United States v. Caldwell Brief for Petitioner
Public Court Documents
July 31, 1971
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Brief Collection, LDF Court Filings. United States v. Caldwell Brief for Petitioner, 1971. c5e1965d-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ef7e1356-b231-42c4-b82b-d720999ad9e2/united-states-v-caldwell-brief-for-petitioner. Accessed April 27, 2025.
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N o. 70-57
Jit to of to litod states
OOTOBEB I ’erm, 1971
U nited States OS’ A merica, petitioner
Earl Caldweej^
OW W R IT OF C m T lO R A R I TO TMB UNITED STATES
COURT OF APPEARS FOR THE N IN TH CIRCUIT
BEIEl FOR THE UNITED STATES
EBWIN N. GEISWOM),
SoUoitor Qmeml,
WII/L W IlioN,
Assistant Attorney Cfmer<d,
WM. BRADFORD REYNOLDS,
Assistmt to the SoUoitor Qmeml,
BEATRICE ROSENBERG,
SIDNEY Ht. GLAZER, >
Attorneys,
Department of Justioe,
Washington, D.G. S0SSO.
I N D E X
Bags
Opinions below___________________________ 1
Jurisdiction______________________________ 1
Question presented________________________ 1
Constitutional provisions involved____________ 2
Statement_______________________________ 2
Summary of argument_____________________ 8
Argument:
I. Introduction______________________ 11
II. Requiring a newsman to appear before a
grand jury pursuant to a subpoena which
has been modified by court order to pro
tect confidential associations and private
communications does not violate the
freedom of the press guaranteed by the
Fh’st Amendment_________________ 16
A. The nature of the claimed privi
lege,_____________________ 16
B. The effect of the subpoena_____ 22
C. The proper balance___________ 34
D. The compelling need test______ 42
Conclusion___________.----------------------------- 48
Appendix------------------ 49
CITATIONS
Cases:
Alderman v. United States, 394 U.S. 165____ 5
American Communications Association v.
Douds, 339 U.S. 382__________________ 30
Aptheker v. Secretary of State, 378 U.S. 500__ 26
A Quantity of Copies of Books v. Kansas, 378
U.S. 205___________________________ 26
O)
II
Oases—Continued
Ashwander v. Tennessee Valley Authority, 297 page
U.S. 288___________________________ 1 1
Associated Press v. United States, 326 U.S. 1__ 17
Baggett v. Bullitt, 377 U.S. 360___________ 26, 28
BarenhlattY. United States, 360 U.S. 109___ 30, 32, 40
Bates V. City of Little Rock, 361 U.S. 516____30, 32
Beckley Newspapers Corp. v. Hanks, 389 U.S.
81________________________________ 15
Blair v. United States, 250 U.S. 273_______ 35,
36, 37, 38, 43
Blau V. United States, 340 U.S. 332________ 39
Boyle V. Landry, 401 U.S. 77__________ __ 25, 29
Branzhurg v. Meigs, Franklin Cir. Ct., Ky,
decided January 22, 1971______________ 15
Brown Y. Walker, 161 U.S. 591___________ 37
Caldwell v. United States, C.A. 9, No. 25802,
decided May 12 , 1970________________ 6,12
Cameron v. Johnson, 390 U.S. 611_________ 22
Chaplinsky v. New Hampshire, 315 U.S. 568._ 46
Coates V. City of Cincinnati, No. 117, October
Term 1970, decided June 1, 1971________22, 26
Cobbledick v. United States, 309 U.S. 323____ 44
Communist Party of the United States v. Sub
versive Activities Control Board, 367 U.S. 1__ 30
Connolly v. General Construction Co., 269 U.S.
385_______________________________ 23
Costello V. United States, 350 U.S. 359_ _ 10, 34, 35, 44
DeGregory v. Attorney General of New Hamp
shire, 383 U.S. 825___________________ 32
DeJonge v. Oregon, 299 U.S. 353__________ 45
Dennis v. United States, 384 U.S. 855______ 36
DiBella v. United States, 369 U.S. 121______ 44
Dombrowski v. Pfister, 380 U.S. 479_______ 22,
24, 25, 26, 29, 31
Elfbrandt v. Russell, 384 U.S. 11__________ 31, 34
Freedman v. Maryland, 380 U.S. 51_______ 26
Ill
Cases—Continued
Garland v. Torre, 259 F, 2d 545, certiorari page
denied, 358 U.S. 910_________________ 12, 14
Gibson v. Florida Legislative Investigation
Committee, 372 U.S. 539_______________30, 32
Goodfader’s Appeal, In re, 367 P. 2d 472_____13, 15
Goodman v. United States, 108 F. 2d 516_____ 35
Grosjean v. American Press Co., 297 U.S. 233__ 15, 18
Hale V. Henkel, 201 U.S. 43______________35, 43
Hannah v. Larche, 363 U.S. 420__________ 37, 43
Harrison v. NAACP, 360 U.S. 167________ 22
Hendricks v. United States, 223 U.S. 178___ 43
Herndon v. Lowry, 301 U.S. 242__________ 23
Holt V. United States, 218 U.S. 245________ 44
Jenkins v. McKeithen, 395 U.S. 411______ 35
Kaplan v. United States, 234 F. 2d 345_____ 42
Katz V. United States, 389 U.S. 347________ 39
Keyishian v. Board of Regents, 385 U.S. 589__ 25,
27, 28
Kingsley Book, Inc. v. Brown, 354 U.S. 436__ 29
Kingsley International Pictures Corp. v. Regents
of University of New York, 360 U.S. 684___ 23
Konigsberg v. State Bar, 366 U.S. 36______ 30
Kunz V. New York, 340 U.S. 290__________ 26
Lamont v. Postmaster General, 381 U.S. 301 __ 15, 30
LaRocca v. United States, 337 F. 2d 39_____ 43
Liveright v. Joint Committee, 279 F. Supp.
205_______________________________ 32
Louisiana ex rel. Gremillion v. NAACP, 366
U.S. 293____ 32
Lovell V. Griffin, 303 U.S. 444____________ 15
Mack, In re, 386 Pa. 251, 126 A. 2d 679,
certiorari denied, 352 U.S. 1002-------------- 15
Marchetti v. United States, 390 U.S. 39_____ 41
Marcus v. Search Warrant, 367 U.S. 717---- 28
McGrain v. Daiogherty, 273 U.S. 135------------ 40
IV
Oases—Oontinued
Minor v. United States, 396 U.S. 87_______ 41
Moore v. Ogilvie, 394 U.S. 814____________ 3
NAACP V. Alabama ex ret. Patterson, 357
U.S. 449________ _______________ 15,30,31
NAACP V. Button, 371 U.S. 415_____ 24, 26, 2l’, 29
Near v. Minnesota, 283 U.S. 697__________ 15
New York Times y . Sullivan, 376 U.S. 254__ 15, 33
New York Times Company v. United States,
No. 1873, O.T. 1970, decided June 30,1971.. 15
People V. Dohrn, Grim. No. 69-3808, decided
May 20, 1970_____. . . _______________ 14
Piemonte v. United States, 367 U.S. 556_____ 42
Pittsburgh Plate Glass Company v. United
States, 360 U.S. 395------------------- 10, 35, 36, 42
Poe V. Ullman, 367 U.S, 497________._____ 1 1
Roviaro v. United States, 353 U.S. 53______ 14, 39
Samuels v. Mackell, 401 U.S. 66. _________ 45
Shelton v. Tucker, 364 U.S. 479___________30, 32
Shillitani v. United States, 384 U.S. 364____ 3
Smith V. California, 361 U.S. 147_______ 9, 23, 28
Speiser v. Randall, 357 U.S. 513__________ 29
State V. Buchanan, 250 Ore. 244, 436 P. 2d
729, certiorari denied, 392 U.S. 905._____ 15
Staub V. City of Baxley, 355 U.S. 313______ 26
Stromberg v. California, 283 U.S. 359._____ 23
Sweezy y. New Hampshire, 354 U.S. 234___ 30,
31, 32, 33-34
Talley v. California, 362 U.S. 60__________ 30, 32
Taylor, In re, 193 A. 2d 181____________ 15
Thornhill v. Alabama, 310 U.S. 88_________ 23
Times, Inc. y. Hill, 385 U.S. 374__________ 15
United States v. Amazon Industrial Corp., 55
F. 2d 254__________________________ 36
United States y. Bryan, 339 U.S. 323________ 37
United States y. Freed, No. 345, O.T. 1970,
decided April 5,1971_________________ 41
V
Oases—Continued
United States v. Johnson, 319 U.S. 503__ 34, 35, 36, 46
United States v. Procter & Gamble, 356 U.S.
677--------------------------------------- 10,34,36,42
United States v. Rohel, 389 U.S. 258___ 22, 26, 27, 31
United States v. Rose, 125 F. 2d 617_______ 35
United States v. Rumely, 345 U.S. 41_______ 40
United States v. Ryan, No. 758, decided May
24, 1971----------------------------------------- 12,44
United States v. Socony-Vacuum Oil Company,
310 U.S. 150________________________ 36
United States v. Stone, 429 F. 2d 138________ 37, 43
United States v. The Washington Post Co., No.
1885, O.T. 1970, decided June 30,1971____ 15
United States v. Thomas George, C.A. 6, No.
71-1067, decided June 14, 1971_________ 39
United States v. Tucker, 380 F. 2d 206_______ 14
United States v. Winter, 348 F. 2d 204, cer
tiorari denied, 382 U.S. 955____ 10, 37, 39, 42, 47
Walker v. City of Birmingham, 388 U.S.
307------------------------------------ 9,23,24,30,31
Whitehill v. Elkins, 389 U.S. 54__________ 31
Winters v. United States, 333 U.S. 507_____ 15, 23
Wisconsin v. Knops, Sup. Ct. Wise., State
No. 146, decided February 2,1971_______ 14
Wood V. Georgia, 370 U.S. 375_________ 35, 37, 46
Younger v. Harris, 401 U.S. 37________ 22, 25, 29
Zwickler v. Koota, 389 U.S. 241__________ 25
Constitution, statutes and rule:
U.S. Constitution:
Bill of rights______________________ 15
First Amendment__________________
2, 9, 11, 12, 16, 21, 23, 26, 29, 30, 32-33, 38
39, 40, 45
Fifth Amendment__________ ____ 39 47
18 U.S.C. 871________________________ 3
50 U.S.C. (Supp. IV) 784(c)(1)(D)___ ^____ 26
VI
Constitution, statutes and rule—Continued p̂ge
Ala. Code Recompiled Tit. 7 §370 (1960)___ 13
Alaska Stat. §09.25.150 (1967, 1970 Cum.
Supp.)------------------------------------------- 13
Ariz. Rev. Stat. Ann. §12-2237 (1969 Supp.) _ _ 13
Ark. Stat. Ann. §43-917 (1964)___________ 13
Cal. Evid. Code Ann. §1070 (West 1966)___ 13
Ind. Ann. Stat. §2-1733 (1968)___________ 13
Ky. Rev. Stat. §421.100 (1963)___________ 13
La. Rev. Stat. §45:1451-54 (1970 Cum.
Supp.)-------------------------------------------- 13
Md. Ann. Code Art. 35, §2 (1971)________ 13
Mich. Stat. Ann. §28.945(1) (1954)________ 13
Mont. Rev. Codes Ann. tit. 93, ch. 601-2
(1964)------------------------------------------- 13
Nev. Rev. Stat. §48.087 (1969)____________ 13
N.J. Stat. Ann. tit. 2A, ch. 84A, §2 1, 29
(Supp. 1969)________________________ 13
N.M. Stat. Ann. §20-1-12.1 (1953; 1967
Rev.)__----------------------------------------- 13
N.Y. Civ. Rights Law §79-h (McKinney,
1970)_____________________________ 14
Ohio Rev. Code Ann. §2739.12 (1953)______ 13
Pa. Stat. Ann tit. 68, §330 (1958, 1970 Cum.
