United States v. Caldwell Brief for Petitioner

    I n t h e

OImjrt nf 'Mnxtth
O ctober T e e m , 1970 

No. 1114

U n ited  S tates  oe A m erica ,

-V.-

E ael  Cald w ell ,

Petitioner f

Respondent.

BRIEF IN OPPOSITION
TO THE PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

J ack  Green berg
J a m es  M. N a b eit , III
C h a rles  S t e p h e n  R alston

10 Columbus Circle, Suite 2030 
New York, New York 10019

W illia m  B e n n e t t  T u r n e r  
1095 Market Street 
San Francisco, California 94103

A n t h o n y  G . A msterdam

Stanford University Law School 
Stanford, California 94305

Attorneys for Respondent



I N D E X

PAGE

Reasons Why the Writ Should Not Be Granted..........  1

CoisrcLusiON .................................................................... 6

T able of A u t h o r it ie s

Cases:
Alderman v. United States, 394 U.S. 165 (1969)..........  5,6
Barenblatt v. United States, 360 U.S. 109 (1959)..........  6
DeGregory v. Attorney General of New Hampshire,

383 U.S. 825 (1966) ................... ................................  6
Gibson v. Florida Legislative Investigation Commit­

tee, 372 U.S. 539 (1963) ............................................  6
Greene v. McElroy, 360 U.S. 474 (1959) ....................... 5
Mapp V. Ohio, 367 U.S. 643 (1961) ................................ 5
Oliphant v. Brotherhood of Locomotive Firemen & 

Enginemen, 359 U.S. 935 (1959) ................................ 8
Parker v. County of Los Angeles, 338 U.S. 327 (1949) 3
Rice V. Sioux City Memorial Park Cemetery, 349 U.S.

70 (1955) ....................................................................  4
Service v. Dulles, 354 U.S. 363 (1957) ........... ........... . 5
Silverthorne Lumber Co. v. United States, 251 U.S.

385 (1920) .................................................................... 5
Thorpe v. Housing Authority, 393 U.S. 268 (1969)..... 5

Other Citations:
New York Times, February 6, 1970 ..............................  3
Rule 24 (1)0.................................................................... 6



I n t h e

Qlmnrt of United
O ctober T e r m , 1970 

No. 1114

U n ited  S tates oe A m erica ,

-v.~

E arl Cald w ell ,

Petitioner,

Respondent.

BRIEF IN OPPOSITION
TO THE PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

Reasons Why the Writ Should Not Be Granted

Respondent respectfully suggests that this case pre­
sents an inopportune occasion for the exercise of the 
certiorari jurisdiction.

1. The decision below is an exceedingly narrow one, 
expressly limited by the Court of Appeals to the circum­
stances of this particular record:

“ . . . [W]e wish to emphasize what must already 
be clear: the rule of this case is a narrow one. It 
is not every news source that is as sensitive as the 
Black Panther Party has been shown to be respecting 
the performance of the ‘establishment’ press or the 
extent to which that performance is open to view. It 
is not every reporter who so uniquely enjoys the trust 
and confidence of his sensitive news source.” {Petition



for a Writ of Certiorari [hereafter cited as Petition'], 
Appendix A, p. 28).

2. Even if the ofBce of certiorari were to resolve particu­
lar controversies, the Government has shown no signifi­
cant need to have the Supreme Court of the United States 
resolve this one. The Government says that it does not 
contest the protective order given respondent by the Dis­
trict Court, which excuses him from revealing confidential 
information that he received as a New York Times re­
porter. {Petition, p. 6.) But, as the Court of Appeals noted, 
it is factually undisputed upon this record that respondent 
knows nothing unpublished about the Black Panther Party 
other than what he was told in confidence as a Times 
reporter, and “there is nothing to which he could testify 
(beyond that which he has already made public and for 
which, therefore, his appearance is unnecessary) that is 
not protected by the District Court’s order.” {Petition, 
Appendix A, p. 26.) If this is so—“and the Government 
apparently has not believed it necessary to dispute it” 
(Petition, Appendix A, p. 26)— then the Government is 
asking this Court for nothing more useful to it than an 
advisory opinion. If the Government now seeks to dispute 
what it did not dispute below, the proper place to do so 
is in the District Court, as the Court of Appeals opinion 
plainly permits. {See Petition, Appendix A, pp. 26, 28.)

