Global Freedom of Expression

Branzburg v. Hayes

Closed Contracts Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    June 29, 1972
  • Outcome
    Remanded for Decision in Accordance with Ruling, Law or Action Upheld, Law or Action Overturned or Deemed Unconstitutional
  • Case Number
    408 U.S. 665
  • Region & Country
    United States, North America
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Civil Law, Criminal Law, Constitutional Law

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Case Analysis

Case Summary and Outcome

In a joint decision regarding cases from California, Kentucky, and Massachusetts, the U.S. Supreme Court ruled that the First Amendment does not grant reporters the privilege to refuse to testify before a grand jury. In each of these cases, the reporters had been compelled to testify regarding information that had been obtained on the promise of confidentiality; the case originating in California was an appeal by the government to overturn a lower court ruling that reporters’ privilege existed under federal law. The Court reasoned that unless the government was acting in bad faith, an exemption for reporters does not exist because they have no privileged access to governmental affairs over average citizens.


This matter consisted of three separate matters combined into one appeal for the sake of judicial efficiency.

First, Paul Branzburg was a staff reporter for the Louisville, Kentucky Courier-Journal. In the late 1960s, Branzburg began focusing his journalistic efforts on covering the use and production of illegal drugs in the Louisville area. For example, on November 15, 1969, Branzburg published an article which documented two young men producing hash from marijuana; the article stated that Branzburg promised his sources that he would not provide their identities. However, Branzburg was later subpeonaed to provide testimony as to the very same incidents upon which he had reported. He refused to identify the individuals, but the trial court denied his contentions that under both Kentucky and constitutional law there is a reporter’s privilege. On appeal, the Kentucky Court of Appeals denied Branzburg’s petition. Branzburg then filed a writ of certiorari before the U.S. Supreme Court.

Second, Paul Pappas was a television reporter in New Bedford, Massachusetts. After local riots occurred, Pappas gained entry into a Black Panther news conference on the condition that he would not disclose anything he saw or heard there. Pappas never filed any story based on the conference. However, Pappas was later called to testify before a grand jury about what he had witnessed at the news conference, and Pappas refused. On appeal of his motion to quash the subpeona, the Massachusetts Supreme Judicial Court ruled that no such reporter’s privilege existed, and Pappas appealed to the Supreme Court.

Caldwell, however, was a case originating out of California in which the government was appealing the appeals court’s ruling that a qualified reporter’s privilege did, in fact, exist under federal law. Similar to Pappas, a journalist in that matter was issued a subpeona to testify before a grand jury regarding events had had observed while covering the Black Panther Party. Although the trial court denied the journalist’s motion to quash the subpeona, the Court of Appeals reversed, holding that unless the government could provide a “compelling” necessity for the testimony, the journalist maintained a privilege that would allow him to refuse to disclose his sources. Unhappy with this result, the government filed briefs before the U.S. Supreme Court.

Finding the matters all substantially similar, the national high court granted certiorari in all three cases and combined its analysis.

Decision Overview

In somewhat rambling fashion, the United States Supreme Court held that neither the First Amendment nor federal common law grants reporters a privilege that may prevent them from testifying in criminal matters before a grand jury. The court compared journalists to average citizens, and if a citizen isn’t able to claim testimonial privilege and instead is forced to disclose their observations of criminal activities, then so is a journalist.

Under the court’s First Amendment analysis, the court compared the lack of a reporter’s privilege to the fact that journalists have no greater access to governmental affairs than average citizens do. In other words, the constitution does not provide journalists with completely unfettered rights as enumerated in the freedom of the press; rather, that freedom has always contained restrictions. Specifically, the freedom of the press must always be balanced with a given public interest, and if the public interest outweighs the journalist’s interest, than the journalist must accept that his or her press rights are limited.

In cases of protecting one’s sources, the court held that the journalist’s interest in maintaining confidentiality would lead to many criminals avoiding judicial liability for their acts. While this confidentiality may be part of the freedoms members of the press hope to carry, the public interest in prosecuting and punishing criminals far outweighs the journalist’s confidentiality interest. The court reasoned that it was far better to do something about a crime – such as bring the criminal to justice – than to just write about the events that occurred in the crime’s commission.

The court also noted that under traditional English law (the source of much American law) and the United State’s own common law, a reporter’s privilege has never existed. Although some states have created a reporter’s privilege, the majority have no such privilege and the federal judiciary has certainly never permitted journalists to refuse to testify. Creating such a privilege would lead to the absurd conclusion that any criminal who merely talked to a journalist would be able to avoid liability if the journalist was the only party who could actually identify the criminal.

The court noted that despite the numerous amicus briefs arguing that the failure to create a reporter’s privilege would lead to the press being “chilled” due to their inability to get sources to talk, these fears are purely speculative. Instead, although a reporter’s privilege has never existed, the American press has “flourished” since the country was founded. Additionally, the number of interactions between journalists and their sources which were at issue in this case – those involving criminal matters – are somewhat rare.

As is common with even express holdings such as the one in this case, the court did note that there were some instances in which a reporter’ could claim a privilege. Specifically, a reporter could refuse to testify when the reason for procuring the testimony on the government’s part was in bad faith. For example, if the government was seeking “exposure for the sake of exposure,” could not demonstrate any need for the testimony, or the subpeona was not related to any legal ongoing matter whatsoever, a journalist could validly file a motion to quash. In the instances at bar, however, no evidence of bad faith was apparent.

Thus, the petitions filed by Branzburg and Pappas were denied and their respective states’ decisions ordering them to testify about their sources was affirmed. However, the California case was reversed, and the government could be able to procure the journalist’s testimony before a grand jury and ask the journalist questions about the identity of sources.

Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

The court expressly held that unless bad faith existed on the government’s part, a journalist who promised his sources confidentiality would still be forced to testify about the identity of his sources in a criminal grand jury proceeding.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • U.S., Associated Press v. NLRB, 301 U.S. 103 (1937)
  • U.S., Okla. Press Publishing Co. v. Walling, 327 U.S. 186 (1946)
  • U.S., Mabee v. White Plains Publishing Co. 327 U.S. 178 (1964)
  • U.S., Murdock v. Pennsylvania, 319 U.S. 105 (1943)
  • U.S., New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
  • U.S., Garrison v. Louisiana, 379 U.S. 64 (1964)
  • U.S., Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)
  • U.S., Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)
  • U.S., Craig v. Harney, 331 U.S. 367 (1947)
  • U.S., Zemel v. Rusk, 381 U.S. 1 (1965)
  • U.S., Sheppard v. Maxwell, 384 U.S. 333 (1966)
  • U.S., Wood v. Georgia, 370 U.S. 375 (1962)
  • U.S., Lovell v. City of Griffin, 303 U.S. 444 (1938)

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

This case is binding on all state and federal courts in the United States of America.

The decision was cited in:

Official Case Documents

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