstrations.



AI-3S

Place: Chicago, Illinois

Date: November 24, 1969

Name of Case: Yumich v. Riordan

Court: U. S. District Court for the Northern District of 
Illinois

By Whom Subpoenaed: Defendant

Party Subpoenaed: Columbia Broadcasting System 
(WBBM-TV)

Material Subpoenaed: Any and all moving picture film, 
television film, video tapes, air film, photographs, audio 
transcriptions, recordings and tapes containing, depict­
ing, relating or referring to any of the following events 
which may have occurred in Chicago, Illinois during 
the week of the Democratic National Convention in 
1968:

1. The throwing, dropping or falling of any materials 
or items from the Hilton Hotel, including but not 
limited to C. B. S. Reel No. 20-5;

2. Any event occurring on the ISth floor of the Hilton 
Hotel, including but not limited to the removal of 
any persons from the ISth floor and particularly 
Room 1506A, 1502 and 1502A between 3:30 A.M. 
and 5 :30 A.M. on August 30, 1968 by any Chicago 
Police Officers or Illinois National Guardsmen;

3. A sit-in which occurred in the lobby of the Hilton 
Hotel between 5 :00 A.M. and 7 :00 A.M. on August 
30, 1968;



AI-36

Any interview of or statement taken from any per­
son who claimed knowledge of, witnessed, or partici­
pated directly or indirectly in the events described 
in paragraphs 1, 2, and 3 above including but not 
limited to :

Senator Eugene McCarthy, George Yumich, John 
William Warren, Phillip Steven Shear, Major 
Fred Tress, Illinois National Guard, and/or any 
member of the Chicago Police Department, any 
member of the Illinois National Guard, any em­
ployee of Hilton Hotels Corporation, and any 
member, worker or volunteer for the “McCarthy 
for President Committee.”

Nature of Case: Suit against Hilton Hotel for injury dur­
ing police raid on McCarthy’s suite during the 1968 
Democratic Convention in Chicago



AI-37

Place: Chicago, Illinois

Date: December 10, 1969

Name of Case: Disbarment proceeding—
Frank Oliver, Esq.

Court: Chief Judge William J. Campbell

By Whom Subpoenaed: Unspecified

Party Subpoenaed: NBC News—generally

Material Subpoenaed: Film of interview with attorney 
Frank Oliver, Esq. conducted on November 6, 1969 
in Chicago

Nature of Case: Disbarment proceedings



AI-38

Place: Chicago, Illinois 

Date: December 10, 1969

Name of Case: Grand Jury Investigation—Russell Meeks 

Court: Cook County State Court—Grand Jury 

By Whom Subpoenaed: Prosecutor 

Party Subpoenaed: NBC generally

Material Subpoenaed: All news film and tape recordings 
relative to and concerning a speech allegedly made by 
Russell Meeks at 9:00 P.M. at the First Baptist Church 
of Melrose Park on December 9, 1969 in which D. A. 
contended Meeks threatened to kill prosecuting attorney 
Edward Hanrahan

Nature of Case: Demonstration—Criminal investigation



AI-39

Place: Chicago, Illinois

Date: December 11, 1969

Name of Case: U. S. v. Dellinger  ̂ et al.

Court: U. S. D. C.—Northern District of Illinois

By Whom Subpoenaed: Prosecutor

Party Subpoenaed: NBC—Chicago

Material Subpoenaed: Transcript of audio and copies of 
tape of Richard J. Daley’s April 14, 1968 “shoot to kill” 
press conference

Nature of Case: Demonstrations—criminal prosecution



AI-40

Place: Chicago, Illinois

Date: December 12, 1969

Name of Case: Peoples. Truelock, et al.

Court: Circuit Court of Cook County, Illinois

By Whom Subpoenaed: Defendant

Party Subpoenaed: Robert Ferrante, News Director, 
WBBM-TV/CBS

Material Subpoenaed: A  full and complete original of the 
following items relating to the incident between police 
and Black Panthers at 2337 West Monroe Street, Chi­
cago, Illinois, on December 4, 1969:
(1) The film/video tape and sound track broadcast on 
or about 10:10 P.M., December 11, 1969, as an alleged 
reenactment of said incident; (2) The film/video tape 
and sound track, which was edited out of said broad­
cast; (3) All notes, manuscripts, scripts, cue cards, 
production notes, personnel records and memoranda 
used in the planning, preparation and production of said 
alleged re-enactment

Nature of Case: Criminal prosecution



AI-41

Place: Chicago, Illinois

Date: December 16, 1969

Name of Case: U. S. v. Dellinger, et al.

Court: U.S.D.C.—N. D. Illinois

By Whom Subpoenaed: Defendants

Party Subpoenaed: Mr. Bjornsen—NBC New York 
Allen Farnum—NBC Burbank

Materials Subpoenaed: Ad testificatum

Nature of Case: Demonstrations—Criminal prosecution



AI-42

Place: Northern District of Indiana 

Date: December 16, 1969

Name of Case: Atlantic Richfield Co. v. AFofL-CIO Local
7-210

Court: U. S. D. C.—N. D. Indiana

By Whom Subpoenaed: Plaintiff

Party Subpoenaed: NBC—WMAQ TV—Chicago

Material Subpoenaed: Newsreel shown on WMAQ TV— 
Chicago concerning a labor dispute

Nature of Case: Labor dispute



AI-43

Place: Chicago, Illinois

Date: December 16, 1969

Name of Case: U. S. v. Dellinger, et al.

Court: U. S. D. C. N. D. Illinois

By Whom Subpoenaed: Defendants

Party Subpoenaed: Jack Malick—NEC

Material Subpoenaed: Specified films taken at 1968 Demo­
cratic National Convention disorders

Nature of Case: Demonstrations—Criminal prosecution



AI-44

Place: Chicago, Illinois

Date: December 16, 1969

Name of Case: U. S. v. Dellinger, et al.

Court: U. S. D. C. N. D. Illinois

By Whom Subpoenaed: Defendants

Party Subpoenaed: Eugene Schwartz—NBC

Material Subpoenaed: Specified films re Democratic Na­
tional Convention disorders

Nature of Case: Demonstrations—Criminal prosecution



AI-45

Place: Chicago, Illinois 

Date: December 17, 1969

Name of Case: State of III. v. Richard Brown, et al.