Supp.)------------------------------------------- 14
Rule 6(e), F.R. Cr. p__________________ 35
Rule 6(g), F.R. Cr. P __________________ 2
Miscellaneous:
H.R. 7787, 88th Cong., 1st Sess. (1963)____ 13
H.R. 8519, 88th Cong., 1st Sess. (1963)____ 13
S. 1311, 92nd Cong., 1st Sess. (1970)______ 13
S. 1851, 88th Cong., 1st Sess. (1963)_______ 13
Beaver, The Newsman’s Code, the Claim of
Privilege, and Everyman’s Right to Evidence,
47 Ore. L. Rev. 243 (1968)_____________ 28
A. Bickel, The Least Dangerous Branch, 149
(1962)-------------------------------------------- 31
VII
Miscellaneous—Continued
Bird and Mervin, The Newspaper and Society,
567 (1942)_________________________ 33
2 Chafee, Government & Mass Communications,
495_______________________________ 28
ColliQgs, Unconstitutional Uncertainty—An
Appraisal, 40 Cornel L. Q. 195 (1955)__ 24
Comment, Constitutional Protection for the
Newsman’s Work Product, 6 Harv. Civ,
R.-Civ. Lib. L. Rev. 119 (1970)_________ 13
Guest and Stanzler, The Constitutional Argu
ment for Newsmen Concealing Their Sources,
64 Nw. U. L. Rev. 18 (1960)________ 13,15, 28
1 Holdsworth, History of English Law (1927)
322----------------------------------------------- 35
Note, Reporters and Their Sources: The Con
stitutional Right to a Confidential Relation
ship, 80 Yale L. J. 317 (1970)__________ 17, 27
Note, The Chilling Effect in Constitutional Law,
69 Colum. L. Rev. 808________________ 31
Note, The First Amendment Overbreadth Doc
trine, 86 Harv. L. Rev. 844 (1970) __ 23, 24, 27, 31
Note, The Newsman’s Privilege: Protection of
Confidential Associations and Private Com
munications, 4 J. L. Ref. 85 (1970)_____ 13,17
Note, The Void-for-Vagueness Doctrine in the
Supreme Court, 109 U. Pa. L. Rev. 67
(1960)-------------------------------------------- 23,24
Revised Draft of the Proposed Rules of
Evidence for the United States Courts and
Magistrates, Advisory Committee’s Note to
Proposed Rule 501___________________ 33
8 Wigmore, Evidence §2286 (McNaughton
rev. 1961)__________________________ 12
\n ih 0f ih
October Teem , 1971
17o. 70-57
U nited S tates of A merica, petitioner
V.
E arl Caldwell
ON W R IT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE N INTH CIRCUIT
BRIEF FOE THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (A. 114-130) is
reported at 434 E. 2d 1081, The opinion of the district
court (A. 91-93) is reported at 311 P. Supp. 358.
j u r is d ic t io n
The judgment of the court of appeals (A. 131) was
entered on November 16, 1970. The petition for a writ
of certiorari was filed on December 16, 1970; it was
granted on May 3, 1971 (A. 132). The jurisdiction of
this Court rests on 28 U.S.C. 1254(1).
q u e st io n p r e s e n t e d
Whether the First Amendment bars a grand jury
that is investigating possible crimes committed by
(1)
438- 569— 71-
members of an organization from compelling a news
paper reporter, who bas published articles about that
organization, to appear and testify solely about non-
confidential matters relating to the organization.
CONSTITUTIONAL PEOVISIONS INVOLVED
The First Amendment provides in pertinent part as
follows:
Congress shall make no law * * * abridg
ing the freedom of speech, or of the press * * *.
The Fifth Amendment provides in pertinent part
as follows:
hTo person shall be held to answer for a
capital, or otherwise infamous crime, unless on
a presentment or indictment of a Glrand Jury
STATEMENT
On June 5, 1970, the United States District Court
for the FTorthern District of California (A. 111-113)
adjudged respondent, a black reporter for The New
York Times, in civil contempt of court for refusing to
appear as a witness and testify before a federal grand
jury pursuant to a subpoena ad testificandum^ The
court of appeals reversed (A. 114-130).
̂The district court committed respondent to imprisonment
until such time as he might express an intent to testify or until
such time as the term of the grand jury expires, whichever is
earlier. It stayed its order pending final disposition on appeal.
Under Uule 6(g), F.E. Cr. P., no regular grand jiiry may serve
more than 18 months. The grand jury here was impanelled on
May 7, 1970, succeeding a prior grand jury (see p. 6, infra). Its
original term has been extended by court order to October 31,1971;
a further extension of one week, until ISTovember 6, 1971, may
be possible. After that date, however, “the grand jury ceases
to function, the rationale for civil contempt vanishes, and the
On December 3, 1969, an indictment was returned
against David Hilliard, Chief of Staff of the Black
Panther Party, charging him with making threats
against the life of the President of the United States,
in violation of 18 U.S.C. 871f During the preceding
month, Hilliard had stated publicly in a speech given
on November 15, 1969: “We will kill Richard Hixon”
(A. 65, 67). This threat was repeated in the Novem
ber 22, 1969, issue of the weekly periodical. The Black
Panther; it appeared again in the December 27, 1969,
issue, and was reiterated a third time in the Jan
uary 3, 1970, issue (A. 65). Moreover, numerous
public statements of a similar nature were reportedly
being made during the same period by members or
friends of the Black Panther Party in various parts
of the country (A. 66-67).
Coincident with this rash of threats against the life
of the President, an article by respondent about the
Black Panther Party was published on December 14,
1969 in The New York Times (A. 11-16). In that
article, respondent reported, among other things, on
a conversation he had with Hilliard and others at the
Panthers’ headquarters in Berkeley, California. At
contemnor has to be released.” ShUlitani v. United States, 384
U.S. 364, 371-372.
The question remains a live one, however, for the respond
ent can be summoned before another grand jury if the issue
here is resolved against him. Cf. Moore v. Ogilvie, 3§4 U.S. 814.
̂On May 4, 1971, the district court dismissed the indictment
against Hilliard after the government refused to disclose its logs
of an electronic surveillance undertaken to protect itself from
domestic subversion. An appeal from that dismissal is now
pending in the Ninth Circuit. United States v. Hilliard, C.A. 9,
No. 71-1882.
one point, he quoted Hilliard as having made the fol
lowing statement: “We advocate the very direct
overthrow of the Government by way of force and
violence. By picking up guns and moving against it be
cause we recognize it as being oppressive and in recog
nizing that we know that the only solution to it is
armed struggle” (A, 13). The article then continues
with these words: “In their role as the vanguard in a
revolutionary struggle the Panthers have picked up
guns” (ibid.). I t refers to two police raids on Panther
offices in other cities resulting in shooting incidents
and the discovery of caches of weapons, including
high-powered rifles (ibid.).
On February 2, 1970, respondent was served with
a subpoena duces tecum (A. 20), ordering him to ap
pear on February 4 and testify before the federal
grand jury in San Francisco, California; he was
ordered to bring with him notes and tape-recorded in
terviews covering the year 1969, which “reflect[ed]
statements made for publication” by Black Panther
officers and spokesmen “concerning the aims and
purposes * * * and the activities of said organiza
tion” and its members (ibid.). This subpoena, how
ever, was subsequently withdrawn voluntarily by the
government and is not involved in the instant action
(A. 91 note).
Thereafter, on March 16, 1970, the government
caused respondent to be served with a second grand
jury subpoena—this one a subpoena ad testificandum;
with no duces tecum clause (A. 21, 4). The next day,
he and The New York Times Company moved to
quash the subpoena on the ground that the First
Amendment relieved respondent, as a news reporter,
of any obligation to appear before the grand jury.
Alternatively, he requested a protective order prohibit
ing all grand jury interrogation “concerning any con
fidential interviews or information which he had
obtained exclusively by confidential interviews” (A.
4-5).^ This, he asserted, would include all unpublished
interviews with the Panthers; however, he indicated a
willingness to affirm “before the grand jury—or in any
other place the authenticity of qixotations attributed
to Black Panther sources in his published articles”
(A. 6).
Respondent’s position rested essentially on the claim
that his appearance alone at the secret proceedings
would be interpreted by the Black Panthers “ as a pos
sible disclosure of confidences and trusts” that would
cause the “Panthers and other dissident groups” to
refuse to speak to him and “destroy [his] effective
ness as a newspaperman” (A. 19).
The motion was heard upon affidavits and documen
tary evidence on April 3, 1970. On April 8, 1970, the
district court denied the motion to quash and directed
respondent to appear, subject to the following pro
visos ( A. 96) :
(1) That * * * Earl Caldwell * * * shall not
be required to reveal confidential associations,
̂He also contended that the court should conduct an in
quiry, pursuant to Alderman v. United States, 394 U.S. 165, to
determine whether the subpoena was the product of illegal
electronic surveillance (A. 4, 108-109). On this issue, the dis
trict court held (A. 93) that respondent had no standing to
raise such an objection “at this posture of the grand jury
investigation.” The court of appeals did not reach the question
and it is not now before this Court.
6
sources or information received, developed or
maintained by Mm as a professional journalist
in the course of Ms efforts to gather news for
dissemmation to the public through the press or
other news media.
(2) That specifically, without limiting para
graph (1 ), Mr. Caldwell shall not be required
to answer questions concerning statements made
to him or information given to him by members
of the Black Panther Party uMess such state
ments or information were given to him for
publication or public disclosure;
(3) That, to assure the effectuation of this
order, Mr. Caldwell shall be permitted to con
sult with his counsel at any time he wishes dur
ing the course of his appearance before the
grand jury;
The court further stated that it would entertain a
motion for modification of its order “ at any time
upon a showing by the Government of a compelling
and overriding national interest m requiring Mr. Cald
well’s testimony which cannot be served by any alter
native means * * *” (A. 96).^
At the end of the first week in May, the term of the
grand jury that had issued the March 16 subj)oena
expired, and a new grand jury was impanelled on
May 7, 1970. Respondent was served with a new sub-
^Eespondent appealed from this order on April 17, 1970; the
government moved to dismiss that appeal on the ground that
the order was interlocutory and unappealable, and that the
appeal was frivolous and would cause undue interruption of the
grand jury inquirj^ On May 12, 1970, the Ninth Circuit dis
missed the appeal without opinion. Caldwell v. United States,
C.A. 9, No. 25802. See n. 9, infra.
poena ad testificandum on May 22 to appear before
the newly impanelled grand jury, and the district
court denied a motion to quash, reissuing on June 4,
1970, its previous order limiting the scope of the grand
jury’s inquiry (A. 104-105).® On Jime 5, 1970, after
respondent persisted in his refusal to appear before
the grand jury, he was held in civil contempt ( A. 111-
113); ® he appealed to the Court of Appeals for the
Mnth Circuit.
In reversing, the court of appeals agreed with the
district court that the First Amendment accords news
paper reporters a qualified privilege to refuse to
answer questions in response to a grand jury subpo
ena. I t held, however, that because grand jury pro
ceedings are by nature secret, an order limiting the
scope of inquiry did not, ‘‘by itself, adequately pro
tect the First Amendment freedoms at stake in this
area” (A. 124). Finding that respondent had estab
lished a relationship of trust and confidence with the
Black Panthers which rested “ on contmuing reassur
ance” that his handling of news and information has
been discreet, the court reasoned as follows (A. 123) :
This reassurance disappears when the re
porter is called to testify behind closed doors.
The secrecy that surroimds Glrand Jury testi
mony necessarily introduces uncertainty in the
minds of those who fear a betrayal of their con
fidences. These uncertainties are compounded by
® Since the May 22 subpoena was, in substance, an extension
of the March 16 subpoena, we will for convenience refer here
after only to the earlier of the two.
The sentence to an indefinite term of imprisonment, not to
exceed the term of the grand jury then sitting, was stayed
pending appeal (see n. 1 supra).
8
the subtle nature of the journalist-informer re
lation. The demarcation between what is con
fidential and what is for publication is not
sharply drawn and often depends upon the par
ticular context or timing of the use of the
information. Militant groups might very under
standably fear that, under the pressure of
examination before a Grand Jury, the vdtness
may fail to protect their confidences with quite
the same sure judgment he invokes in the
normal course of his professional work.