3. The same considerations which led the Court of Ap­
peals to decide this case on a narrow footing counsel 
against the allowance of certiorari:

“ . . . The courts can learn much about the problems 
in this area as they gain more experience in dealing 
with them. For the present we lack the omniscience to 
spell out the details of the Government’s burden or 
the type of proceeding that would accommodate efforts



to meet that burden. The fashioning of specific rules 
and procedures appropriate to the particular case can 
better be left to the District Court under its retained 
jurisdiction.” {Petition, Appendix A, pp. 27-28.)

The decision of the court below is the first to deal with 
the vexing and difficult First Amendment problems pre­
sented by grand jury subpoenas addressed to newsmen. 
If those problems continue to be of practical importance, 
this Court can best confront them after more than one 
lower court has grappled with them on more than one 
record, in such a fashion that the nature of the problems 
is better exposed and the Court may have the benefit of 
a body of judicial reasoning upon them. Cf., OUpJiant v. 
Brotherhood of Locomotive Firemen S  Enginemen, 359 
U.S. 935 (1959). If the problems do not persist, then an 
exercise of jurisdiction to resolve them in the present case 
would depart needlessly from “[t]he best teaching of this 
Court’s experience . . . not to entertain constitutional 
questions in advance of the strictest necessity.” Parher v. 
County of Los Angeles, 338 U.S. 327, 333 (1949).

4. And there is reason to believe that they may not per­
sist. The problems became acute early in 1970, as the 
result of a number of subpoenas issued to newsmen by 
federal grand juries investigating certain militant groups. 
See the press release issued by Attorney General John N. 
Mitchell, reprinted in the New Yorh Times, February 6, 
1970, p. 40, col. 4. The Government has since reviewed and 
revised its policies relating to such subpoenas, and has 
announced guidelines under which subpoenas like the one 
addressed to respondent Caldwell will ordinarily not be 
issued. (See Petition, Appendix G, pp. 34-36.) In its peti­
tion for certiorari, the United States treats these guide­
lines as though they concerned only the specific inquiries



that might be made of a subpoenaed newsman—inquiries, 
that is, relating to “information that he has received as a 
matter of professional confidence.” {Petition, p. 6.) This 
is puzzling, since the guidelines themselves plainly say— 
as does the decision below—that no subpoena may be issued 
to a newsman at all in such a case as Mr. Caldwell’s. (See 
Petition Appendix C, pavas. Fourth, Fifth (A), (B), (C).)* 
In any event, the promulgation of the guidelines suggests 
that the Caldwell issue is unlikely to arise again, at least 
in its present form; that the constitutional question which 
the Government seeks to have this Court decide may well 
be academic; and that the case is only of “isolated signifi­
cance.” Bice V. Sioux City Memorial Park Cemetery, 349 
U.S. 70, 76 (1959), even though “abstractly considered, it 
may present an intellectually interesting and solid prob­
lem” {Id. at 74).

5. Finally, there is considerable doubt that the Court 
could reach the constitutional issue raised by the Govern­
ment in this case, for two reasons:

First, as we have just said, the subpoena to Mr. Cald­
well plainly does not comply with the “Guidelines for Sub­
poenas to the News Media,” issued by the Department of 
Justice on September 2, 1970. {Petition, Appendix C, pp. 
34-36.) It is unclear why the Government has not applied