Court: 111. State Criminal Court

By Whom Subpoenaed: Defendant

Party Subpoenaed: NBC—WMAQ TV—Chicago

Material Subpoenaed: All photographs, films, etc. of a 
meeting of the Lincoln Park Community Conservation 
Council held at Waller High School in Chicago on July 
29, 1969

Nature of Case: Demonstrations—^̂ Criminal prosecution



AI-46

Place: New York City 

Date: December 18, 1969

Name of Case: State of New York v. Jonah Raskin

Court: Criminal Court, County of New York

By Whom Subpoenaed: N. Y. Civil Liberties Union— 
Defendant

Party Subpoenaed: National Broadcasting Company

Material Subpoenaed: All photographs and films taken at 
or near the Waldorf-Astoria Hotel on December 9, 1969

Nature of Case: Demonstrations—^Criminal prosecution



AI-47

Place: New York City

Date: December 18, 1969

Name of Case: People v. Jonah Raskin

Court: Criminal Court, County of New York

By Whom Subpoenaed: Defendant

Party Subpoenaed: Columbia Broadcasting System, Inc.

Material Subpoenaed: All photographs of films taken at 
or near the Waldorf-Astoria Hotel on December 9, 
1969, plus all underlying and associated documents, 
writings, etc.

Nature of Case: Criminal prosecution



AI-48

Place: Chicago, Illinois 

Date: December 22, 1969

Name of Case: Federal Grand Jury Black Panther “Shoot- 
Out” Investigation

Court: U. S. District Court N. D. Illinois

By Whom Subpoenaed: Prosecution (U. S. Attorney)

Party Subpoenaed: Columbia Broadcasting System

Material Subpoenaed: All film and videotapes relating to 
the original incident which occurred on December 4, 
1969

Nature of Case: Grand Jury investigation



A1 49

Place: New York City 

Date: December 25, 1969

Name of Case: David S. Stodolsky, et al. v. Louis B. 
Hershey, et al.

Court: District Court, Western District of Wisconsin

By Whom Subpoenaed: Defendant (U. S. Attorney)

Party Subpoenaed: CBS, Inc.

Material Subpoenaed: Videotapes showing random selec­
tion of dates chosen in Selective Service Lottery con­
ducted on December 1, 1969

Nature of Case: Criminal prosecution



AI-SO

Place: Chicago, Illinois 

Date: January 5, 1970

Name of Case: State of Illinois v. Phyllis Prentice 

Court: Circuit Court of Cook County 

By Whom Subpoenaed: Defendant 

Party Subpoenaed: John Gibbs—NBC 

Material Subpoenaed:
(a) film “SDS Cut Story”—aired on Huntley-Brinkley, 

Oct. 11, 1969
(b) Photographer of “Construction Workers” film 

of 9/25/69 taken outside Customs House building 
at noon (not the film)

Nature of Case: Demonstration—Criminal prosecution



AI-51

Place: Chicago, Illinois 

Date: January 5, 1970 

Name of Case: Unspecified 

Court: Unspecified

By Whom Subpoenaed: State’s Attorney’s office 

Party Subpoenaed: NBC—Chicago

Material Subpoenaed: to produce in Room 805 of the 
County Building certain film and tapes relating to the 
SDS and Customs House Building confrontations

Nature of Case: Demonstrations—Criminal investigation



AI-52

^lace: Chicago, Illinois 

Date: January 6, 1970

Name of Case: Grand Jury Investigation of Black Panthers

Court: Federal Grand Jury, Northern District of Illinois

By Whom Subpoenaed: Prosecution (U. S. Attorney)

Party Subpoenaed: William C. O’Donnell, Vice President 
& General Manager, WBBM Radio

Material Subpoenaed: All tapes or tape recordings of the 
Joe Cummings interviews on December 4, 1969, at 2337 
West Monroe of Chicago Police Officers, Black Panther 
Party members and other bystanders or witnesses

Nature of Case: Criminal investigation



AI-53

Place: San Francisco, California

Date: January 12, 1970

Name of Case: Grand Jury Black Panther Investigation

Court: U. S. District Court N. D. California

By Whom Subpoenaed: Prosecution (U. S. Attorney)

Party Subpoenaed: Richard S. Salant, President, CBS 
News Division of Columbia Broadcasting Co.

Material Subpoenaed: All films, negatives and prints and 
all video and sound tapes recorded in connection with 
the preparation for the CBS television program broad­
cast on Tuesday, January 6, 1970, relating to the Black 
Panther Party

Nature of Case: Black Panther investigation



AI-54

Place: San Francisco, California

Date: January 12, 1970

Name of Case: Black Panther Investigation

Court: U. S. District Court, Northern District of Cali­
fornia

By Whom Subpoenaed: Federal Grand Jury

Party Subpoenaed: Richard S. Salant, President, CBS 
News Division of Columbia Broadcasting Co.

Material Subpoenaed: All film relating to the Black Pan­
ther Party made in preparation for a CBS television 
program broadcast on Tuesday, January 6, 1970

Nature of Case: Grand Jury investigation



AI-S5

Place: Chicago, Illinois

Date: January IS, 1970

Name of Case: State of III. v. Wendy Panken

Court: State Criminal Ct. of Illinois

By Whom Subpoenaed: Defendants—SDS

Party Subpoenaed: NBC—Chicago

Material Subpoenaed: All films, etc. relating to incident 
during afternoon of October 11, 1969 in Haymarket 
Square area, 600 block of West Randolph Street in­
volving police officers and Wendy J. Panken, Mark 
Rudd, etc.

Nature of Case: Demonstration—Criminal prosecution



AI-56

Place: Chicago, Illinois

Date: January 15, 1970

Name of Case: U. S. v. Dellinger, et ai.

Court: U. S. D. C. N. D.—Illinois 

By Whom Subpoenaed: Prosecutor 

Party Subpoenaed: NBC—Chicago

Material Subpoenaed: Tape of statement made by William 
Kunstler aired by NBC Chicago on January 12, 1970, 
Both the parts aired and any parts not aired

Nature of Case: Demonstrations—Criminal prosecution



AI-57

Place: San Francisco, California

Date: January 16, 1970

Name of Case: Grand Jury Black Panther Investigation

Court: U. S. District Court, N. D. California

By Whom Subpoenaed: Prosecution (U.S. Attorney)

Party Subpoenaed: Richard S. Salant, President, CBS 
News Division of Columbia Broadcasting Co.