Accordingly, it held that before respondent could be
ordered to appear ‘the Government must respond by
demonstrating a compelling need for the witness’
presence” (A. 125)."
SUMMABY OF ARGUMENT
This case does not raise the question whether a
newspaperman—like an attorney or a doctor or a
clergyman—can refuse to disclose information that he
has received as a matter of professional confidence.
Rather, the issue here is much narrower: whether a
reporter can refuse to appear and testify before a
grand jury about matters concededly nonconfidential
in nature on the ground that his appearance alone
could jeopardize confidential relationships and thereby
'Judge Jameson, District Judge for the District of Mon
tana, sitting by designation, while concurring in the result,
stated (A. 129) : “Appellant did not have any express con
stitutional right to decline to appear before the grand jury.
This is a duty required of all citizens. ITor has Congress
enacted legislation to accord any type of privilege to a news
reporter. In my opinion the order of the district court could
properly be affirmed, and this would accord with the customary
procedure of requiring a witness to seek a protective order
after appearing before the grand jury” (footnote omitted).
9
have a “cMlling effect” on the freedom of press guar
anteed by the First Amendment.
In safeguarding basic freedoms of speech or press,
this Court has often shifted its focus from the constitu
tional status of a particular complainant’s conduct to
the degree of chill being generated on others. But, this
approach has consistently been conditioned on the
need “to insulate * * * individuals from the 'chilling
effect’ upon exercise of First Amendment free
doms generated by vagueness, overbreadth and un
bridled discretion to limit their exercise” (Walker v.
City of Birmingham, 388 U.S. 307, 345 (Brennan, J.,
dissenting)).
The vices of unconstitutional vagueness or over
breadth are not present in this case. The grand jury
subpoena served on respondent has been modified by
court order to protect him against disclosures of con
fidential associations, sources and information; confi
dential matters relating to his relationship with the
Black Panthers need not be revealed; and he is per
mitted to interrupt his appearance at any time to confer
outside the jury room with his counsel. These precisely
defined guidelines are well within the “stricter standard
of permissible * * * Ytigu^eiiess” (Smithy. California,
361 U.S. 147, 151) that this Court has required to pro
tect against the chill on free speech or press caused by
government regulation that sv/eeps unnecessarily broad.
Hor do they trench on other First Amendment freedoms
by compelling injurious disclosures of confidential
associations.
In these circumstances, it is clear that respondent’s
challenge is not really to the subpoena power as such,
438- 569— 71 3
10
but rather to the fundamental nature of grand jury
proceedings in general—i.e., to the firmly established
policy of grand jury secrecy. That policy has long been
recognized as indispensable to the grand jury’s investi
gative process. I t is “older than our Hation itself”
{Pittshurgli Plate Glass Company v. United States,
360 U.S. 395, 399). Respondent should not be permit
ted to undermine the traditional investigative function
of that body on the ground that his appearance alone
(albeit fully protected) may cause the group under
investigation to stop communicating with him for fear
of a possible betrayal of confidences behind the closed
doors of the jury room. Such fear, in the circum
stances of this ease, is imaginary and insubstantial,
not real and appreciable. I t should not be allowed to
erode the “long-established policy that maintains the
secrecy of the grand jury proceedings” (United States
V. Proctor & Gamble, 356 U.S. 677, 681) and “denude
that ancient body of a substantial right of inquiry”
(United States v. Winter, 348 F. 2d 204, 208 (C.A. 2),
certiorari denied, 382 U.S. 955).
Uor is it appropriate to require the government, as
did the court below, to litigate the question whether
there exists a compelling need for attendance before
permitting enforcement of a grand jury subpoena to
any reporter working in a “sensitive” area. Such liti
gious interruptions of this historic investigative proc
ess have long been discouraged by this Court. The cir
cumstances presented here do not warrant intruding
on this “acquired * * * independence” (Costello v.
United States, 350 U.S. 359, 362) of grand juries by
requiring the government to make a satisfactory show-
11
ing in court of compelling need as a precondition to
calling respondent.
ARGUMENT
I. INTRODUCTION
This case presents only the narrow question stand
ing at the threshold of far broader and intrinsically
more difficult issues relating to the proper scope of a
news reporter’s claim of privilege. I t comes here in a
posture which permits disposition without requiring
this Court to decide the significant constitutional ques
tions now before it in Bransburg v. Hayes, Ho. 70-85,
and in In the Matter of Paul Pappas, No. 79-94.*'
Accordingly, we consider it neither appropriate (cf.
Poe v. Ullman, 367 U.S. 497, 503-504; Ashwander v.
Tennessee Valley Authority, 297 U.S. 288, 345-348
(Brandeis, J., concimfing)), nor essential to the posi
tion we urge here, to include in this brief a broad
discussion of First Amendment rights and their rela
tionship to the ability of the news media to gather and
disseminate news.
Instead, as both our petition for certiorari and
respondent’s reply thereto indicate, the issue in this
case is narrow; the government did not appeal from
that part of the district court’s order that permits
respondent not to testify with respect to confidential
̂The issues as framed in those cases are whetlier a news
reporter can be compelled to disclose before a grand jury confi
dential associations (B ranzburg)or ab̂ rrt, matters seen and heard
by him on the express condition that he would divulge nothing
{Pafpas), without violating the First Amendment guarantee of
freedom of the press. We shall give the Court our views on those
questions in a brief amicus curiae, which we shall file in those cases.
matters.® This Court is thus called upon here to
decide only whether a reporter can refuse to appear
and testify before a grand jury about matters coii-
cededly non-eonfidential in nature on the ground that
his appearance alone could jeopardize confidential
relationships and thereby have a “ chilling elf'eet” on
the freedom of press guaranteed by the First
Amendment.
In urging that this question should be answered
negatively, we note |)Teliniinarily that the confidential
relationship between a newsman and his informant
can claim no protection at common law. 8 Wigmore,
Evidence § 2286 (McNaughton rev. 1961). Moreover,
courts have consistently declined the invitation to
create a common law privilege for newsmen by anal
ogizing the reporter-source relationship to traditional
relationships of attorney-client, doctor-patient and
priest-penitent. See, e.g., Garland v. Torre, 259 P. 2d
545, 550 (C.A. 2), certiorari denied, 358 U.S. 910;
® We do not consider the broader constitutional arguments
foreclosed to us in later proceedings by our decision not to seek
review of the district court order specifically protecting respond
ent from disclosure of any professional confidences unless the
government shows a compelling need therefor. In our view, that
was an unappealable order (cf. United States v. Ryan, Ao. 758,
October Terms, 1970, decided May 24, 1971; and see GaldiveU v.
United States, C.A. 9, No. 25802, decided May 12, 1970, where
the court of appeals refused to entertain respondent's eailier
appeal from that order); moreover, we felt that mandamus was
inappropriate at that time because it would call upon the court of
appeals to decide broad constitutional issues divorced from a con
crete setting. Consequently, we determined that the proper course
was to await respondent’s challenge, if any, to specific questions
during the grand jury proceeding, and I'aise any objections, consti
tutional or otherwise, that we might have to the order of the dis
trict court at that time.
13
In re Goodfader’s Appeal, 367 P. 2d 472 (Sup. Ct.
Hawaii).^" ISTor lias Congress been any more receptive
to the proponents of a newsman’s privilege. Although
federal legislation has been proposed on several occa
sions, no bill has ever emerged from the committee.”
On the other hand, some state legislatures have en
acted statutes protecting newsmen in varying degrees
against compulsory disclosure of confidential news
sources.” In so doing, these states have created a
10 For an illuminatiug discussion of tlie several factors which
have led courts to conclude that such analogies are imperfect,
see Note, The Newmnan-s Privilege: Protection of Coniidential
dissociations and Private Communications. 4 J.L. Reform 85,
89-93 (1970). Compare Guest and Stanzler, The Constitutional
Argument for Newsmen Concealing their Sources, 64 Nw. U. L.
Rev. 18, 26-27 (1969).
” See, e.g., S. 18.51, 88th Cong., 1st Sess. (1963); H.R. 8519,
88tli Cong., 1st Sess. (1963) ; H.R. 7787, 88th Cong., 1st Sess.
(1963) . There is presently pending before the Judiciary Com
mittee another bill which provides for the protection of ne\vs-
nien’s confidential sources and communications. See S. 1311,
92d Cong., 1st Sess. (1970). It has not yet been reported out
of committee.
” Such legislation has bewn passed in fifteen states: 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. Evicl. Code Ann.
§ 1070 (West 1966) ; Ind. Ann. Stat. § 2-1733 (1968) ; Ky. Rev.
Stat. §421.100 (1963); La. Rev. Stat. § 45:1451-54 (1970 Cum.
Supp.) ; Md. Ann. Code Art. 35, § 2 (1971) ; Mich. Stat. Ann. § 28.-
945 (1) (1954); Mont. Rev. Codes Ann. tit. 93. cli. 001-2
(1964) ; Nevada Rev. Stat. §48.087 (1969); N.J. Stat. Ann. tit.
2A, ch. 84A, §21, 29 (Supp. 1969) ; N.M. Stat. Ann. §20-1-12.1
(1953; 1967 Rev.) ; Ohio Rev. Code Ann. §2739.12 (1953). For
a discussion of the differences in the scope of coverage under
these statutes, see Comment, Constitutional Protection for the
Newsman's Work Product, 6 Harv. Civ. R.-Civ. Lib. L. Rev.
119, 121-122 (1970).
More than a dozen other states liave considered and rejected
such legislatioii. See Guest and Stanzler, sv/pra, n. 10, at 20-21.
14
legislative privilege not unlike the common law priv
ilege of the government informer (see Boviaro v.
United States, 353 U.S. 53, 59), which permits the
recipient of information, i.e., the government, to
withhold the informant’s identity to protect ‘‘the
strong public interest in encouraging the free flow of
information to law enforcement officers.” United
States V. Tucker, 380 F, 2d 206, 213 (C.A. 2). Only
two states have passed statutes going ].)eyond the
perimeters of source identification; they have ex
tended the newsman’s privilege to confidential com
munications and, in one instance, to documents
received in confidence.^’’
Until the Islinth Circuit’s decision in the instant
case, the claim that a reporter’s privilege (though
withoiit common law roots and recognized by few
state legislatures) enjoys a constitutional basis in the
First Amendment freedom of the press has, with
one recent exception,“ been uniformly rejected by
federal and state courts. Garland v. Torre, supra;
See N.Y. Civ. Rights Law § 79-h (McKinney 1970) ; Pa.
Stat. Aim. tit. 28, § 330 (1958, 1970 Cum. Supp.). Only the
Pennsylvania statute has been construed to protect documents.
See In re Taylor^ 193 A. 2d 181 (Sup. Ct. Pa.)
A decision by the Cook County Circuit Court, Chicago, Illi
nois, which was rendered while the appeal in the instant case
was pending before the Ninth Circuit, upheld the claim of a
reporter’s privilege not to divulge confidential information on
First Amendment grounds. People v. Dohi'n, Crim. No. 69-3808,
decided May 20, 1970. And see Wisconsin v. Knops, Sup. Ct.
Wise., State No. 146, decided February 2, 1971, which was
announced after the court of appeals decision here and essen
tially agreed with the balancing approach of the Ninth Circuit
but reached a different result. The Enops opinion is reprinted
in our Supplemental Memorandum to the petition for cer
tiorari, No. 70-57.
15
In re Mach, 386 Pa. 251, 126 A. 2d 679, certiorari
denied, 352 U.S. 1002; In re Goodfader’s Appeal,
supra; In re Taylor, supra; State v. Buchanan, 250
Ore. 244, 436 P. 2d 729, certiorari denied, 392 IJ.S.
905; and see Branzhurg v. Meigs, Franklin Cir. Ct.,
Ky, decided January 22, 1971; In the Matter of
Paul Pappas, supra. Moreover, the major premise on
vfhich it is founded—that, in addition to the protected
freedoms to write (New York Times v. Sullivan, 376
U.S. 254; Times, Inc. v. Hill, 385 U.S. 374; Beckley
Newspapers Gorp. v. Hanks, 389 U.S. 81), to publish
(New York Times Company v. United States and
United States v. The Washington Post Company,
Uos. 1873 and 1885, October Term, 1970, decided
June 30, 1971), and to circulate (Winters v. United
States, 333 U.S. 507, 510; Lovell v. Griffin, 303 U.S.