* It is clear that the decision to issue the subpoena in this case 
violated each and every provision of the Attorney General’s guide­
lines. E.g., there was no attempt by the Government in negotia­
tion to “make clear what its needs” were in obtaining information 
from Mr. Caldwell {Petition, Appendix C, p. 35, para. Third) ; 
no authorization was obtained from the Attorney General {Id., 
para. Fourth) ; as far as it appears the articles of Mr. Caldwell 
were used as the “spring board” for the investigation {Id., para. 
Fifth (A)) ; no showing was made that the information sought was 
essential to the investigation or that it could not have been ob­
tained from non-press sources {Id., (B) and (C)); and the sub­
poena was not limited as to scope or time {Id., p. 36, (G)).



those guidelines to “move to quash the subpoena” {Id., at 
p. 35, para. Fourth) in Mr. Caldwell’s case. Probably, the 
explanation is that the subpoena was served on Mr. Cald­
well on May 22, 1970, three months before promulgation 
of the guidelines. But in view of the twin principles that 
“regulations validly prescribed by a government admin­
istrator are binding upon him as well as the citizen,” 
Service v. Dulles, 354 U.S. 363, 372 (1957), and that “an 
appellate court must apply the law in effect at the time 
it renders its decision,” including any legal “change . . 
made by an administrative agency,” Thorpe v. Housing 
Authority, 393 U.S. 268, 281, 282 (1969), any decision of 
the First Amendment question by this Court would ap­
pear to be unlikely, consistently with “the Court’s tradi­
tional and wise rule of not reaching constitutional issues 
unnecessarily or prematurely.” Mr. Justice Harlan, con­
curring, in Greene, v. McElroy, 360 U.S. 474, 509 (1959), 
and cases cited.

Second, there is an alternative ground for affirmance of 
the decision of the Court of Appeals that “presents a Con­
stitutional question which is both simpler and less far- 
reaching than the question” which the Government seeks 
to have the Court decide. Cf. Mapp v. Ohio, 367 U.S. 643, 
675-676 (1961) (dissenting opinion). Respondent Caldwell 
contended in both courts below that he was not obliged to 
respond to the grand jury subpoena served upon him be­
cause it was the product of unconstitutional electronic 
eavesdropping by the Government upon his interviews with 
Black Panther Party members. The District Court held 
that a person subpoenaed to appear before a grand jury 
has no standing to challenge the subpoena on this ground; 
and the Court of Appeals did not reach the issue. {Petition, 
Appendix A, pp. 28-29.) But the issue seems a relatively 
easy one in view of Silverthorne Lumber Company v. 
United States, 251 U.S. 385 (1920), and Alderman v. United



States, 394 U.S. 165, 177 (1969); and we respectfully sug­
gest that this Court would not likely pass it over to reach 
a First Amendment issue—particularly one of the most 
intractable sort. See, e.g., Barenblatt v. United States, 
360 U.S. 109 (1959); Gibson v. Florida Legislative Investi­
gation Committee, 372 U.S. 539 (1963); DeGregory v. 
Attorney General of New Hampshire, 383 U.S. 825 (1966).

CONCLUSION

The petition for certiorari should be denied.* 

Respectfully submitted.

J ack  G beek beeg
J am es M. N a b eit , III
C h a rles  S t e p h e n  R alston

10' Columbus Circle, Suite 2030 
New York, New York 10019

W illia m  B e n n e t t  T u r n e r  
1095 Market Street 
San Francisco, California 94103

A n t h o n y  G. A msterdam

Stanford University Law School 
Stanford, California 94305

Attorneys for Respondent

* The petition for certiorari appears to be principally addressed 
to urging that the decision below is wrong. In limiting this brief 
in opposition to a statement of the “ground [s] why the cause should 
be reviewed by this court” (Rule 24 (1)0), we have not thought 
it appropriate to take issue with the Government on the merits. 
However, we note that the Government’s substantive argument 
(Petition, pp. 7-9), which mentions the First Amendment once— 
as an aside—hardly does justice to the issues in the case or to 
the careful (and, we think, plainly correct) decision of the Court 
of Appeals.



MEILEN PRESS IN C  — N. Y. C. 219