Material Subpoenaed: All correspondence, memoranda, etc. 
involved in setting up any taping or filming of Black 
Panther activities and the actual film so recorded, and 
all records indicating any payments made to the Black 
Panthers for such filming and interviewing plus any 
and all information regarding “contacts and inter­
mediaries”

Nature of Case: Grand Jury investigation of Black Panther 
activities



AI-58

Place: Los Angeles, California

Date: For January 21, 1970 appearance (subpoena
undated)

Name of Case: People of California v. Richard F. Davidson

Court: Municipal Court of California, County of L. A., 
Los Angeles District

By Whom Subpoenaed: Prosecutor

Party Subpoenaed: Custodian of Records—KNBC-TV

Material Subpoenaed: All prints, negatives, copies, etc. of 
films taken by employees of KNBC on November 16, 
1970 between 9 A. M. and 2 P. M. in or around the Los 
Angeles City Coliseum, 2220 N. Spring, Los x\ngeles, 
California

Nature of Case: Criminal prosecution



A Io9

Place: Chicago, Illinois

Date: January 25, 1970

Name of Case: People v. Lee Hettema

Court: Circuit Court of Cook County

By Whom Subpoenaed: Defendant

Party Subpoenaed: Film Library in the Columbia Broad­
casting System

Material Subpoenaed: Any and all films or video tapes 
which refer in any way to the events involving the 
so-called Weatherman faction of the Students for a 
Democratic Society (SDS) which occurred in Chicago 
during the latter part of October, 1969. The films and 
tapes shall not be limited to those taken or made during 
that period, but shall include all those taken or made 
up to and including the date of service upon you, in­
cluding, but not limited to, those of the events them­
selves, status reports on Corporation Counsel Richard 
Elrod, reports of the indictments by the “Special SDS 
Grand Jury”, the press conference held by the “Special 
SDS Grand Jury” Foreman in late December, 1969, 
and editorials, if any, by the CBS station

Nature of Case: Criminal prosecution



AI-60

Place: Chicago, Illinois

Date: January 28, 1970

Name of Case: State of III. v. Lee Hettema

Court: State of Illinois Criminal Court

By Whom Subpoenaed: Defendant

Party Subpoenaed: NBC—Chicago

Material Subpoenaed: Any and all film, tapes, etc. which 
discuss in any way the events involving the October, 
1969 SDS—Weatherman “Days of Rage”

Nature of Case: Demonstrations—Criminal prosecution



Al-61

Place: Chicago, Illinois 

Date: January 29,1970

Name of Case: Contract Buyers Case {Chatham Town 
House V. Moss)

Court: U. S. D. C. N. D. Illinois

By Whom Subpoenaed: State of Illinois

Party Subpoenaed: NBC—Chicago

Material Subpoenaed: Film and tape of evictions of Con­
tract Buyers League members

Nature of Case: Demonstration—Criminal investigation



AI-62

Place: Chicago, Illinois

Date: February 8,1970

Name of Case: U. S. y . Dellinger, et al.

Court: U. S. D. C. N. D. Illinois

By Whom Subpoenaed: Defendants

Party Subpoenaed: Charles Boyle—NBC cameraman

Material Subpoenaed: Ad testificatum to authenticate a 
given piece of film in possession of the defendants

Nature of Case: Demonstration—Criminal prosecution



AI-63

Place: St. Louis, Missouri 

Date: February 24, 1970

Name of Case: Grand Jury Investigation of Demonstration

Court: U. S. District Court for the Gastern District of 
Missouri

By Whom Subpoenaed: Prosecution (U. S. Attorney)

Party Subpoenaed: A1 Mann, Director of News KMOX- 
TV

Material Subpoenaed: The 16 mm. film which was taken by 
KMOX-TV personnel on February 23, 1970, at an out­
door speaker’s rally at Washington University, this film 
to include both the aired ’ portion of the film which was 
publicly broadcast and also the various portions which 
were edited out of the news film aired publicly; and one 
copy of the written script of the aired portion of the 
above-described film

Nature of Case: Grand Jury investigation



A1 64

Place: Chicago, Illinois

Date: March 6,1970

Name of Case: Deborah Remvick v. United Airlines

Court: Unspecified (Federal District Court—Illinois)

By Whom Subpoenaed: NAACP—attorney for Plaintiflf

Party Subpoenaed: National Broadcasting Company—Chi­
cago

Material Subpoenaed: Film of interview with Miss Deb­
orah Renwick, allegedly discharged from United Air­
lines for wearing Afro hair style

Nature of Case: Civil Rights action



AI-65

Place: Newark, New Jersey

Date: March 9, 1970

Name of Case: State of New Jersey v. David Selden

Court: Superior Court of the State of New Jersey

By Whom Subpoenaed: Prosecutor

Party Subpoenaed: Mr. Richard Graf, Jim Collis NBC 
News, New York

Material Subpoenaed: Film file number 43073 of arrest 
of David Selden in Newark, N. J. on February 18, 
1970, charged with contempt of court

Nature of Case: Labor Demonstration—Criminal pros­
ecution



AI-66

Place: Chicago, 111.

Date: For appearance on March 16, 1970 (Subpoena un­
dated)

Name of Case: State of Illinois v. Bernadine Dohrn, et ah 

Court: Circuit Court of Cook County 

By Whom Subpoenaed: Defendants 

Party Subpoenaed: Film Librarian of WMAQ-TV 

Material Siibpoenaed:
A) All films of tapes shown on T. V. in Chicago in­

volving Weathermen “Days of Rage”, October 
1969;

B) Copies of all editorials or broadcasts shown on 
Chicago T. V. which in any way relate to “Days 
of Rage” ;

C) All outtakes which relate to demonstration of 
women on October 9, 1969 at corner of Grant Park

Nature of Case: Demonstration—Criminal prosecution



AI-67

Place: Chicago, Illinois

Date: March , 1970

Name of Case: State of Illinois v. Bernadine Dohrn, et al.

Court: Circuit Court of Cook County

By Whom Subpoenaed: Defendants

Party Subpoenaed: Film Library in the Columbia Broad­
casting System

Material Subpoenaed: All film, videotape involving Weath­
ermen activities during October, 1969, and including 
film and videotape shown up to the date of the subpoena 
plus typewritten copies of all editorials and news broad­
casts referring to the same events plus film videotapes, 
etc. showing demonstrations in Grant Park on the 
morning of October 9, 1969, including the activities of 
the named defendants plus others

Nature of Case: Criminal prosecution



AI-68

Place: New York City

Date: March 24, 1970

Name of Case: U. S. A. v. Branch 41, National Association 
of Letter Carriers, et al.