444; Grosjean v. American Press Co., 297 U.S. 233;
Near v. Minnesota, 283 U.S. 697, 713) news, there is
a constitutionally protected right of the press to
gather news—finds little support from statements of
the framers and backers of the Bill of Rights or
from prior decisions by this Court.’'
The opinion in Bramburg v. Meigs appears in the appendix
to the petition for a v/rit of certiorari in Bramburg v. Hayes.,
No. 70-85, at pp. 69-75.
See Guest and Stanzler, surra n. 10, at 30-31.
^^We do not read Lament v. Postmaster General., 381 IT.S.
301, holding that the First Amendment protects the right of
members of the public to receive “communist political propo-
ganda without first having to disclose the identities of the
recipients, as guaranteeing to news reporters a privilege to
receive (or gather) news without later having to disclose the
identities of the sources. Nor do we think the question was
reached in N A AO P v. Alabama ex rel. Patterson, 357 U.S. 449,
462, where the Court held that Alabama could not by state
16
Nevertheless, even if the Court should hold in
Branzburg and Pappas that the First Amendment
freedom of the press covers neAvsgathering in general
and authorizes newsmen to refuse to disclose to grand
juries confidential associations and private communica
tions in particular {supra n. 8), such protection
would not warrant the relief respondent seeks in the
instant case. For, whatever may be the scope of a re
porter’s constitutional privilege, it does not justify his
refusal to appear before a grand jury to testify only
as to matters eoncededly nonconfidential in nature.
n. REQUIRING A NEWSMAN TO APPEAR BEFORE A GRAND
JURY PURSUANT TO A SUBPOENA W H ICH HAS BEEN
MODIFIED BY COURT ORDER TO PROTECT CONFIDENTIAL
ASSOCIATIONS AND PRIVATE COMMUNICATIONS DOES NOT
VIOLATE THE FREEDOM OP TPIB PRESS GUARANTEED BY
THE FIRST AMENDMENT
A . T H E N A T U E E OF T H E CLA IM ED PK IV ILEG E
We start with the fundamental proposition that
the reporter’s privilege, if one indeed exists, has as
its conceptual basis a common desire for anonymity
among those providing the news media with informa
tion. As a general matter, it is not that which is com
municated to the reporter that is intended to be with
held from publication, but only the identity of the
communicant. The affidavit filed in this action by news
correspondent Walter Cronkite makes the point with
customary precision (A. 52-53) :
3. In doing my work, I (and those who assist
me) depend constantly on information, ideas,
statute compel disclosure of membership in the local NAACP
chapter. See discussion infra at pp. A
1 /
leads and opinions received in confidence. Suefi
material is essential in digging out newsworthy
facts and, equally important, in assessing the
importance and analyzing the significance of
public events. Without such materials, I would
be able to do little more than broadcast press
releases and public statements.
4. The materia] that I obtain in privacy and
on a confidential basis is given to me on that
basis because 1115̂ news sources have learned to
trust me and can confide in me ivitJiout fear of
exposure. In nearly every case, their position,
perhaps their very job or career, would be in
jeopardy if this were not the case. * * * [Em
phasis added.]
To the extent, then, that there is a need for confiden
tiality in order to provide the public with “the widest
possible dissemination of information from diverse
and antagonistic sources” {Associated Press v. United
States, 326 U.S. 1, 20), it has been argued that the
reporter-informant privilege must at least protect
newsmen against involuntary disclosures of news
sources. See, e.g., Hote, Reporters and Their Sources:
The Constitutional Right to a Confidential Relation
ship, 80 Yale L. J. 317, 329-334 (1970).
The media, however, generally seem to view the
claimed professional privilege in a broader light.""
In urging more comprehensive protection of confiden
tial relationships, they emphasize, as does respondent
in the instant ease, that today there are many “dissi-
See generally, Comment, The Newsman's Privilege: Pro
tection of Confidential Associations and Private Comm,urdca-
tions, 4 J. of L. Ref. 85 (1970).
438- 569— 71----- 4
18
dent groups [which] feel oppressed by established in
stitutions, [and] they will not sjjeak to newspapermen
until a relationship of complete trust and confidence
has been developed” (A. 17). A reporter’s continued
access to such groups, it is urged, thus requires pro
tection against a forced betrayal of established confi
dences. Picking up a phrase used by this Court in
another context, such protection is claimed to be es
sential to the preservation of an “untrammeled press
as a vital source of * * * information.” Grosjean v.
American Press Go., 297 P.S. 233, 250.’®
Setting to one side the merits of this constitutional
argument {supra n. 8), it is significant that, with
the exception of respondent and one other journalist,’’®
every experienced reporter who discussed in the dis
trict court the scope of protection necessary to fore
stall possible erosion of such “tenuous and unstable”
relationships (A. 123), defined the outer perimeters
in terms of a professional privilege to Vvuthhold, in
addition to confidential sources, no more than the re-
In Grosjean, this Court held that a special license tax, ap
plicable only to newspapers with circulation in excess of 20,000
copies per week, was an unconstitutional restraint on both pub
lication and circulation. The separate question whether the news
media also had a First Amendment right to gather news was
not presented in that case.
'̂’Gerald Fraser, a black reporter for the New Yorh Times,
was of the opinion that the only professional privilege that
could provide adequate protection to confidential relationships
was one that granted him complete immunity from testifying
“about black activist groups” (A. 22), whether called before a
grand jury or a legislative committee, or asked to appear at
trial. That view apparently is not shared by respondent and
goes far beyond the position he takes in the instant case. See
discussion infra, p.
19
porter’s private notes or tiles, and other inforination
of a confidential nature/’ For example, national cor
respondent Eric Severeid, stated (A. 54): ^^Aiany
people feel free to discuss sensitive matters with me
in the knowledge that I can use it with no necessity
of attributing it to anyone. * * * Should a widespread
impression develop that my information or notes on
these conversations is subject to claim by government
investigators, this traditional relationship, essential
to my kind of work, would be most seriously jeopar
dized.” Similarly, staff correspondent Mike Wallace
emphasized (A. 55) that, if those with whom he had
established a confidential relationship “believed that I
might, voluntarilj^ or involuntarily, betray their trust
by disclosing my sources or their private communica
tions to me, my usefulness as a reporter would be
seriously diminished.” White House correspondent
Dan Rather put it in these terms (A. 60) : “The fear
that confidential discussions may be divulged, as a re
sult of grand jury subpoena, or otherwise, would cur
tail a repoiter’s ability to discover and analyze the
news.” Thus, he concluded (ibid.), newsmen should
not “be forced to disclose confidential conmiunications
and private sources.” And diplomatic correspondent
Marvin Kalb expressed the same view in yet another
way (A. 61) :
As the court below accurately pointed out (A. 118): “The
affidavits contained in this record required the conclusion of
the District Court that "coni'peUecl disclosure of information
received by a journalist within the scope of such confidential
relationships jeopardizes those relationships and thereby impairs
the journalist’s ability to gather, analyze, and publish the
news’ ” (emphasis added).
20
2. In the course of reporting on diplomatic af
fairs, I depend extensively on information which
comes to me in confidence from source^., whose
anonymity must be maintained. * * *
3. Privacy and discretion are the very essence
of my work as a reporter. Most of the informa
tion from which stories of diplomatic develop
ments emerge comes from private talks. Secrecy,
privacy, off-the-record, backgToimd, deep back
ground—these are the words which describe the
kind of work in the reporting of diplomatic
nuance and detail and the building of a. pattern
which ultimately emerges as a story.
4. I f my sources were to learn that their pri
vate talks with me could become public, or could
be subjected to outside scrutiny by court order,
they would stop talking to me, and the job of
diplomatic reporting could not be done.
What emerges from a full reading of the affidavits
of these and other reporters “ is a reaching out among
journalists for a reporter-source privilege—whether it
is to be created as a matter of constitutional right or
^^Eeporters Lowell (A. 44-45), Morgan (A. 46-47) and Yee
(A. 48-50) viewed the claimed privilege as protecting essen
tially confidential sources and production of files, notes or films.
Seporters Burnham (A. 43) and Lukas (A. 39-40) took a
broader view; they stated that the privilege should also pro
tect private communications or other information obtained by
reporters during confidential conversations. Reporters Johnson
(A. 24-25), Kifner (A. 26-27), Knight (A. 28-29), Proffitt (A.
30-31), and Turner (A. 34), in affidavits filed before the
issuance of the subjjoena that is the subject of the instant
litigation (see sujn-a, p. 4), objected principally to the
earlier subpoena duces tecum issued to respondent, calling for
production of notes, files and other documents; they felt this
material should be protected and that an appearance before a
grand jury in response to a subpoena of that nature would
destroy confidential relationships. Reporter Noble (A. 37-38)
21
results from legislative action —which will, protect at
least confidential sources, preferably also the news-
mcin’s confidential notes, and at most the private com
munications and other confidential information received
from an informant who wishes to remain anonymous.
Even if this Court should determine {supra n. 8)
that the most expansive of these alternatives is essen
tial to the preservation of the freedom of the press,
the subpoena involved in this case, as modified by the
district court’s order, does no violence to such a con
stitutional privilege. The judicial safeguards that have
been imposed here, we submit, adequately insulate re
spondent’s appearance from the charge that it gen
erates a “chilling effect” upon the exercise of First
Amendment rights.
expressed the same view. Eeporter Eipley (A. 32-33) related
simply that his own appearance and testimony before a legis
lative committee—without a limitation on the scope of inquiry
similar to the protective court order in this case—destroyed
many of his confidential relationships with “the radical stu
dent left." Finally, Eeporter Arnold (A. 41-42) discussed only
the nature of the reporter^ relationship with various groups,
pointing out that (A. 42), “[tjlie same forces are at work
whether the reporter is covering and writing about a radical
organization, a group of college students, narcotic users,
police, or Democratic or Eepublican politiciaus.” Without com
menting on the scope of protection necessary to a reporter to
maintain tire confidences he has developed, Arnold did point
out the relatively “tenuous and unstable” (A. 123) nature of
these relationships. “If it becomes known,” he stated (ibid.),
“that a reporter is loilling to tell a Go^rernment agency Avhat lie
has heard or learned or saw, his usefulness will be destroyed
because news sources will no longer speak to him” (emphasis
added). Eespondent is in no danger of jeopardizing his use
fulness on that score.
That question, of coni'se, is at the heart of the issues before
the Court in Bra/iishv.rg and Papjxis and will be treated in
our brief amicus curiae in tliose cases (supra n. 8).
22
B. T H E E F E E C T O F T H E SU B PO E N A
1. In SO far as the chill factor is relevant here, the
instant case requires preliminary reference to the two
lines of authority in this Court involving an applica
tion of the ‘‘chilling effect” concept as a basis for
judicial intervention. One, represented by Dombrow-
shi V. Pfister, 380 U.S. 479, Cameron v. Johnson, 390
U.S. 611, and most recently Younger v. Harris, 401
tr.S. 37, inter aha, recognizes a narrow exception to
this Court’s policy of abstention “ where a threatened
criminal prosecution, under an overly broad state
statute regulating expression, is fraught with “ im
ponderables and contingencies that themselves may
inhibit the full exercise of First Amendment free
doms” (380 U.S. at 486). The other, evidenced by
UnUed States v. Rohel, 389 U.S. 258, and most re
cently Coates V. City of Cincinnati, N̂o. 117, October
Term, 1970, decided dune 1 , 1971, inter alia, permits a
direct challenge to a statute purporting to regulate or
proscribe rights of si3eech, press, or association on the
ground that, although perhaps constitutional as applied
to the specific conduct in question, it has a potentially
deterrent impact on the rights of expression of others.
