# Branzburg v. Hayes/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Powell
* Dissenting Opinions Douglas Stewart
[p711] MR. JUSTICE DOUGLAS, dissenting in No. 70-57, United States v. Caldwell.
Caldwell, a black, is a reporter for the New York Times and was assigned to San Francisco with the hope that he could report on the activities and attitudes of the Black Panther Party. Caldwell in time gained the complete confidence of its members and wrote in-depth articles about them.
He was subpoenaed to appear and testify before a federal grand jury and to bring with him notes and tapes covering interviews with its members. A hearing on a motion to quash was held. The District Court ruled that while Caldwell had to appear before the grand jury, he did not have to reveal confidential communications unless the court was satisfied that there was a "compelling and overriding national interest." See 311 F. Supp. 358, 362. Caldwell filed a notice of appeal and the Court of Appeals dismissed the appeal without opinion.
Shortly thereafter a new grand jury was impaneled and it issued a new subpoena for Caldwell to testify. On a motion to quash, the District Court issued an order substantially identical to its earlier one.
Caldwell refused to appear and was held in contempt. On appeal, the Court of Appeals vacated the judgment of contempt. It said that the revealing of confidential sources of information jeopardized a First Amendment freedom and that Caldwell did not have to appear before the grand jury absent a showing that there was a "compelling and overriding national interest" in pursuing such an interrogation.
The District Court had found that Caldwell's knowledge of the activities of the Black Panthers "derived in substantial part" from information obtained "within the scope of a relationship of trust and confidence." Id., at 361. It also found that confidential relationships of this sort are commonly developed and maintained by [p712] professional journalists, and are indispensable to their work of gathering, analyzing, and publishing the news.
The District Court further had found that compelled disclosure of information received by a journalist within the scope of such confidential relationships jeopardized those relationships and thereby impaired the journalist's ability to gather, analyze, and publish the news.
The District Court, finally, had found that, without a protective order delimiting the scope of interrogation of Earl Caldwell by the grand jury, his appearance and examination before the jury would severely impair and damage his confidential relationships with members of the Black Panther Party and other militants, and thereby severely impair and damage his ability to gather, analyze, and publish news concerning them; and that it would also damage and impair the abilities of all reporters to gather, analyze, and publish news concerning them.
The Court of Appeals agreed with the findings of the District Court but held that Caldwell did not have to appear at all before the grand jury absent a "compelling need" shown by the Government. 434 F. 2d 1081.
It is my view that there is no "compelling need" that can be shown which qualifies the reporter's immunity from appearing or testifying before a grand jury, unless the reporter himself is implicated in a crime. His immunity in my view is therefore quite complete for, absent his involvement in a crime, the First Amendment protects him against an appearance before a grand jury and if he is involved in a crime, the Fifth Amendment stands as a barrier. Since in my view there is no area of inquiry not protected by a privilege, the reporter need not appear for the futile purpose of invoking one to each question. And, since in my view a newsman has an absolute right not to appear before a grand jury, it follows for me that a journalist who voluntarily appears before that body may invoke his First Amendment privilege to specific [p713] questions. The basic issue is the extent to which the First Amendment (which is applicable to investigating committees, Watkins v. United States, 354 U.S. 178, NAACP v. Alabama, 357 U.S. 449, 463; Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539; Baird v. State Bar of Arizona, 401 U.S. 1, 6-7; In re Stolar, 401 U.S. 23) must yield to the Government's asserted need to know a reporter's unprinted information.
The starting point for decision pretty well marks the range within the end result lies. The New York Times, whose reporting functions are at issue here, takes the amazing position that First Amendment rights are to be balanced against other needs or conveniences of government. My belief is that all of the "balancing" was done by those who wrote the Bill of Rights. By casting the First Amendment in absolute terms, they repudiated the timid, watered-down, emasculated versions of the First Amendment which both the Government and the New York Times advance in the case.