Court: U. S. District Court, Eastern District of New York

By Whom Stibpoenaed: Prosecution

Party Subpoenaed: Director of News, CBS Television, and 
to the individual employees who recorded the voices and 
images on the tapes and recordings referred to more 
fully (in the subpoena)

Material Subpoenaed: Audio and visual tapes and record­
ings purported to be the recorded voices and images of 
one Benjamin Zemsky, President, United Federation of 
Postal Clerks, Local 251, AFL-CIO, and one Jack 
Leventhal, President, National Association of Letter 
Carriers, Branch 41, made from, news broadcasts and, 
in fact, broadcast on Saturday, March 21 and Sunday, 
March 22, 1970, as well as the mechanical means to 
reproduce these recordings in the courtroom

Nature of Case: Criminal prosecution



AI-69

Place: Washington, D. C.

Date: March 30, 1970

Name of Case: U. S. A. v. Professional Air Traffic Con­
trollers Organization

Court: U. S. District Court for the District of Columbia 

By Whom Subpoenaed: Defendants 

Party Subpoenaed: CBS, Inc.

Material Subpoenaed: All film clips containing statements 
made by F. Lee Bailey on March 26, 1970, at the Sonesta 
Hotel in Washington, D. C.

Nature of Case: Criminal prosecution



AI-70

Place: St. Louis, Missouri

Date: March 30, 1970

Name of Case: Grand Jury Investigation of student 
demonstration

Court: U. S. District Court E. D. Missouri

By Whom Subpoenaed: Grand Jury

Party Subpoenaed: A1 Mann, Director of Ne-ws, KMOX- 
TV

Material Subpoenaed: All 16mm. film taken at an outdoor 
rally at Washington University on February 23, 1970, 
by KMOX-TV personnel plus one copy of the written 
script of the aired portion of the demanded film

Nature of Case: Grand Jury investigation of a demonstra­
tion



AI-71

Place: New York City

Date: April 2, 1970

Name of Case: Air Transport Association of America^ et 
al. V. The Professional Air Traffic Controllers Organi­
sation, et al.

Court: U. S. District Court for the Kastern District of 
New York

By Whom Subpoenaed: Plaintiffs

Party Subpoenaed: Columbia Broadcasting System, Inc.

Material Subpoenaed: All tapes and transcripts of broad­
casts over radio and television from March 20, 1970, to 
April 2, 1970, referring to the air controllers’ strike

Nature of Case: Civil action



AI-72

Place: Los Angeles, California

Date: For April 21, 1970 appearance (Subpoena undated)

Name of Case: State of California v. Howard Stone

Court: Los Angeles Municipal—Criminal

By Whom Subpoenaed: Prosecutor

Party Subpoenaed: Representative: KNBC News

Material Subpoenaed: All film taken BAbruary 19, 1970 
and February 20, 1970 in Westwood of the Westwood 
demonstrations

Nature of Case: Demonstration—Criminal prosecution



AI-73

Place: Chicago, Illinois 

Date: April 21, 1970

Name of Case: State of Illinois v. Willie Bibbs and Wm.
Jackson

Court: Circuit Court of Cook County—State Criminal

By Whom Subpoenaed: Defendants

Party Subpoenaed: Charles Boyle — photographer for 
NBC News

Material Subpoenaed: Not given 

Nature of Case: Criminal prosecution



AI-74

Place: Chicago, Illinois

Date: April 29, 1970

Name of Case: Skolnick v. National Archives and Records 
Service of the United States of America

Court: U. S. District Court for the Northern District of 
Illinois

By Whom Subpoenaed: Plaintiff

Party Subpoenaed: John Lane, Bureau Manager, as agent 
for the Columbia Broadcasting System News

Material Subpoenaed: Original film or true duplicate there­
of, without any deletions or changes, and without any 
parts removed or left out, of Lydon B. Johnson being 
interviewed by Walter Cronkite; said film containing 
statements and comments of Lyndon B. Johnson, in re­
sponse to questions and comments of Walter Cronkite, 
regarding Warren Commission findings on the assassi­
nation of John F. Kennedy, and certain other statements 
and comments of Johnson relating to the Texas trip 
on or before November 22, 1963, of John F. Kennedy, 
and comments and statements by Johnson on matters 
related thereto

Nature of Case: Civil proceedings to force National Ar­
chives to release documents in connection with the 
Kennedy assassination



AI-7S

Place: Los Angeles, California 

Date: May 1, 1970

Name of Case: L. A. Unified School District v. United 
Teachers—L. A.

Court: Superior Court of California—L. A. County—Civil 

By Whom Subpoenaed: Defendants S-U United Teachers 

Party Subpoenaed: Custodians of News Film of KNBC-TV 

Material Subpoenaed: Listed in application not provided 

Nature of Case: Demonstration—Civil action



AI-76

Place: Portage County, Ohio

Date: May 13, 1970

Name of Case: State of Ohio v. Robert White, President 
of Kent State University

Court: Portage County Court, State of Ohio

By Whom Subpoenaed: Prosecutor

Party Subpoenaed: W. K. Y. C. Radio and Television Sta­
tion William E. Leeds, Jr., Director of News

Material Subpoenaed: Produce forthwith a film in your 
possession taken on May 4, 1970 on Kent State Univer­
sity Commons in the vicinity of Taylor Hall of Kent 
State University and place it in the custodianship of 
Dan Sumrok, Investigating Officer of the Ohio State 
Highway Patrol

Nature of Case: Demonstration—Cambodia—Kent State— 
Criminal investigation



A l-77

Place: New York City-

Date; For appearance on May 24, 1970 (Subpoena un­
dated)

Name of Case: State of New York v. Hulbert Saures

Court: Criminal Court of New York

By Whom Subpoenaed: Defendant

Party Subpoenaed: National Broadcasting Company

Material Subpoenaed: Film of welfare demonstration on 
April 15, 1969 in vicinity of 42nd through 46th Streets 
from Lexing'ton Ave. to Fifth Ave.