The element common to both lines of decision is that the
sweep of the underlying statutory provisions has a
“ ‘chilling effect’ upon exercise of First Amendment
That policy, grounded 03i principles of comity, is designed
to prevent federal courts generally from interfering- with im
minent or initiated state criminal pi-osecution, or adjudicating
“the constitutionality of state enactments fairly open to inter
pretation until the state courts have been afforded a reasonable
opportunity to pass upon them.” Harrhon v. N A AC P, 360 U.S.
167. 176; and see Younger v. Harris, supra, 401 U.S. at 43-45.
23
freedoms generated by vagueness, overbreadtli and
unbridled discretion to limit their exercise.” Walker v.
City of Birmingham, 388 U.S. 307, 344-345 (Brennan,
J., dissenting)
That concept, of course, has roots in early decisions
by this Court invalidating on due j)roeess gro\mds a
law “which either forbids or recpiires the doing of an
act in terins so vague that men of common intelligence
must necessarily guess at its meaning and differ as to
its application * * Connally v. General Construc
tion Co., 269 U.S. 385, 391."'’ Of more enduring signifi-
cajiee to the chilling effect doctrine, however, are cases
sustaining attacks on overbroad statutes because, as
drafted, they leave room for unconstitutional applica
tion under the First Amendment. See, e.g., Thornhill
V. Alabama, 310 U.S. 88 ; Herndon v. Lotvry, 301 U.S.
242; Stromherg v. California, 283 U.S. 359, 360;
Kingsley In t’l Pictures Corp. v. Regents of Univ. of
N.Y., 360 U.S. 684, 694-695 (Frankfurter, J.,
conciiiTing).
In these latter decisions, as reflected in Smith v.
California, 361 U.S. 147, 151, there is the intimation
“that stricter standards of permissible statutory
vagueness may be applied to a statute having a poten
tially inhibiting effect on speech; a man may the less
be required to act at his peril here, because the free
dissemination of ideas may be the loser.” And see
Winters v. New York, 333 U.S. 507 ,509-510, 517-518.
Unlike the evil in the due process eases of lack of fair
See generally Note, The First AmeruLment Overhreadth
Doctrine, 83 Harv. L. Eev. 844 (1970).
See generally Note, The Yoid-for-Yagueness Doctrine, in the
Suprems Court, 109 U. Pa. L. Rev. 67 (1960).
24
warning, the vice of unconstitutional vagueness in the
area of speech or press inheres in the threat that stat
utes which sweep unnecessarily broad “may throttle
protected conduct. They have a coercive effect since
rather than chance prosecution people will tend to
leave utterances unsaid even though they are protected
by the Constitution.” Collings, Unconstitutional Un
certainty—An A ^m isa l, 40 Cornell L. Q. 195, 219
(1955).^^
Judicial protection against such unconstitutional in
hibition derives support from the “chilling effect” doc
trine. I t permits courts to modify “traditional rules of
standing and prematurity” {Walker v. City of Bir
mingham, 388 U.S. 307, 344 (Brennan, J., dissenting) )
in order to provide an immediate response to the
threat or imposition of legal or criminal sanctions
imposed under overbroad legislation regulating
expression.
In Domhrowski, supra, “the existence of a penal
statute susceptible of sweeping and improper applica
tion” (380 U.S. at 487) generated sufficient chill to
first amendment values to warrant this Court’s inter
ference with threatened state prosecutions that were
In this area the vices of statutory vagueness and overbreadth
are often intimately related. See generally Note, The Void-for-
Vagueness Doctrine in the Sujn-eme Court, supra n. 26^at 110-
113. Indeed, at times the two are functionally indistig^iusliable.
As pointed out in N A A C P v. Button, 371 U.S. 415, 432-433:
“ File objectionable quality of vagueness and overbreadtli does
not depend upon [the] al)senco of fair notice to a criminally
accused or upon unchanneled delegation of legislativ’e po\vers,
but upon the danger of tolerating, in the area of First Amend
ment freedoms, the existence of a penal statute susceptible of
sweeping and improper application.’' And see Note, The First
Amendment Overhreadth Doctrine, supra n. 25, at 871-876.
25
being brought in bad faith to harass and discourage
those intent on promoting ISTegin civil rightst^ By al
lowing injiinctive relief, the Court, without declaring
the state statute unconstitutional, effectively narrowed
the scope of its application so that “ [t]he area of pro
scribed conduct will be adequately defined and the
deterrent effect of the statute contained within con
stitutional limits * * *” (380 U.S. at 490).
The analysis was conceptually no different in Eohel,
supra, though that case involved a direct, rather than
indirect, constitutional challenge to the statute. There,
this Court, ignoring the narrow application of the dis
trict court,invalidated a statutory prohibition on
members of a “registered” Communist-action orga
nization from engaging “in any emj)]oyment in anj^
'W hile we are m in d fu l th a t th is C ourt's recent decisions in
Y o u n g er v. H arris , 401 U .S . 37, B o y le v. L andt'y , 401 U .S. 77,
an d re la ted cases decided th e sam e day, em phasize th a t aspect
o f D om hrow sJd w hich exp la in s ju d ic ia l in terven tion on the
g ro u n d of bad fa ith harassm ent, we do no t understan d those
decisions to re jec t th e analysis in D om brow shi re la tin g to the
“ch illing effect” doctrine. E athei', th e C o u rt in Y ounger, and
re la ted cases, seemed to agree th a t the existence o f a “ch illing
effect” on F ir s t A m endm ent rig h ts due to s ta tu to ry vagueness
or overb read th was essential to ju d ic ia l in terven tion in such
cases. Because o f the “ long-stand ing public policy ag a in st fed
era l cou rt in terfe rence w ith sta te proceedings * * *” (401 U .S . a t
43), how ever, i t insisted th a t “th is so rt of ‘ch illing effect * * *
should n o t by itse lf ju s tify federal in te rv en tio n ” 401 U .S. a t 50).
A n d cf. K eyisliian v. B oard o f R egen ts, 385 U .S . 589; ZroieM er
V. K oota , 389 U .S . 241.
T he d is tric t court h ad overcome the “ ‘likely constitu tional
in firm ity ’ ” o f the s ta tu te by constru ing i t as a p p lju n g only to
“active” m em bers h av in g a “specific in te n t” to fu r th e r th e goals
of th e organ ization (389 U .S. a t 26 1 ); i t concluded th a t there
h a d been no show ing th a t R obel w as w ith in th e narrow ly
defined category.
26
defense facility” (50 U.S.C. (Supp. IV) 784(a)(1)
(D) ) ; the decision was premised solely on the statute’s
inhibiting effect on the exercise of First Amehdirient
rights * * (389 U.S. at 265). Again, as iir Pom-
IjTowski, the chill that called for judicial remedy was
found in the sweep of the statute: “It Casts its met
across a broad range of assoeiational activities, in
discriminately trapping membership which can be con
stitutionally punished and membership which cannot
be proscribed” (389 U.S. at 265-266). That alone, with
out regard to the constitutional status of the particular
complainant, was the “fatal defect” (389 U.S. at 266).^“
Whether one travels the Do'inbrotvski road, or comes
by way of Bobel^ the destination is analytically the
■̂ VSee also N A A C P v. Button, 371 IJ.S. 415 (b a rra try law as
construed held void fo r o v e rb re a d th ) ; Baggett v. Bullitt, 377
XI.S. 360 (lo y a lty o a th s ta tu te held to have an in h ib itin g effect
on free speech because o f v ag u en ess); Coates v. City of Cincin
nati, supra (ord inance re g u la tin g the r ig h t to assemble
held void fo r vagueness an d o v e rb re a d th ) ; cf. A^ptheker v.
Secretary of State, 378 U .S . 500 (fed era l law re s tr ic tin g sub
versives’ rig h ts to ob tain passports held void as an overbroad
burden on fifth am endm ent r ig h t to tra v e l) . T he “ch illing
elfect” analysis in th is line of cases closely para lle ls the reason
in g of th is C ourt in cases invo lv ing licensing o f expression in
public places. See, e.g., Freedmam, v. Maryland, 380 U .S. 51; A
Quantity of Copies of Books v. Kansas, 378 U .S . 205; Staub v.
City o f Baxley, 355 U .S . 313; K unz v. Nexo York, 340 U .S. 290.
T here, too, th e vice of vagueness w a rran ted ju d ic ia l in te rv en
tion in o rd e r to p ro tec t aga in st the prospect o f “self-censorship”
of ac tiv ity pro tec ted by th e F ir s t A m endm ent. A s sta ted in
Freedman, supra, 380 U .S . a t 56, “i t is well established th a t one
has s tan d in g to challenge a s ta tu te on th e g ro u n d th a t i t dele
gates overly broad licensing d iscretion to an ad m in istra tive
office, w hether or no t h is conduct could be proscribed by a
p rop erly d raw n sta tu te , and w hether or no t he app lied fo r a
license.”
27
same. Unconstitutional vagueness or overbreadth is
a prerequisite to judicial intervention imder the
“chilling effect’’ doctrine. See generally Uote, The
First Amendment Overbreadth Doctrine, supra n. 25,
at 852-865. As this Court has emphasized repeatedly,
“ [pjrecision of regulation must be the touchstone in
an area so closely touching our most precious free
doms.” NAACP V. Button, 371 U.S. 415, 438; see also
United States v. B.obel, supra, 389 IT.S. at 265; Keyi-
shian v. Board of Regents, supra, 385 U.S. at 603.
That is the fundamental policy which sustains the
shift in judicial focus from the constitutional status
of a particular complainant’s conduct to the degree of
chill being generated on the conduct of others. “Be
cause First Amendment freedoms need breathing space
to survive, government may regulate in the area only
with narrow specificity.” NAACP v. Button, supra,
371 U.S. at 433.
2. We turn, then, to an examination of the “speci
ficity” of government regulation in the instant case.
The starting point, of course, is the grand jury sub
poena ad testificandum served on respondent on
March 16, 1970 (see n. 5 supra,) ; admittedly, it was im-
restricted in scope or application. This Court, however,
even if it should, peering very deeply, ultimately find
a reporter-source privilege in the Constitution {supra
n. 8), is not called upon in this ease to analogize
“ [t]he deterrent effect of an unbridled subpoena
power * * * to the inhibiting effect of vague and
overbroad statutes affecting First Amendment free
doms.” Uote, Reporters and Their Sources: The Con
stitutional Right to a Confidential Relationship, supra.
28
p. 17, at 336. Whatever might be the validity of that
analogy in the broader context," ̂ it is inapposite here
in light of the significant modifications the district
court made to the March 16 subpoena {supra pp. 5-6).
The appearance which respondent now resists is
exceedingly narrow. By court order, protection—
albeit qualified (p. 6 supra)—has been afforded to
“confidential associations, sources or information re
ceived, developed or maintained by him as a profes
sional journalist * *” (A. 96 105). Moreover,
“ without limiting” (ibid.) this protection, respondent
also need not reveal “ statements made to him or
information given to him by members of the Black
Panther Party unless such statements or informa
tion” were intended “for pu].)lication or public dis
closure” (*&id.). Finally, he has been given explicit
permission to interrupt the ai)pearanee to “ consult
with his counsel” outside the jury room “ at any time
he wishes” {ibid.).
These precisely defined guidelines, we submit, are
well within the “stricter standards of j)ermissible * * *
vagueness” {Smith v. California, supra, 361 U.S.
at 151) applied by this Court in the “ sensitive areas
of basic First Amendment freedoms” {Baggett v.
Bullitt, supra, 377 U.S. at 372). Disclosure has been
explicitly limited to matters wliich are non-confidential
in nature. Compare, e.g., Marcus v. Search Warrant,
C om pare 2 C hafee, Government & Mass Communications,
4 9 5 ^9 9 , w ith Note, Reporters and Their Sources: The Consti
tutional B ight to a Confidential Relationship, supra p. 17, a t
329-358. A n d see generally , BeaveT, The Newsman's Code, The
Claim of Privilege and EverymaNs R ight to Evidence, 47 Ore.
L . Rev. 243 (1968). See also G uest & S tanzler, supra n. 10.