My view is close to that of the late Alexander Meiklejohn:
   "For the understanding of these principles it is essential to keep clear the crucial difference between 'the rights' of the governed and 'the powers' of the governors. And at this point, the title 'Bill of Rights' is lamentably inaccurate as a designation [p714] of the first ten amendments. They are not a 'Bill of Rights' but as a 'Bill of Powers and Rights.' The Second through the Ninth Amendment limit the powers of the subordinate agencies in order that due regard shall be paid to the private 'rights of the governed.' The First and Tenth Amendments protect the governing 'powers' of the people from abridgment by the agencies which are established as their servants. In the field of our 'rights,' each one of us can claim 'due process of law.' In the field of our governing 'powers,' the notion of 'due process' is irrelevant."
He also believed that "[s]elf-government can exist only insofar as the voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express," and that "[p]ublic discussions of public issues, together with the spreading of information and opinion bearing on those issues, must have a freedom unabridged by our agents. Though they govern us, we, in a deeper sense, govern them. Over our governing, they have no power. Over their governing we have sovereign power."
Two principles which follow from this understanding of the First Amendment are at stake here. One is that the people, the ultimate governors, must have absolute freedom of, and therefore privacy of, their individual opinions and beliefs regardless of how suspect or strange they may appear to others. Ancillary to that principle is the conclusion that an individual must also have absolute privacy over whatever information he may generate in the course of testing his opinions and beliefs. In this regard, Caldwell's status as a reporter is less relevant than is his status as a student who affirmatively pursued empirical research to enlarge his own intellectual [p715] viewpoint. The second principle is that effective self-government cannot succeed unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and re-examination. In this respect, Caldwell's status as a news gatherer and an integral part of that process becomes critical.

## I

Government has many interests that compete with the First Amendment. Congressional investigations determine how existing laws actually operate or whether new laws are needed. While congressional committees have broad powers, they are subject to the restraints of the First Amendment. As we said in Watkins v. United States, 354 U.S., at 197: "Clearly, an investigation is subject to the command that the Congress shall make no law abridging freedom of speech or press or assembly. While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless an investigation is part of lawmaking. It is justified solely as an adjunct to the legislative process. The First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking."
Hence, matters of belief, ideology, religious practices, social philosophy, and the like are beyond the pale and of no rightful concern of government, unless the belief or the speech, or other expression has been translated into action. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642; Baird v. State Bar of Arizona, 401 U.S., at 6-7, In re Stolar, 401 U.S. 23.
Also at stake here is Caldwell's privacy of association. We have held that "[i]nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." NAACP v. [p716] Alabama, 357 U.S., at 462; NAACP v. Button, 371 U.S. 415.
As I said in Gibson v. Florida Legislative Investigation Committee, 372 U.S., at 565: "the associational rights protected by the First Amendment... cover the entire spectrum in political ideology as well as in art, in journalism, in teaching, and in religion.... [G]overnment is... precluded from probing the intimacies of spiritual and intellectual relationships in the myriad of such societies and groups that exist in this country, regardless of the legislative purpose sought to be served.... If that is not true, I see no barrier to investigation of newspapers, churches, political parties, clubs, societies, unions, and any other association for their political, economic, social, philosophical, or religious views." (Concurring opinion.) (Emphasis added.)
The Court has not always been consistent in its protection of these First Amendment rights and has sometimes allowed a government interest to override the absolutes of the First Amendment. For example, under the banner of the "clear and present danger" test, and later under the influence of the "balancing" formula, the [p717] Court has permitted men to be penalized not for any harmful conduct but solely for holding unpopular beliefs.
In recent years we have said over and over again that where First Amendment rights are concerned any regulation "narrowly drawn," must be "compelling" and not [p718] merely "rational" as is the case where other activities are concerned. But the "compelling" interest in regulation neither includes paring down or diluting the right, nor [p719] embraces penalizing one solely for his intellectual viewpoint; it concerns the State's interest, for example, in regulating the time and place or perhaps manner of exercising First Amendment rights. Thus, one has an undoubted right to read and proclaim the First Amendment in the classroom or in a park. But he would not have the right to blare it forth from a sound truck rolling through the village or city at 2 a.m. The distinction drawn in Cantwell v. Connecticut, 310 U.S. 296, 303-304, should still stand: "[T]he Amendment embraces two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be."