Nature of Case: Demonstration—Criminal prosecution



AI-78

Place: Bridgeport, Connecticut 

Date: June 2, 1970

Name of Case: Connecticut v. Lonnie McT.ucas 

Court: Superior Court 

By Whom Subpoenaed: Prosecution 

Party Subpoenaed: CBS News

Material Subpoenaed: Any and all transcripts of news 
stories broadcast on the CBS E ven in g  N ews relating 
to the Black Panther Party and the alleged murder of 
Alex Rackley on 27 specified days in 1969 and 1970 plus 
the 60 Minutes broadcast concerning the Black Panthers

Nature of Case: Criminal prosecution



Al-79

Place: District of Columbia

Date: June 8, 1970

Name of Case: U. S. v. James Bain

Court: District of Columbia—Court of General Sessions— 
Criminal

By Whom Subpoenaed: Defendant

Party Subpoenaed: LeRoy Parker connected with station 
WRC-TV)

Material Subpoenaed: None given (Subpoena Ad Testi- 
ficatum)

Nature of Case: Demonstration— (Cambodia and Kent 
State) —Criminal prosecution



AI-80

Place: District of Columbia

Date: June 8, 1970

Name of Case: U. S. v. James Bain

Court: District of Columbia—General Sessions—Criminal

By Whom Subpoenaed: Defendant

Party Subpoenaed: Thomas Houghton—News Director
—WRC—or his authorized representative

Material Subpoenaed: All films and video tapes of the 
events at Ward Circle and American University on 
Monday, May 11, 1970

Nature of Case: Demonstration— (Cambodia and Kent 
State)—Criminal prosecution



AI-81

Place: Los Angeles, California

Date: For June 8, 1970 appearance (Subpoena undated)

Name of Case: State of California v. Stuart Kurland and 
Steven Yember

Court: Los Angeles Municipal—Criminal

By Whom Subpoenaed: Prosecutor

Party Subpoenaed: Representative; KNBC-TV

Material Subpoenaed: Films depicting the disturbances at
U. C. L. A. of May 5, 1970, both shown on television 
and the outtakes

Nature of Case: Demonstrations—Criminal prosecution— 
(Cambodia)



AI-82

Place: St. Louis, Missouri 

Date: July 1, 1970

Name of Case: U. S. v. Ralph Long, et al.

Court: U. S. District Court for the Eastern District of 
Missouri

By Whom Subpoenaed: Defense

Party Subpoenaed: Bill Lehrman, KMOX-TV

Material Subpoenaed: Notes of interviews of law enforce­
ment officials and others pertaining to the arrest of 
Frank James Tocco on June 11, 1970

Nature of Case: Criminal prosecution



AI-83

Place: St. Louis, Missouri 

Date: July 1, 1970

Name of Case: U. S. v. Ralph Long, et al.

Court: U. S. District Court for the Eastern District of 
Missouri

By Whom Subpoenaed: Defense

Party Subpoenaed: Al Mann, News Director, KMOX-TV

Material Subpoenaed: Television film and newscasts con­
cerning the arrest of Frank James Tocco

Nature of Case: Criminal prosecution



AI-84

Place: vSan Francisco, California

Date: July 2, 1970

Name of Case: White, et al. v. U. S. A.

Court: U. S. District Court, N. D. California

By Whom Subpoenaed: Plaintiffs

Party Subpoenaed: Jack R. Wagner, Director of Broad­
cast Operations, Radio Station KCBS

Material Subpoenaed: All records, documents, photos and 
other material concerning low-flying military aircraft 
vrithin 100 miles of Yosemite Park and Death Valley 
between January 1, 1963 and July 2, 1970. Demand 
includes transcripts of news broadcasts, editorials, 
letters to and from the station, correspondence between 
KCBS and the Pentagon, U. S. Navy, U. S. Govern­
ment agencies showing or mentioning low-flying air­
craft

Nature of Case: Suit for damages for noise pollution, and 
damage to the hearing of their clients caused by low- 
flying aircraft



AI-85

Place: Philadelphia, Pennsylvania

Date: July 24, 1970

Name of Case: Beauford v. City of Philadelphia

Court: U. S. District Court for the Eastern District of 
Pennsylvania

By Whom Subpoenaed: Plaintiff

Party Subpoenaed: Mel Levine, WCAU-TV

Material Subpoenaed: Black-and-white film print of the 
report on American basketball players in Europe—- 
broadcast on T h e  CBS E v enin g  N ews w it h  R oger 
M udd on March 7, 1970

Nature of Case: Action for damages against City of 
Philadelphia



AI-86

Place: Los Angeles, California 

Date: July 31, 1970

Name of Case: People of the State of California v. Charles 
Manson, et al.

Court: Superior Court of the State of California 

By Whom Subpoenaed: Prosecution 

Party Subpoenaed: Jon Goodman

Material Subpoenaed: Tape-recording of interview with 
Attorney Paul Caruso made July 16, 1970, relating to 
Susan Denise Adkins

Nature of Case: Criminal prosecution



AI-87

Place: New York City

Date: August 20, 1970

Name of Case: People v. Edward Deutsch

Court: Criminal Court of the City of New York, Queens 
County

By Whom Subpoenaed: Prosecution

Party Subpoenaed: Columbia Broadcasting System, Inc.

Material S^tbpoenaed: All copies of advertising aired on 
WCBS-AM for the Delco Corporation

Nature of Case: Criminal prosecution



AI-88

Place: Los Angeles, California 

Date: August 20, 1970

Name of Case: People of California v. Mario A. Trujillo

Court: Superior Court of California—L. A. County— 
Criminal

By Whom SubpoenaedcDtitnAscat.

Party Subpoenaed: 2 Television News Reporters. (K) 
NBC—Burbank, California; and Custodian of News 
Film

Material Subpoenaed: Subpoena ad testificatum 

NaHire of Case: Criminal prosecution



AI-89

Place: Chicago, Illinois

Date: September 9, 1970

Name of Case: Chicago Transit Authority vs. Allen

Court: Circuit Court of Cook County, Illinois—Chancery 
Division

By Whom Subpoenaed: Plaintiff

Party Subpoenaed: WBBM-TV

Material Subpoenaed: Copies of all telecasts, film and re­
cordings with reference to the Wildcat Strike involving 
the Chicago Transit Authority on September 7 and 8, 
1968

Nature of Case: Criminal prosecution



AI-90

Place: Los Angeles, California 

Date: September 23, 1970

Name of Case: People of California v. John L. Battaglia

Court: Superior Court of California—L. A. County— 
Criminal

By Whom Subpoenaed: Defendant

Party Subpoenaed: Custodian of Records—KNBC-TV

Material Subpoenaed: Contained only in application for 
subpoena—not stated in subpoena

Nature of Case: Criminal prosecution



AI-91

Place: Los Angeles, California

Date: October 20, 1970

Name of Case: State of California v. Charles Manson, 
et al.

Court: Superior Court of State of California, L. A. County 
—Criminal

By Whom Subpoenaed: Prosecutor

Party Subpoenaed: Ed Adler and/or Stan Atkinson—of 
NBC

Material Subpoenaed: A transcript or manuscript of the 
report given by Stan Atkinson on October 5, 1970, on 
5 o’clock News over KNBC T. V., entitled “Manson 
Girls”

Nature of Case: Criminal prosecution



AI-92

Place: Los Angeles, California

Date: October 20, 1970

Name of Case: State of California v. Baesa, Cabrero, et al.