29
367 U.S. 717, with Kingsley Booh, Inc. v. Brown, 354
U.S. 436. If that generates a chill on the right of the
public to a free press, the shiver results not from
the fear that an exercise of protected expression will
bring governmental reprisals. See, e.g., Keyishian v.
Board of Regents, supra, 385 U.S. at 604; Domhrow-
shi V, Pfister, supra, 380 U.S. at 486; NAACP v.
Button, supra, 371 U.S. at 433; ef. Speiser v. Randall,
357 U.S. 513. Rather, it comes from mere speculation
that the ‘‘Black Panthers and other dissident groups”
(A. 19), solely as a reaction against the reporter’s
appearance, will refrain from exercising protected
expression. This may occur; however, where, as here,
such self-imposed silence by dissident groups cannot
be traced to a subpoena power which, from over-
breadth or vagueness, jeopardizes confidences, its
“ chilling effect” is, we think, too incidental to war
rant judicial intervention. Cf. Younger v. Harris,
supra, 401 U.S. at 50-51.‘*‘’
Whatever the resulting pollution to the “ breathing-
space” of First Amendment freedoms {NAACP v.
Button, supra, 371 U.S. at 433)—if a newsman’s priv
ilege is indeed within that area of primary protected
activity {supra n. 8)—it comes not from a lack of speci
ficity in g'overnment regulation, but from the insistence
of a selected few to blind themselves to precisely defined
protections against compelled injurious disclosures (see
There is no evidence in th is record that the subpoena in
th is case was served on respondent in bad fa ith or fo r p u r
poses o f harassment. Sec Younger v. Harris, sugra: Boyle v.
Landry, supra, and related cases decided the same day. iSTor
has respondent ever made any such assertion. See discussion
infra, at pp.
¥ 6
4 'Z 30
pp. 3f-AX infra). That is a response—generated to a
considerable degree by “a good deal of paranoia in the
Movement” (A. 40)—which falls well outside the insu
lated area that this Court has sheltered from the chill
of unconstitutional vagueness and overbreadth. Cf.
Walker v. City of Birmingham, supra, 338 U.S. at 344-
345 (Brennan, J. dissenting).
3. There is another virtue in the precision of the
modifying order in this case. Frequently, this Court
has recognized limitations derived from the First
Amendment upon the government’s right to compel
injurious disclosures of confidential associations. See,
e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449;
Talley v. California, 362 U.S. 60; Gibson v. Florida Leg
islative Investigation Committee, 372 U.S. 539; Lamont
V. Postmaster General, 381 U.S. 301.̂ ̂ In determining
which identities or associational ties must be divulged
and which are entitled to protection, it has balanced
against the governmental interest not only the direct
injury that disclosure might have on the complainant,
but also incidental injury that might result to the
particular association with which he has been linked,
such as discouragement of continued associational
ties, dissuasion of others from joining, or public
harassment. See, e.g., Konigsberg v. State Bar, 366
These decisions generally fa ll in to two ca teg o ries : (1) those
invo lv ing elforts to compel in ju rious disclosures d u rin g legis
la tive investigations, see, e.g.. Communist Party o f the United
States V. Subversive Activities Control Boa,rd, 367 U .S . 1;
Peirenhlatt v. United States., 360 U .S . 109; Sweezy v. Neva
Ilam fshire. 354 U .S . 234; an d (2) those involv ing sta tu tes
req u irin g in ju rio u s disclosures in o rder to exercise F ir s t A m end
m ent rig h ts , see, e.g.. Shelton v. Tucker. 364 U .S . 479; Bates
V. City of Little Rook. 361 U .S . 516; American Commvunica-
tlons Ass^n v. Douds. 339 U .S . 382.
31
U.S. 36; Elfbrandt v. Russell, 384 U.S. 11; cf. WMte-
Jiill V. Elkins, 389 U.S. 54; Sweezy v. New Hampshire,
supraN The underlying policy for this judicial elas
ticity is self-evident: “ Inviolability of privacy in
group association may in many circumstances be in
dispensable to preservation of freedom of association,
particularly when a group espouses dissident beliefs”
{NAAGP V. Alabama ex rel. Patterson, supra, 357
U.S. at 462).
Whenever this Court has focused on the detriment
to aggregate associational rights of all those in a par
ticular group, however, the ease has involved a chal-
'̂‘ A t least one com m entator has discussed these cases as rep
resen ting th e “substan tive [opera tion o f th e] ch illing effect”
doctrine. See Note, The Chilling E fe c t in Constitutional Law,
69 Coluin. L . Rev. 808, 822. W hile th a t analysis has concep
tu a l basis, u'8 th in k it tends to confuse the o v errid in g purpose
fo r the C o u rt’s use of “chilling- effect” : i.e., to m odify “t r a d i
tional ru les o f s tan d in g and p re m a tu rity ” in o rd e r to “insu late
all ind iv idua ls from th e ‘ch illing effect’ upon exercise o f F ir s t
A m endm ent freedom s generated l\y vagueness, overb read th and
unbrid led d iscretion * * *” {WalJeer y . City of Birmingham,
supra. 388 U .S . a t 344-345 (B rennan , J . , d is sen tin g )). In Dom-
broiosJd, Robel, an d the cases discussed eaidier, th e C o u rt v a s
no t concerned w ith the constitu tional s ta tu s of a p a r tic u la r
com p la in an t’s conduct, bu t only w ith th e F ir s t A m endm ent
rig h ts o f expression of unidentified ind iv idua ls generally . See
A. B ickel, The Least Dangerous Branch, 149-150 (1962). B y
con trast, in the cases c ited above, the constitu tional s ta tu s of
th e p a r tic u la r com plainan t’s conduct is d irec tly a t issue; the
court looks to inciden tal in ju ry to th e com plainan t’s associa-
tional ties sim ply as a m easure o f th e burden im posed on him
an d his im m ediate associates by th e s ta tu to ry requirem ent.
Because of th is fundam en ta l d istinction , we th in g these la tte r
cases should no t be lum ped together w ith th e “ch illing effect”
cases, b u t deserve separa te trea tm en t. See generally N ote, The
First Amendment Overbreadth Doctrine, supra n. 25, a t 848-
849, 911-918.
32
lenge to the same type of government activity: com
pelled disclosure of particularized constitutionally
protected associations. '̂' That el^nent is missing here.
As earlier indicated {supra pp. 2^-2^], the only informa
tion presently subject to compulsory process under the
March 16 subpoena (as judicially modified) is wholly
non-eonfidential in nature. Associational ties are
afforded explicit protection (ibid.). Moreover, pre
cisely because of the strict limitations imposed by the
district court on the scope of grand jury interrogation
(cf. LiverigM v. Joint Committee, 279 F. Supp. 205,
215 (M.D. Tenn.)), there is little danger of intrusion
“by more subtle governmental interference” (Bates v.
City of Little Rock, supra, 361 U.S. at 523). Here,
invasions into sphei*es of privacy affected by First
See, e.g.^ Sweezy v. Ne%o Hampshire., supra, 354 U .S. a t
241-242 (com pelled disclosure o f com p la in an t’s “know ledge of
the P rogressive P a r ty in New H am p sh ire o r o f persons w ith
whom he was acquain ted in th a t o rg an iza tio n ” ) ; N A A G P v.
Alabama ex rel. Patterson, supra, 357 U .S. a t 460 (“com pelled
disclosure o f the m em bership lis ts” ) ; B arerjlu tt v. United States,
supra, 360 U .S . a t 126 (com pelled disclosure of com plainan t's
“p ast or p resen t m em bership in the C om m unist P a r ty ” ) ; Bates
V. City o f Little Roch, supra, 361 U .S . a t 517 (com pelled d is
closure of “a lis t of the nam es of the m em bers of a local
b ra n ch ” of th e N A A C P ) ; Talley v. California, supra, 362 U .S.
a t 65 (“com pel m em bers of g roups engaged in th e dissem ina
tio n o f ideas to be publicly iden tified” ) ; Shelton v. Tucker,
supra,, 364 U .S . a t 485 (“com pel a teacher to disclose h is every
associational tie ” ) ; Louisiana ex rel. GremiUion v. N A AC P, 366
U .S . 293, 296 ( “disclosure o f m em bership lis ts” ) ; Gibson v.
Florida Legislative Investigation Committee, supra, 372 U .S. a t
540 (“subpoena to ob ta in the en tire m em bership lis t o f the
M iam i b ran ch ” of the N A A C P ) ; DeGregory v. Attorney Gen
eral of New Hampshire, 383 U .S. 825, 828 (com pelled disclo
sure o f “in fo rm atio n re la tin g to * * * po litica l associations of
an ea rlie r day, th e m eetings * * * a ttended , and the view s ex
pressed and ideas advocated a t any such g a th e rin g s” ).
33
Amendment concerns—however those concerns may
ultimately be defined by this Court {supra n. 8)—
have been effectively foreclosed to the investigative
jjrocess. Not even the news media seek greater jDrotec-
tion than this. As we pointed out earlier {supra pp. 18-
21), virtually all those journalists who spoke to the ques
tion of the proper scope of a reporter’s privilege in
the district court seem to agree that compelled dis
closure of nothing more than matters “for publication
or public disclosure ’ ’—as is the case under the instant
subpoena {supra, pp. 5-6)—would not jeopardize
vital professional relationships; it was the disclosure
of confidential sources, private communications and
other confidential information (including notes, files,
etc.) that caused them concern.'’̂
4. We, therefore, submit that—whatever may be its
ultimate limits—-“the exercise of the power of compul
sory process” has been “carefully circumscribed” in
this case so that the “investigative process” will not “im
pinge upon such highly sensitive areas as freedom of
speech or press, freedom of political association, and
freedom of communication of ideas * * Sweemj v.
®®Tliere thus seems little basis fo r the a rgum en t th a t sub
poenas d raw n along the n arro w lines o f th e one now before
the C ourt w ill induce “self-censorship” am ong rep o rte rs (see n.
30, supra). C f. New York Thnes v. SuUiran, 376 U .S. 254, 279.
I h e N ew sm an’s Code o f E th ics adop ted by th e A m erican
N ew spaper G uild p rov ides: “N ew spaper m en shall refuse to
reveal confidences or disclose sources of confidential in fo rm ation
in court or before o ther ju d ic ia l o r investigative bodies.” B ird
and M ervin, T he N ew spaper and S o c ie ty 667 (1942). T he p ro
posed E llies o f E vidence fo r th e federal courts s im ilarly recog
nizes no general p riv ilege fo r journalists . E evised D ra f t o f the
P roposed E u les of E vidence fo r the- U n ited S ta tes C ourts and
M agistrates, A dvisory C om m ittee’s N ote to P roposed E u le 601.
34
New Hampshire^ supra, 354 IJ.S. at 245; cf. Elf-
J)randt v. Russell, 384 U.S. 11, 18. .’N'or do we under
stand respondent to take a contrary view. His objec
tion here is not really to the fact that he is subject to
compulsory disclosure of information which is con-
cededly non-confidential in nature; nor is his true con
cern that he is unable to anticipate specific questions
he might be asked. Rather his complaint, as stated in
his court of appeals’ brief (p. 49), is simply that:
‘‘Because of the secrecy of the grand jury proceedings,
no one outside the jury room can ever know what
questions were asked or answered * * Properly
viewed, that is not a challenge to the subpoena power
as such, but is, instead, an attack on the fundamental
nature of grand jury proceedings in general. In the
circumstances of the precise protections surrounding
the investigative process in this case, however, the
“long-established policy” of grand jury secrecy
{United States v. Procter <£ GarMe, 356 U.S. 677.
681) must prevail.