Under these precedents there is no doubt that Caldwell could not be brought before the grand jury for the sole purpose of expressing his political beliefs. Yet today the Court effectively permits that result under the guise of allowing an attempt to elicit from him "factual information." To be sure, the inquiry will be couched only in terms of extracting Caldwell's recollection of what was said to him during the interviews, but the fact remains that his questions to the Panthers and therefore the respective answers were guided by Caldwell's own preconceptions and views about the Black Panthers. His [p720] entire experience was shaped by his intellectual viewpoint. Unlike the random bystander, those who affirmatively set out to test a hypothesis, as here, have no tidy means of segregating subjective opinion from objective facts.
Sooner or later, any test which provides less than blanket protection to beliefs and associations will be twisted and relaxed so as to provide virtually no protection at all. As Justice Holmes noted in Abrams v. United States, 250 U.S. 616, 624, such was the fate of the "clear and present danger" test which he had coined in Schenck v. United States, 249 U.S. 47. Eventually, that formula was so watered down that the danger had to be neither clear nor present, but merely "not improbable." Dennis v. United States, 341 U.S. 494, 510. See my concurring opinion in Brandenburg v. Ohio, 395 U.S. 444, 450. A compelling-interest test may prove as pliable as did the clear-and-present-danger test. Perceptions of the worth of state objectives will change with the composition of the Court and with the intensity of the politics of the times. For example, in Uphaus v. Wyman, 360 U.S. 72, sustaining an attempt to compel a witness to divulge the names of participants in a summer political camp, JUSTICE BRENNAN dissented on the ground that "it is patent that there is really no subordinating interest... demonstrated on the part of the State." Id., at 106. The majority, however, found that "the governmental interest in self-preservation is sufficiently compelling to subordinate the interest in associational privacy...." Id., at 81. That is to enter the world of "make believe," for New Hampshire, the State involved in Uphaus, was never in fear of being overthrown.

## II

Today's decision will impede the wide-open and robust dissemination of ideas and counterthought which [p721] a free press both fosters and protects and which is essential to the success of intelligent self-government. Forcing a reporter before a grand jury will have two retarding effects upon the ear and the pen of the press. Fear of exposure will cause dissidents to communicate less openly to trusted reporters. And, fear of accountability will cause editors and critics to write with more restrained pens.
I see no way of making mandatory the disclosure of a reporter's confidential source of the information on which he bases his news story.
The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring fulfillment to the public's right to know. The right to know is crucial to the governing powers of the people, to paraphrase Alexander Meiklejohn. Knowledge is essential to informed decisions.
As Mr. Justice Black said in New York Times Co. v. United States, 403 U.S. 713, 717 (concurring opinion), "The press was to serve the governed, not the governors.... The press was protected so that it could bare the secrets of government and inform the people."
Government has an interest in law and order; and history shows that the trend of rulers—the bureaucracy and the police—is to suppress the radical and his ideas and to arrest him rather than the hostile audience. See Feiner v. New York, 340 U.S. 315. Yet, as held in Terminiello v. Chicago, 337 U.S. 1, 4, one "function of free speech under our system of government is to invite dispute." We went on to say, "It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and [p722] preconceptions and have profound unsettling effects as it presses for acceptance of an idea."
The people who govern are often far removed from the cabals that threaten the regime; the people are often remote from the sources of truth even though they live in the city where the forces that would undermine society operate. The function of the press is to explore and investigate events, inform the people what is going on, and to expose the harmful as well as the good influences at work. There is no higher function performed under our constitutional regime. Its performance means that the press is often engaged in projects that bring anxiety or even fear to the bureaucracies, departments, or officials of government. The whole weight of government is therefore often brought to bear against a paper or a reporter.
A reporter is no better than his source of information. Unless he has a privilege to withhold the identity of his source, he will be the victim of governmental intrigue or aggression. If he can be summoned to testify in secret before a grand jury, his sources will dry up and the attempted exposure, the effort to enlighten the public, will be ended. If what the Court sanctions today becomes settled law, then the reporter's main function in American society will be to pass on to the public the press releases which the various departments of government issue.
It is no answer to reply that the risk that a newsman will divulge one's secrets to the grand jury is no greater than the threat that he will in any event inform to the police. Even the most trustworthy reporter may not be able to withstand relentless badgering before a grand jury.
