BRANZBURG v. HAYES 408 U.S. 665 (1972)

Branzburg v. Hayes combined several cases in which reporters claimed a first amendment privilege either not to appear or not to testify before grand juries, although they had witnessed criminal activity or had information relevant to the commission of crimes. The reporters' chief contention was that they should not be required to testify unless a grand jury showed that a reporter possessed information relevant to criminal activity, that similar information could not be obtained from sources outside the press, and that the need for the information was sufficiently compelling to override the First Amendment interest in preserving confidential news sources.

Justice byron r. white's opinion for the Court not only rejected these showings but also denied the very existence of a First Amendment testimonial privilege. Despite the asserted lack of any First Amendment privilege, the White opinion allowed that "news gathering" was not "without its First Amendment protections" and suggested that such protections would bar a grand jury from issuing subpoenas to reporters "other than in good faith" or "to disrupt a reporter's relationship with his news sources." White rejected any requirement for a stronger showing of relevance, of alternative sources, or of balancing the need for the information against the First Amendment interest.

Nevertheless, Justice lewis f. powell, who signed White's 5–4 opinion of the court, attached an ambiguous concurring opinion stating that a claim to privilege "should be judged on its facts by the striking of a proper balance between freedom of the press " and the government interest. Most lower courts have read the majority opinion through the eyes of Justice Powell. An opinion that emphatically denied a First Amendment privilege at various points seems to have created one after all.

Steven Shiffrin
(1986)

(see also: Reporter's Privilege.)