C. T H E PR O PE R B A LA N C E
1. The grand jury is, of course, a “part of the fed
eral constitutional system.” United States v. Johnson,
319 U.S. 503, 513. Its adoption in the Constitution “as
the sole method for preferring charges in serious crim
inal cases shows the high place it * * * [holds] as an
instrument of justice.” Costello v. United States, 350
U.S. 359, 362. I t is “pledged to indict no one because
of prejudice and to free no one because of special
favor” {ibid.). Long established as “a great historic
instrument of lay inquiry into criminal wrongdoing”
{United States v. Johnson, supra, 319 U.S. at 512),
35
the grand jury functions “free from technical rules,
acting in secret” {Costello v. United States, 350 U.S.
at 362). See Rule 6(e), F.R. Cr. P. This traditional
policy of secrecy is “ older than our Nation itself”
{Pittshurgh Plate Glass Company v. United States,
360 U.S. 395, 399).̂ ® It has been sustained for a
variety of reasons, all of which are equally “important
for the protection of the innocent as for the pursuit of
the guilty” {United States v. Johnson, supra, 319 U.S.
at 513). And see Wood v. Georgia, 370 U.S. 375, 390.
As summarized in Pittsburgh Plate Glass v. United
States, supra, 360 U.S. at 405 (Brennan, J., dis
senting) :
Essentially four reasons have been advanced
as justification for grand jury secrecy. (1) To
prevent the accused from escaping before he is
indicted and arrested or from tampeiing with
the witnesses against him. (2) To prevent dis
closure of derogatory information presented to
the grand jury against an accused who has not
been indicted. (3) To encourage complainants
and witnesses to come before the p ’and jury and
speak freely without fear that their testimony
will be made public thereby subjecting them to
possible discomfort or retaliation. (4) To en
courage the grand jurors to engage in unin
hibited investigation and deliberation by bar
ring disclosure of their votes and comments
during the proceedings.
See also, e.g.. United States v. Bose, 215 F. 2d 617,
628 (C.A. 3) ; Goodman v. United States, 108 F. 2d
See genera lly 1 H o ldsw orth , H is to ry o f E n g lish L aw
(1927) 322; an d cf. H ale v. H enkel^ 201 TJ.S. 43, 59; B la ir y .
U nited S ta tes, 250 U .S . 273, 282; Jen k in s v. M cK eithen , 395
U .S . 411.
36
516, 519 (C.A. 9); United States v. Amazon Chemical
Industrial Corp., 55 F. 2d 254, 261 (D. Md.).
This, then, is no mere policy of convenience; the
traditional secrecy of grand jury proceedings has long
been recognized as an ‘indispensable” {United States
V. Johnson, supra, 319 U.S. at 513) prerequisite to
that body’s investigative process. See also United
States V. Procter & GamMe, supra, 356 U.S. at 682.
Accordingly, this Court has carefully guarded against
intrusions which necessarily “ would subvert the func
tions” of the grand jury {United States v. Johnson,
supra, 319 U.S. at 513), emphasizing repeatedly that
the secrecy “must not be broken except where there is
a compelling necessity” in specific “ instances” which
“ must be shown with particularity.’’ United States v.
Procter A Gamble Co., supra, 356 U.S. at 682; and
see, e.g., Dennis v. United States, 384 U.S. 855, 868-
875, Pittsburgh Plate Glass Company v. United States,
supra, 360 U.S. at 400; United States v. Socony-
Vacuum Oil Company, 310 U.S. 150, 233.
It is, however, one thing to allow a person, in cir
cumstances of particularized need, to invade the
secrecy of grand jury proceedings “ after the grand
jury’s functions are ended * * * where the ends of
justice require i t” (United States v. So cony-Vacuum
Oil Company, supra, 310 U.S. at 234); it is quite an
other to permit him to evade that secrecy altogether.
This the Court has been loath to do. As stated more
than fifty years ago in Blair v. United States, 250 U.S.
273, 281, “ the giving of testimony and the attendance
upon the court or grand jury in order to testify are
public duties which every person within the jurisdie-
37
tion of the govermnent is boimd to perforin upon
being properly summoned.” See also United States v.
Brycm, 339 U.S. 323; Brown v. Walher, 161 U.'S. 591,
500.̂ ® “ When the grand jury is performing its in
vestigatory function into a general problem area * * *
society’s interest is best served by a thorough and
extensive investigation * * Wood v. Georgia ̂ 370
U.S. 375, 392; and see Hannah v. Larche, 363 U.S.
420, 499 (Douglas, J., dissenting). Thus, that body has
“ the right, and indeed the duty, to follow leads”
wherever they point. United States v. Winter, 348
F. 2d 204, 208 (C.A. 2), certiorari denied, 382 U.S.
955. Its “ investigation is not fully carried out until
every available clue has been nm down and all wit
nesses examined in every proper way to find if a crime
has been committed.” United States v. Stone, 429 F.
2d 138, 140 (C.A. 2). As this Court observed in Blair,
supra, 250 U.S. at 282:
He [the witness] is not entitled to set limits to
the investigation that the grand jury may con
duct * * *. I t is a grand inquest, a body with
powers of investigation and inquisition, the
scope of whose inquiries is not to be limited
narrowly by questions of propriety or forecasts
I n B la ir , th e C o u rt w ent on to say th a t “ [ t]h e du ty , so
onei'ous a t tim es, y e t so necessary to th e ad m in is tra tio n of
justice * * * is subject to m itig a tio n in exceptional circum
stances” (250 U .S . a t 281). T hus, i t no ted th a t “th ere is a
constitu tiona l exem ption from being com pelled in any crim inal
case to be a w itness ag a in st oneself, * * *” (ib id .) . O th e r
wise, th e “m itig a tio n ” re la tes to the g iv in g o f testim ony ra th e r
th a n a ttendance: “some confidential m a tte rs a re shielded from
considerations of policy, an d p e rh ap s in o th er cases fo r special
reasons a w itness m ay be excused from te llin g all th a t he loiow s”
{ib id .).
38
of the probable result of the investigation, or
by doubts whether any particular individual will
be found properly subject to an accusation of
crime. As has been said before, the identity of
the offender, and the precise nature of the of
fense, if there be one, normally are developed
at the conclusion of the grand jury’s labor, not
at the beginning. Hendricks v. United States,
223 U.S. 178,184.
2. Respondent, and the court below (A. 121-126),
however, would have this Court establish a restriction
on the heretofore unlimited investigative powers of the
grand jury. The unqualified duty to attend {Blair v.
United States, supra, 250 U.S. at 281), it is urged,
should not apply to a reporter who asserts, with re
spect to a dissident group under grand jury investiga
tion, a confidential relationship that is so “tenuous
and unstable” (A. 123) that the group may fear he
might betray confidences behind the closed doors of
the jury room. This fear concededly fiows not from the
permissible scope of inquiry, which, as previously in
dicated {supra pp. has in this case been care
fully circumscribed to protect confidential associations,
sources or information. Rather, it emanates solely from
the fact that members of the group under investiga
tion will not be able to know what questions were asked
and answered {supra p. 3l^f. I t is this fear of the un
known, it is alleged, that will motivate the group to
refuse to communicate with the “establishment press”
(A. 41), thereby infringing on the free flow of news
in violation of claimed First Amendment rights.
To limit the probe of the grand jury by such cir
cuitous argument is, we think, unwarranted in the
39
circumstances of this case in particular and injurious
to that body’s traditional investigative function in gen
eral. Even if we accept the conclusion of the court be
low that the Black Panthers have a First Amendment
right to expect that their confidences will not be
betrayed by compulsory process, we see no reason why
that should immunize respondent from appearing,
under the strict protections of the district court order,
to testify only as to concededly non-confidential mat
ters. Of. Kats V. United States, 389 U.S. 347, 351.
Witnesses claiming the more traditional privileges of
attorney-client, husband-wife, penitent priest, or gov
ernment-informer, who are thereby protected from com
pulsory disclosure of confidential associations or iu-
formation, are not excused from appearing in response
to a subpoena. See, e.g., Boviaro v. United States, supra,
353 tJ.S. at 59; Blau v. United States, 340 U.S. 332;
United States v. Thomas George, C.A. 6, Uo. 71-1067,
decided June 14, 1971. Uor does a privilege under the
Fifth Amendment excuse a person from responding to
a grand jury subpoena, even if he ultimately does no
more than claim his right against self-incrimination.
As the Second Circuit remarked in United States v.
Winter, supra, 348 F. 2d at 207: “To suggest that
once an individual is named by witnesses before a
grand jury under circumstances which may lead to his
indictment he thereby automatically gains immunity
from subpoena would denude that ancient body of a
substantial right of inquiry.”
The fact that the claim of privilege in this ease
arises under the First Amendment is no basis for
distinction. As we earlier pointed out {supra pp. ^-32’j^
40
the assertion that compulsory disclosure of associa-
tional ties will invade basic freedoms of expression has
long been recognized by this Court as a reason to re
strict the scope of inquiry of legislative investigating
committees (see, e.g., eases cited at n. 35, supra).
Significantly, however, judicial intervention in such
situations has occurred subsequent to an appearance
as a response to a challenge to specific interrogation.
Never has this Court held that the First Amend
ment exempts a witness from answering a legislative
subpoena. As expressed in Barenblatt v. United
States, supra, 360 U.S. at 126: “Undeniably, the First
Amendment in some circumstances protects an in
dividual from being compelled to disclose his asso-
ciational relationships. However, the protections of the
First Amendment * * * do not afford a witness the
right to resist inquiry in all circumstances.” And cf.
McGrain v. Daugherty, 273 U.S. 135, 160-175; United
States V. Bumely, 345 U.S. 41, 43.
3. The suggestion that a contrary rule is warranted
here because the investigative process is by nature
secret, rather than open, ignores the special protec
tion that covers the instant grand jury appearance.
I t rests on an assumption that “under the pressure of
examination before a Grrand Jury, the witness may
fail to protect [the Black Panthers’] confidences with
quite the same sure judgment he invokes in the nor
mal course of his professional work” (A. 123). But,
the Black Panthers cannot be sure that respondent
has not already spoken about them, or will not in the
future speak about them, to other government agen
cies, or law enforcement officials. Their faith in him
41
must therefore be under constant re-examination with
out regard to his grand jury appearance.
At all events, the danger that respondent might
succumb to “the pressure of examination” in this
case is illusory. He has not been left alone to contend
with adroit questioning of government counsel, or to
interpret legal niceties, in his efforts to keep his con
fidences intact. Rather, respondent is explicitly “per
mitted to consult with his counsel at any time he
wishes during the course of his appearance before the
grand jury” (sMpm p. 6; emphasis added). Although
his attorney must remain outside the jury room, it is
plain from the district court order that the door must
be opened to permit a discussion with counsel after
each question if respondent so desires. Moreover, the
fact, as stated in his affidavit (A. 18) and accepted by
the court below (A. 125), “that there is nothing to
which he could testify (beyond that which he has al
ready made public and for which, therefore, his ap
pearance is unnecessary),” makes his task easier and
reduces substantially any possibility that he will be
compelled to testify as to confidences “under the pres
sure of examination.”
In these circumstances, we submit, the threat of
compulsory disclosure of confidential associations,
sources or information is “imaginary and unsubstan
tial,” not “real and appreciable.” Cf. United States v.
Freed, Ho. 345, October Term, 1970, decided April 5,
1971; Marchetti v. United States, 390 U.S. 39, 48;
Minor v. United States, 396 U.S. 87, 94. We can
not agree with the court below (A. 124) that the
claimed fear of the Black Panthers of a forced be-
42
trayal of confidences under tlie protections present
here is a “human reaction * * * reasonable to ex
pect.” Rather, it is more accurately explained as yet
another manifestation of the recognized “good deal of
paranoia in the Movement” (A. 40). Such unfounded
fears should not be permitted to erode the “long-
established policy that maintains the secrecy of the
grand jury proceedings” {United States v. Procter &
Gamble, supra, 356 U.S. at 681) and “denude that
ancient body of a substantial right of inquiry” {United
States V. Winter, supra, 348 F. 2d at 207). Under the
circumstances of this case, the threat of the Black
Panthers to terminate meaningful communications
with the news media furnishes no more basis for ex
cusing respondent’s appearance than a similar threat
by that group to stop talking with “ the establishment
press” (A. 41) would justify excusing one of its own
members from appearing. Cf. Piemonte v. United
States, 367 U.S. 556, 559; Pittsburgh Plate Glass
Company v. United States, supra, 360 U.S. at 400;
Kaplan v. United States, 234 P. 2d 345 (C.A. 8).