Court: Los Angeles Municipal Court

By Whom Subpoenaed: Defendants

Party Custodian of Records—KNBC-TV

Material Svibpoenaed: Film taken on Sunday, August 30, 
1970 at 6;15 P.M., depicting the arrest of defendants in 
front of residence on La Vern St., and depicting events 
just prior to and after said arrests (arrested for acts 
filmed newsman at scene).

Nature of Case: Demonstration—Criminal prosecution



AI-93

Place: Philadelphia, Pennsylvania 

Date: October 28, 1970

Name of Case: Commonwealth of Pennsylvania v. Storck 

Court: Quarter Session, Doylestown, Pennsylvania 

By Whom Subpoenaed: Defendant 

Party Subpoenaed: WCAU

Material Subpoenaed: All tape or video tape recordings 
concerning news broadcasts of a triple murder of which 
Storck was accused. Demand was also for all underlying 
or relevant documents, records, schedules, etc. of the 
broadcasts

Nature of Case: Motion for Change of Venue in a murder 
trial



AI-94

Place: New York City 

Date: December 4, 1970

Name of Case: People of the State of New York v. Charles 
Mathis

Court: New York Grand Jury

By Whom Subpoenaed: Prosecution (District Attorney) 

Party Subpoenaed: WCBS

Material Subpoenaed: All recordings of telephone conver­
sations between members of WCBS and Charles Mathis 
on December 1, 1970, as broadcast

Nature of Case: Grand Jury investigation



AI-95

Place: Chicago, Illinois

Date: December 31, 1970

Name of Case: Murray v. Devitt

Court: Circuit Court of Cook County

By Whom Subpoenaed: Plaintiff

Party Subpoenaed: John Case (WBBM-TV reporter)

Material Subpoenaed: All tapes of the ringing of the bells 
at St. Francis Cathedral

Nature of Case: Civil action



AI-96

Place: Chicago, Illinois

Date: For appearance on January 8, 1971

Name of Case: State of Illinois v. James Corbett

Court: Circuit Court of Cook County—State Criminal

By Whom Subpoenaed: Defendant

Party Subpoenaed: Mr. Lemon—WMAQ-TV, Mr. 
Hanlan—WGN-TV & Chicago Tribune, Daily News, 
Sun-Times, CBS et al.

Material Subpoenaed: All films in any way relating to the 
crime charged against defendant and co-defendants; all 
editorials and stories

Nature of Case: Criminal prosecution.



AI-97

Place: Los Angeles, California

Date: January 22, 1971

Name of Case: Ralph Ramirez, et al. v. Sgt. Joe Cehallos, 
et al.

Court: U. S. District for Central District of California

By Whom Subpoenaed: Plaintiffs

Party Subpoenaed: Robert Mulholland—News Director 
KNBC-TV

Material Subpoenaed: All mechanical reproductions of any 
kind obtained on January 9, 1971 of the line of March 
to Parker Center and the rally and demonstration spon­
sored by the Chicano Moratorium Committee and the 
Peace Action Council at and near Parker Center

Nature of Case: Civil Rights Action by demonstrators 
against Police officers



AI-98

Place: Los Angeles, California

Date: January 29, 1971

Name of Case: Ramires, et al. v. Sgt. Joe Ceballos, et al.

Co^irt: U. S. District Court for Central District of Cali­
fornia

By Whom Subpoenaed: Plaintiffs

Party Subpoenaed: Irwin Savchek—Coordinator, KNBC- 
TV News

Material Subpoenaed: All mechanical reproductions of 
demonstration of January 9, 1971 by Chicano at Parker 
Center and all reproductions, whether broadcast or not, 
obtained on January 29, 30, 31, 1971 of march through 
Los Angeles County to Belvedere Park and rally spon­
sored by Chicano Moratorium

Nature of Case: Civil Rights Action by demonstrators 
against police officers



AI-99

Place: Los Angeles, California

Date: January 29, 1971

Name of Case: Ramirez, et al. v. Ceballos, et al.

Court: U. S. District Court of the Central District of 
California

By Whom Subpoenaed: Plaintiff

Party Subpoenaed: John Harris, Bureau Chief—CBS- 
TV

Material Subpoenaed: Any and all photographs, motion 
picture film, or mechanical reproduction of any kind, 
whether or not aired, obtained January 9, 1971, of the 
line of march to Parker Center and the rally and 
demonstration sponsored by the Chicano Moratorium 
Committee and the Peace Action Council at and near 
Parker Center; and any and all photographs, motion 
picture film, news film, or mechanical reproduction of 
any kind, whether or not aired, obtained January 29, 
30, 31, 1971 of the line of march through Los Angeles 
County to Belvedere Park and the rally and demon­
stration sponsored by the Chicano Moratorium Com­
mittee and other groups

Nature of Case: Civil action



Al-lOO

Place: New York City

Date: February 1, 1971

Name of Case: People v. Alice Crimmins

Court: Supreme Court, New York

By Whom Subpoenaed: Prosecution

Party Subpoenaed: CBS, Inc.

Material Subpoenaed: All recordings concerning the De­
fendant as produced on CBS Radio on Sunday, January 
24, 1971 at approximately 3:45 EST

Nature of Case: Criminal prosecution



AI-101

Place: New York City 

Date: February 11, 1971 

Name of Case: People v. Jose Dias 

Court: Supreme Court, County of Kings 

By Whom Subpoenaed: Defendant

Party Subpoenaed: Columbia Broadcasting System Tele­
vision Network

Material Subpoenaed: Script or any other document per­
taining to the Carol B urnett  S how  of January 5, 
1970

Nature of Case: Criminal prosecution



AI-102

Place: New York City

Date: February 26, 1971

Name of Case: The State of New York, ex rel. Olga 
Scarpetta on behalf of Baby Scarpetta v. Spence-Chapin 
Adoption Service

Court: Supreme Court, County of New York

By Whom Subpoenaed: Special Counsel for Amicus Curiae 
(Adoptive Parents)

Party Subpoenaed: Columbia Broadcasting System, Inc.

