Freedom of Press Issues to be Decided by Supreme Court - United States v. Earl Caldwell

    SEPTEMBER 24, 1971 

FREEDOM OF PRESS ISSUES TO BE DECIDED BY SUPREME COURT 

BACKGROUND 

UNITED STATES v. EARL CALDWELL 

On Monday, September 20, the NAACP Legal Defense and Edu- 

cational Fund, Inc. (LDF) filed its final brief in the U.S. 

Supreme Court in the case of the United States v. Earl Caldwell, 

challenging the absolute right of federal grand juries to subpoena 

newsmen to testify during their investigations. 

LDF attorneys contend that such unbridled grand jury subpoena 

power can and does directly impinge upon freedom of the press. 

They have asked the high court to uphold the decision of the U.S. 

Court of Appeals for the Ninth Circuit which ruled that freedom 

of the press is in jeopardy if reporters have no recourse but to 

testify in secret grand jury hearings about their sources of news. 

A favorable ruling for Earl Caldwell, a black New York Times 

reporter, hinges upon whether the high court agrees that freedom 

of the press, as guaranteed by the First Amendment, prohibits the 

government from interfering with collection -- as well as dis- 

semination -- of news. Since the Supreme Court has never before 

addressed itself to this question, the decision will likely set 

an important precedent. 

Earl Caldwell's involvement with the government began when 

two consecutive federal grand juries subpoenaed him (on February 2 

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NAACP Legal Defense and Education Fund, Inc. | 10 Columbus Circle | New York, N.Y. 10019 | (212) 586-8397 

William T. Coleman, Jr. - President 
Jack Greenberg - Director-Counsel 



BACKGROUND - FREEDOM OF PRESS PAGE TWO 

and May 22, 1970). to testify about the activities of the Black 

Panther Party. Their interest in Caldwell centered on knowledge 

he acquired as a reporter specializing in coverage of dissident 

and militant groups, including the Panthers. 

Believing that an appearance before the grand jury would 

ruin his credibility and relationship with members of the Panther 

Party, and ultimately destroy his ability to gather news, Caldwell 

brought these claims to district court and asserted his refusal 

to obey the subpoenas. 

The decision of that court required Caldwell to appear before 

the jury, but protected him from divulging information he received 

in confidence, i.e., information not for publication, as well as 

information concerning his sources of news. 

Caldwell, unhappy with this decision, appealed, and the Ninth 

Circuit upheld the protective order of the lower court. However, 

it further concluded that the nominal benefits of any non-confi- 

dential disclosures Caldwell might make to the grand jury could 

not be reconciled against the probable harm to Caldwell personally 

or to the American public if such dissident and militant news 

sources became alienated from the press through fear of government 

investigation and reprisal. Thus, it freed Caldwell from any 

responsibility to testify before the grand jury. 

Now in the Supreme Court, the government claims that federal 

grand juries have always had an absolute right to subpoena any 

person in order to conduct their investigations; that reporters 

subpoenaed in the past have never claimed immunity from such in- 

vestigations. It also alleges that the First Amendment simply 

restrains government from interfering with dissemination -- as 

Opposed to collection -- of news and has no bearing on this case. 

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BACKGROUND - FREEDOM OF PRESS PAGE THREE 

To counter these claims the LDF brief notes that there have 

been numerous Supreme Court rulings which have tempered the 

power of government to insure constitutional rights; that the 

primary reason immunity has not been sought before is because the 

trend to subpoena newsmen has only recently come into wide use; 

that "freedom of the press to gather the news is the factual 

precondition of freedom of the press to disseminate the news, 

and freedom of the public to receive it." 

At this point, the LDF brief takes a direction ignored in 

the government brief, and presents its main argument: that grand 

juries' unbridled power to subpoena the press does, in fact, 

jeopardize freedom of the press when it threatens to extinguish 

sensitive and important sources of news; that only when government 

can demonstrate an overriding national interest should its 

concerns outweigh the rights of citizens to a free and informed 

press. 

To stress the importance of confidential relationships 

between newsmen and their sources, some 19 well-known newsmen 

have filed affidavits, now part of the record in this case. 

Correspondents like Walter Cronkite and Eric Sevareid of CBS, 

Gil Noble and Timothy Knight of ABC, staff reporters for The New 

York Times and Newsweek have attested to their fears that without 

some reasonable assurances of immunity, many of the most important 

sources of news -- from militant political groups like the Panthers 

to whistle-blowers in government -- will soon dry up. The LDF 

brief, as well as amicus briefs filed by several news organizations, 

point out specific examples where the ability of the press to 

gather news has already been seriously impaired by the use or fear 

of government's power of subpoena upon the press. 

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For further information contact: Sandy O'Gorman (212) 586-8397