D. T H E G OM PELLIK-G N E E D TE ST
1. There is no basis in law or fact for the court of
appeals’ conclusion that the government must demon
strate a “compelling need” for respondent’s presence
“before judicial process properly can issue to require
attendance” (A. 125). y %
As we have shown {supra pp. 3(8-3if), it has
long been the function of the grand jury, both in
this country and in England, to conduct a “ grand
inquest, * * * the scope of whose inquiries is not to
be limited narrowly by questions of propriety or
43
forecasts of the probable result of the investigation.”
Blair v. United States, supra, 250 U.S. at 281. This
broad investigative power enables that body to pursue
all leads, and gives it the right to investigate on its
own initiative. See Hannah v. Larche, supra, 363 U.S.
at 499 (Douglas, J., dissenting); United States v.
Winter, supra, 348 F. 2d at 208. I t need establish no
factual basis for commencing an investigation, and
can pursue rumors which further investigation may
prove groundless. See United States v. Stone, supra,
429 F. 2d at 140. In short, the grand jury need not
have probable cause to investigate; rather its func
tion is to determine if probable cause exists. As this
Court observed long ago in Hale v. Henkel, 201 U.S.
43, 65: ‘̂I t is impossible to conceive that * * * the
examination of witnesses must be stopped until a
basis is laid by an indictment formally preferred,
when the very object of the examination is to ascer
tain who shall be indicted.”
The court of appeals’ requirement of a preliminary
showing of compelling need as a foundation for call
ing before the grand jury a particular person—what
ever his status or whatever privilege he might
assert—breaks with all precedent. See, e.g.. Hale v.
Henkel, supra; Hendricks v. United States, 223 U.S.
178, 184; LaBocca v. United States, 337 F. 2d 39, 43
(C.A. 8) ; but cf. People v. Dohrn, supra. Without
regard to the proper formulation of the scope of the
government’s burden," the imposition of such a pre-
T he court below w as unable to fo rm u la te a specific s tan d
ard , s ta tin g (A . 126-126); “F o r th e p resen t w'e lack th e om ni
science to spell ou t th e details o f th e G overnm ent’s burden
o r th e ty p e o f proceeding th a t w ould accom m odate efforts to
44
condition, if sustained here, would severly impede
that body’s performance of its traditional fmiction.
In essence, it would require the government to litigate
the question of compelling need before enforcement
of a grand jury subpoena to any reporter working in
a “sensitive” area—and most areas are “‘sensitive”
and “ confidential” to an active newsman." Such liti
gious interruptions of this historic investigative
process have long been discouraged by this Court. Cf.
Cobbledick v. United States, 309 U.S. 323, 325;
United States v. Byan, No. 758, October Term,
1970, decided May 24, 1971; DiBella v. United
States, 369 U.S. 121. Scrutiny of the basis, scope or
nature of a particular inquisition has been judiciously
avoided. See Costello v. United States, sup^^a; Holt
V. United States, 218 U.S. 245. For the various rea
sons set forth above, we cannot agree that the circum
stances presented here warrant now intruding on this
“ acquired * * * independence” (Costello v. United
States, supra, 350 U.S. at 362) of grand juries by
insisting that the government make a satisfactory
showing in court of “compelling need” as a precon
dition to calling respondent (see n. 42 infra).
2. Since respondent has challenged the issuance of
the March 16 subpoena as entirely without basis, we
discuss briefly the reasons underlying that action.
m eet th a t bu rden .” I t no ted (A . 126 n. 11) th a t some g u ide
lines h ad been suggested, th o u g h i t w as “n o t ce rta in th a t [they ]
rep resen t [ed] th e best o r m ost sa tisfac to ry fo rm u la tio n o f the
requirem ent.” B u t see n. 42 in fra .
I t is o u r u n d erstan d in g th a t respondent takes th e position
th a t an y th in g no t published in h is artic les is confidential, even
sta tem ents given to h im fo r publication th a t w ere n o t ac tually
published. Indeed , he claim s th a t he does no t have to au th en
tica te h is published artic les by testim ony before the g ra n d ju ry .
45
As reflected earlier in our Statement {supra pp.
3-4), in a published article in The New York Times on
December 14, 1969 (A. 11-16), respondent attributed
remarks to David Hilliard which indicated that tlie
Black Panthers intended to pick up guns and move
against the government in “armed struggle” ; that
they advocated “ the very direct overthrow of the
Government by way of force and violence” (A, 13).
Such statements, we submit, when viewed together
with the numerous statements of a similar nature then
being made by other members of the Black Panther
Party {supra, p. 3; A. 65-69), provided ample basis
for a grand jury investigation. I t is, of course, well
recognized that freedom of speech “may be abused by
using speech or press or assembly in order to incite to
violence and crime.” DeJonge v. Oregon, 299 U.S. 353,
364. As Mr. Justice Douglas stated recently in his sepa
rate opinion in Samuels v. Mackell, 401 U.S. 66, 75:
But other overt acts relate to the acquisition
of weapons, gunpowder, and the like, and the
storing of gasoline to start fires. Persuasion by
such means plainly has no First Amendment
protection.
* * Certainly violence has no sanctuary in
the First Amendment, and the use of weapons,
gunpowder, and gasoline may not constitution
ally masquerade imder the guise of “ advocacy.”
To be sure, a grand jury investigation of the violent
threats attributed to Hilliard and others may prove
to be fruitless. The grand jury may not be able to tie
the words to actual or contemplated use of force; or
its investigation may show that the statements were
46
no more than empty rhetoric, delivered under such
circumstances as not even to constitute “ fighting
words.” See GJiaplinsky v. New Hampshire, 315 U.S.
568. But those possibilities in no way mitigate the
investigative powers of that institution or lessen its
responsibility to conduct a “ thorough and extensive
investigation” if “ society’s interest is [to be] best
served.” Wood v. Georgia, supra, 370 U.S. at 392.
There was, therefore, strong reason to subpoena
respondent in this case. His newspaper article was not
an editorial; nor was it simply a paraphrase of state
ments by Hilliard and other members of the Black
Panther Party. I t contained, instead, direct quotations
which on their face seemed outside the protections of
First Amendment free speech. Consequently, it was a
proper exercise of the grand jury subpoena power to
call respondent to testify, at the very least, that he did
indeed hear the words quoted in his articles; that they
were made seriously and not in jest. Moreover, from
the published article it appears that he may have
other information of a non-confidential nature which
would be of interest to the grand jury. I t was in these
circumstances entirely reasonable to assume that his
testunony could be “ important for the protection of
the innocent as for the pursuit of the guilty” {United
States V. Johnson, supra, 319 U.S. at 513).
For can we agree with the court below that re
spondent’s self-serving statements after receiving the
subpoena—to the effect that he had no information
of a non-confidential nature that was not already
printed in published articles (A. 18, 125)—eliminated
all need for requiring his appearance. A witness’
47
tlireat that he will refuse to answer all questions put
to him by the grand jury on grounds of a First Amend
ment privilege should no more be permitted to “de
nude that ancient body of a substantial right of in
quiry” than is a similar threat under the Fifth
Amendment. United States v. Winter, supra, 348 F.
2d at 207-208. Since respondent may under the present
court order claim; a privilege as to particular questions
at the time they are asked, the grand jury should not
in this case, any more than it is in other cases, be re
quired to predetermine and disclose the scope of its
investigation as a condition to calling before it a re
porter who has imdertaken to make public many state
ments, including allegedly direct quotations from a
number of people.
T h e A tto rn ey G eneral h as tak en steps to m inim ize th e
possib ility th a t th is issue w ill reoccur in a fed era l context.
W hile th is litig a tio n was u n d er w ay, he issued guidelines w hich
are to govern th e prac tice o f th e D ep artm en t o f Ju s tice in
sum m oning new sm en before g ra n d ju ries in th e fu tu re . See
A pp en d ix A , pp . 47-A9), in fra . T h e eva lua tion o f need contem
p la ted by th e guidelines is to be conducted in te rn a lly ; i t w ould
no t requ ire th e governm ent to litig a te th e question o f com pel
lin g need before enforcem ent o f a g ra n d ju ry subpoena to news
repo rters . T h e in te rn a l guidelines are no t in tended to create any
litig ab le rig h ts in an d o f them selves.
48
COSrCLITSIOlT
For the reasons stated, the judgment of the court
of appeals should be reversed and the case remanded
for further proceedings in accordance with this Court’s
opinion.
Respectfully submitted.
Erwin JST. G-riswold,
Solicitor General.
W ill W ilson,
Assistant Attorney General.
W m. B radford Reynolds,
Assistant to the Solicitor General.
Beatrice Rosenberg,
Sidney M. Glazer,
Attorneys.
J uly 1971.
APPENDIX
Department of J ustice,
Washington, D.C., Septemher 2,1970,
Memo No. 692
To A ll U nited Static Attorneys
Subject: Gruidelines for Subpoenas to the News Media.
The following guidelines for subpoenas to the news
media are quoted from; the address “Free Press and
Pair Trial: The Subpoena Controversy” by the Hon
orable John N. Mitchell, Attorney General of the
United States, before the House of Delegates, Ameri
can Bar Association, at St. Louis, Missouri, on Au
gust 10,1970.
W ill W ilson,
Assistant Attorney General,
Criminal Bivision.
First: The Department of Justice recognizes that
compulsory process in some circumstances may have
a limiting effect on the exercise of First Amendment
rights. In determining whether to request issuance of
a subpoena to the press, the approach in every case
must be to weight that limiting effect against the
public interest to be served in the fair administration
of justice.
Second: The Department of Justice does not con
sider the press “an investigative arm of the govern
ment.” Therefore, all reasonable attempts should be
made to obtain information from non-press sources
before there is any consideration of subpoenaing
the press.
( 49)
50
Third: I t is the policy of the Department to insist
that negotiations with the press be attempted in all
cases in which a subpoena is contemplated. These ne
gotiations should attempt to accommodate the inter
ests of the grand jury with the interests of the news
media.
In these negotiations, where the nature of the in
vestigation permits, the government should make clear
what its needs are in a particular case as well as its
willingness to respond to particular problems of the
news media.
Fourth: I f negotiations fail, no Justice Department
official should request, or make any arrangements for,
a subpoena to the press without the express authori
zation of the Attorney Gleneral.
If a subpoena is obtained under such circumstances
without this authorization, the Department will—as a
matter of course—^move to quash the subpoena with
out prejudice to its rights subsequently to request the
subpoena upon the proper authorization.
Fifth: In requesting the Attorney General’s au
thorization for a subpoena, the following principles
will apply:
A. There should be sufficient reason to believe that
a crime has occurred, from disclosures by non-press
sources. The Department does not approve of utilizing
the press as a spring board for investigations.
B. There should be sufficient reason to believe that
the information sought is essential to a successful in
vestigation—particularly with reference to directly
establishing guilt or innocence. The subpoena should
not be used to obtain peripheral, non-essential or
speculative information.
51
C. The Government should have unsuccessfully at
tempted to obtain the infomiation from alternative
non-press sources.
D. Authorization requests for subpoenas should nor
mally be limited to the verification of published in
formation and to such surroimding circumstances as
relate to the accuracy of the published mformatiori.
E. Great caution should be observed in requesting
subpoena authorization by the Attorney General for
unpublished information, or where an orthodox First
Amendment defense is raised or where a serious claim
of confidentiality is alleged.
F. Even subpoena authorization requests for pub
licly disclosed information should be treated with care
because, for example, cameramen have recent! y been
subjected to harassment on the grounds that their
photographs will become available to the government.
G. In any event, subpoenas should, wFerever pos
sible, be directed at material information regarding
a limited subject matter, should cover a reasonably
limited period of time, and should avoid requiring
production of a large volume of unpublished material.
They should give reasonable and timely notice of the
demand for documents.
These are general rules designed to cover the great
majority of cases. I t must always be remembered that
emergencies and other unusual situations may de
velop where a subpoena request to the Attorney Gen
eral may be submitted which does not exactly conform
to these guidelines.
U.S. GOVERNMENT PRINTING OFFICE: (97J
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