Material Subpoenaed: Television news interview between 
child psychologist and CBS News correspondent broad­
cast between January 20, 1971 and February 25, 1971

Nature of Case: Child adoption



AI-103

Place: Providence, Rhode Island

Date: March 11, 1971

Name of Case: State of Rhode Island v. Raymond L. S. 
Patriarca

Court: Superior Court, Providence, Rhode Island

By Whom Subpoenaed: Prosecution

Party Subpoenaed: CBS

Material Subpoenaed: All scripts, radio, tapes, television 
tapes, and other materials of any nature and description 
whatsoever concerning Patriarca, Israel, DeSimone, 
organized crime, the Mafia and the Cosa Nostra used 
by (CBS) in any way whatsoever between January 1, 
1970, and March 12, 1971

Nature of Case: Criminal prosecution



AI-104

Place: New York City 

Date: March 15, 1971

Name of Case: Pamela Brooks, infant, et al. v. The City 
of New York

Court: Supreme Court, County of Kings

By Whom Subpoenaed: Plaintiff

Party Subpoenaed: Supreme Court, County of Kings

Material Subpoenaed: All films taken of certain premises 
showing rat infestation and rat bites to an infant

Nature of Case: Civil action



AI-IOS

Place: New York City

Date: March 24, 1971

Name of Case: U. S. v. David R. Poindexter

Court: U. S. D. C., Southern District of New York

By Whom Subpoenaed: Prosecutor

Party Subpoenaed: National Broadcasting Company (gen­
erally)

Material Subpoenaed: Transcripts of audio portions of any 
broadcasts, or news broadcasts, concerning Angela 
Davis for the period from August 15th to August 22nd, 
1970

Nature of Case: Criminal prosecution—Angela Davis



AI-106

Place: New York City 

Date: March 24, 1971

Name of Case: U. S. v. David Rudolph Poindexter

Court: U. S. District Court, Southern District of New 
York

By Whom Subpoenaed: Prosecution (U. S. Attorney)

Party Subpoenaed: Columbia Broadcasting System

Material Subpoenaed: Transcripts of audio portions of any 
broadcasts, or news broadcasts concerning Angela 
Davis for the period from August 15 to August 22, 
1970

Nature of Case: Criminal prosecution



AI-107

Place: New York City 

Date: April 5, 1971

Name of Case: State of New York v. Lumumba Shakur 
et al.

Court: Supreme Court of New York, New York County 

By Whom Subpoenaed: Defendants

Party Subpoenaed: National Broadcasting Company. New 
York

Material Subpoenaed:

All writings, tapes, etc. relating to

A) alleged explosion at Queens Bd. of Ed., Jan. 
17, 1969, 9:30 P. M.;

B) alleged explosion at 44 Precinct, Jan. 17, 1969, 
9:10 P.M.;

C) alleged gunfight between police and Panthers— 
Jan. 17, 1969, 9 P. M.;

D) alleged finding 5 sticks of dynamite at 25th 
Precinct Station;

E) questioning of Defendant Joan Bird at 34th 
Precinct from 10 P. M .;

F) the arraignment of Defendant Joan Bird 

Nature of Case: Black Panther criminal prosecution



AI-108

Place: New York City

Date: April 5, 1971

Name of Case: People v. Sciavarreo

Court: Supreme Court, Criminal Term, Queens County

By Whom Subpoenaed: Defendant

Party Subpoenaed: Columbia Broadcasting System

Material Subpoenaed: Programming record of January 
24, 1970 of Channel 2 for the New York area from 
6 P.M. to 9 P.M., including the exact time of the Globe­
trotters Basketball Program as broadcast

Nature of Case: Criminal prosecution



AI-109

Place: New York City 

Date: April 12, 1971

Name of Case: People of the State of New York v.
Lumumba Abdul Shakur, et al. (The Black Panther 13)

Court: Supreme Court of the State of New York 

By Whom Subpoenaed: Defendants 

Party Subpoenaed: CBS TV and Radio

Material Subpoenaed: Any writing, video tapes, notes,
memorandum, magnetic or other sound or film record­
ings which depict, record or in any way relate to :

1. The alleged explosion at the Queens Board of Edu­
cation on Jan. 17, 1969 at approx. 9:30 P.M.;

2. The alleged explosion at the 44th police precinct, 
Bronx, N. Y., on January 17, 1969 at approx. 9:10 
P. M., including any films or photographs of the al­
leged bomb location and damage;

3. The alleged exchange of gunfire between police and 
alleged Black Panthers or Negroes, including Joan 
Bird, at about 165-185th Street and the Harlem 
River Drive on Jan. 17, 1969 at 9:00 P.M.

4. The alleged discovery of five sticks of dynamite at 
the 24th police precinct (100th Street Station) at 
about 11:30 A. M. on January 19, 1969, by Patrol­
man John Amsterdam, and any interview with said 
officer;



AI-110

5. The questioning of Joan Bird at the 34th Police 
Pet. (Wadsworth Ave. Station) from 10:00 P. M. 
Jan. 17, 1969 to 12:00 Noon Jan. 18, 1969, and any 
interviews conducted thereat concerning (2) and 
(3) above, with Roland McKenzie, Louis Scorzello, 
or other police officials;

6. The arraignment of Joan Bird and two others at 
100 Centre Street, N. Y., N. Y., at about 7 P. M. 
on Jan. 18, 1969

Nature of Case: Criminal prosecution



AI-111

Place: Philadelphia, Pennsylvania

Date: April 13, 1971

Name of Case: U. S. v. John Doe

Court: U. S. District Court for the Middle District of 
Pennsylvania

By Whom Subpoenaed: Prosecution

Party Subpoenaed: Barry Nemcoff, News Director 
WCAU-TV

Material Subpoenaed: Any and all records pertaining to 
a news conference involving William Davidson on or 
about January 19, 1971, including videotape or any 
other recording

Nature of Case: Criminal prosecution



AI-112

Place: St. Louis, Missouri 

Date: April 22, 1971

Name of Case: Monsanto Company v. Port of St. Louis 
Investments^ Inc., et al.

Court: U. S. District Court for the Eastern District of 
Missouri

By Whom Subpoenaed: Plaintiff

Party Subpoenaed: Cliff James, KMOX-TV

Material Subpoenaed: Films or photographs taken by 
KMOX News on June 28, 29, 1969, relating to collision 
between a riverboat and a pier on the Mississippi River

Nature of Case: Civil action



AI-113

Place: St. Louis, Missouri 

Date: April 22, 1971

Name of Case: Monsanto Company v. Port of St. Louis 
Investments, Inc., et al.

Court: U. S. District Court for the Eastern District of 
Missouri

By Whom Subpoenaed: Plaintiff

Party Subpoenaed: Custodian of Records, KMOX-TV

Material Subpoenaed: Station logs and records for June 
28, 1969 containing weather warnings of any type 

broadcast for the period 4:00 P.M., C. D. T. through 
and including 11:59 P.M., C. D. T.

Nature of Case: Civil action



AI-114

Place: Los Angeles, California 

Date: April 26, 1971

Name of Case: State of California v. Albert Torres, et al.

Court: Los Angeles Municipal Court—Criminal

By Whom Subpoenaed: Defendants

Party Subpoenaed: Managers of KNBC, KABC, etc.

Material Subpoenaed: Films, unedited—with cameras to 
show them—of January 9, 1971 Chicano Moratorium 
March to Parker Center from 1 P. M. to 6 P. M.

Nature of Case: Demonstration—Criminal prosecution



AI-115

Place: St. Louis, Missouri

Date: April 26, 1971

Name of Case: Department of Public Works & Buildings, 
etc. V. Faye Lucille Nance^ Catholic Diocese of Belle­
ville

Court: Circuit Court of County of St. Clair, State of Illi­
nois

By Whom Subpoenaed: Plaintiff (State’s Attorney)

Party Subpoenaed: Gordon French and Robert Hardy, 
KMOX (TV and Radio)

Material Subpoenaed: Interview film and sound recordings 
of the Most Reverend Albert R. Zuroweste, Bishop of 
the Roman Catholic Diocese of Belleville, telecast by 
Station KMOX-TV, St. Louis, Missouri, at its 5:30 
P .M . ,  April 25, 1971 newscast

Nature of Case: Condemnation Proceeding



AI-116

Place: New York City

Date: May 11, 1971

Name of Case: People of the State of New York vs. Josea 
L. Williams

Court: Criminal Court of the State of New York

By Whom Subpoenaed: Defendant

Party Subpoenaed: Columbia Broadcasting System, Inc.

Material Subpoenaed: All audio records and any events 
occurring at, in or near St. Patrick’s Cathedral, New 
York City on April 4, 1971 in the forenoon, which re­
ports have been broadcast over public media stations— 
WCBS-TV and/or WCBS Radio.

Nature of Case: Criminal prosecution



AI-117

Place: New York City

Date: For appearance on May 12, 1971 (Subpoena un­
dated)

Name of Case: State of New York v. /. L. Williams

Court: Criminal Court of the City of New York

By Whom Subpoenaed: Defendant

Party Subpoenaed: National Broadcasting Company

Material Subpoenaed: All records of any events occurring 
at, in, or near Saint Patrick’s Cathedral on April 4, 
1971 in New York City in the forenoon, which records 
have been broadcast over public media

Nature of Case: Demonstration—Criminal prosecution



AI-118

Place: Washington, D. C.

Date: May 17, 1971

Name of Case: U. S. v. Emily Ann Roberts, et al.

Court: Superior Court, District of Columbia

By Whom Subpoenaed: Defendant

Party Subpoenaed: Michael Stanley, Columbia Broad­
casting System

Material Subpoenaed: Stanley was subpoenaed as a wit­
ness to testify as to matters he had witnessed at a dem­
onstration at the U. S. Courthouse Building

Nature of Case: Criminal prosecution



AI-119

Place: Newark, New Jersey 

Date: May 18, 1971

Name of Case: Deborah Jackson v. City of Newark 

Court: Superior Court of New Jersey, Essex County 

By Whom Subpoenaed: Defendant (Corporation Counsel) 

Party Subpoenaed: WCBS-TV

Material Subpoenaed: Developed television film showing 
racial disturbance in City of Newark, July 14, 1967

Nature of Case: Civil action



AI-120

Place: Canandaigua, New York 

Date: May 20, 1971

Name of Case: State of New York v. Davis and Krause

Court: Supreme Court, County of Ontario

By Whom Subpoenaed: Defense

Party Subpoenaed: Columbia Broadcasting System

Material Subpoenaed: Any and all records, materials, tape 
recordings, still and motion picture films, video tapes, 
including outtakes and/or any and all notes, exhibits 
and materials, in any way evidencing ahd/or pertaining 
and relating to Thomas Tongyai, also known as Tommy 
the Traveler, and/or fire bombings on the Hobart 
College campus, and/or drug use on the Hobart College 
campus, and/or political activities on the Hobart College 
campus, and/or disorders occurring on said campus in 
June of 1970 and/or in any way relating to Hobart Col­
lege, its student body and/or its students

NaUire of Case: Criminal prosecution



AI-121

Place: New York City 

Date: May 27, 1971

Name of Case: Federal Grand Jury Investigation of Dem­
onstration by Italian-American Civil Rights League

Court: U. S. District for the Eastern District of New York

By Whom Subpoenaed: Prosecution (U. S. Attorney)

Party Subpoenaed: Custodian of News Film, WCBS-TV

Material Subpoenaed: Newsreels of news item entitled 
“The Italian-American Clash” dated February 25, 1971, 
as narrated by Chris Borgen

Nature of Case: Grand Jury investigation



AI-122

Place: New York City

Date: June 23, 1971

Name of Case: Police Corruption Investigation

Court: City of New York Commission to Investigate Alle­
gations of Police Corruption and the City’s Anti-Cor­
ruption Procedures (Knapp Commission)

By Whom Subpoenaed: The Commission

Party Subpoenaed: Radio Station WCBS

Material Subpoenaed: Taped script of the interview of 
Police Commissioner Murphy of the City of New York 
as broadcast on WCBS Radio, May 21, 1971 at 6:50 
A. M.

Nature of Case: Investigation of police corruption



AI-123

Place: Quantico, Virginia 

Date: July 8, 1971

Name of Case: U. S. v. Sgt. Jon M. Sweeney, U. S. 
Marine Corps— Court Martial

Court: General Court Martial

By Whom Subpoenaed: Prosecution—U. S. Marine Corps 

Party Subpoenaed: CBS News

Material Subpoenaed: Interview on film as broadcast on 
CBS Evening News on November 27, 1970 between 
Mike Wallace and Sgt. Sweeney

Nature of Case: Military prosecution for defecting in 
Vietnam



AI-124

Place: Quantico, Virginia 

Date: July 26, 1971

Name of Case: U. S. v. Sgt. Jon M. Sweeney, U. S. 
Marine Corps— Court Martial

Court: General Court Martial

By Whom Subpoenaed: Prosecution—U. S. Marine Corps 

Party Subpoenaed: CBS News

Material Subpoenaed: Any and all films taken by CBS in 
an interview between Sweeney and Mike Wallace on or 
about November 1970

Nature of Case: Military prosecution for defecting in 
Vietnam