[p723] The record in this case is replete with weighty affidavits from responsible newsmen, telling how important is the sanctity of their sources of information. When we deny newsmen that protection, we deprive the people of the information needed to run the affairs of the Nation in an intelligent way.
Madison said:
   "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives." (To W.T. Barry, Aug. 4, 1822.) 9 Writings of James Madison 103 (G. Hunt ed. 1910).
[p724] Today's decision is more than a clog upon news gathering. It is a signal to publishers and editors that they should exercise caution in how they use whatever information they can obtain. Without immunity they may be summoned to account for their criticism. Entrenched officers have been quick to crash their powers down upon unfriendly commentators. E.g., New York Times Co. v. Sullivan, 376 U.S. 254; Garrison v. Louisiana, 379 U.S. 64; Pickering v. Board of Education, 391 U.S. 563; Gravel v. United States, ante, p. 606.
The intrusion of government into this domain is symptomatic of the disease of this society. As the years pass the power of government becomes more and more pervasive. It is a power to suffocate both people and causes. Those in power, whatever their politics, want only to [p725] perpetrate it. Now that the fences of the law and the tradition that has protected the press are broken down, the people are the victims. The First Amendment, as I read it, was designed precisely to prevent that tragedy.
I would also reverse the judgments in No. 70-85, Branzburg v. Hayes, and No. 70-94, In re Pappas, for the reasons stated in the above dissent in No. 70-57, United States v. Caldwell.

## Notes

* ↑ "The three minimal tests we contend must be met before testimony divulging confidences may be compelled from a reporter are these: 1. The government must clearly show that there is probable cause to believe that the reporter possesses information which is specifically relevant to a specific probable violation of law. 2. The government must clearly show that the information it seeks cannot be obtained by alternative means, which is to say, from sources other than the reporter. 3. The government must clearly demonstrate a compelling and overriding interest in the information." Brief for New York Times as Amicus Curiae 29.
* ↑ The First Amendment Is An Absolute, 1961 Sup. Ct. Rev. 245, 254.
* ↑ Id., at 255.
* ↑ Id., at 257.
* ↑ E.g., Schenck v. United States, 249 U.S. 47 (wartime anti-draft "leafleting"); Debs v. United States, 249 U.S. 211 (wartime anti-draft speech); Abrams v. United States, 250 U.S. 616 (wartime leafleting calling for general strike); Feiner v. New York, 340 U.S. 315 (arrest of radical speaker without attempt to protect him from hostile audience); Dennis v. United States, 341 U.S. 494 (reformulation of test as "not improbable" rule to sustain conviction of knowing advocacy of overthrow); Scales v. United States, 367 U.S. 203 (knowing membership in group which espouses forbidden advocacy is punishable). For a more detailed account of the infamy of the "clear and present danger" test see my concurring opinion in Brandenburg v. Ohio, 395 U.S. 444, 450.
* ↑ E.g., Adler v. Board of Education, 342 U.S. 485 (protection of schools from "pollution" outweighs public teachers' freedom to advocate violent overthrow); Uphaus v. Wyman, 360 U.S. 72, 79, 81 (preserving security of New Hampshire from subversives outweiyhs privacy of list of participants in suspect summer camp); Barenblatt v. United States, 360 U.S. 109 (legislative inquiry more important than protecting HUAC witness' refusal to answer whether a third person had been a Communist); Wilkinson v. United States, 365 U.S. 399 (legislative inquiry more important than protecting HUAC witness' refusal to state whether he was currently a member of the Communist Party); Braden v. United States, 365 U.S. 431, 435 (legislative inquiry more important than protecting HUAC witness' refusal to state whether he had once been a member of the Communist Party); Konigsberg v. State Bar, 366 U.S. 36 (regulating membership of bar outweighs interest of applicants in refusing to answer question concerning Communist affiliations); In re Anastaplo, 366 U.S. 82 (regulating membership of bar outweighs protection of applicant's belief in Declaration of Independence that citizens should revolt against an oppressive government); Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (national security outweighs privacy of association of leaders of suspect groups); Law Students Research Council v. Wadmond, 401 U.S. 154 (regulating membership of bar outweighs privacy of applicants' views on the soundness of the Constitution).
* ↑ Thus, we have held "overbroad" measures which unduly restricted the time, place, and manner of expression. Schneider v. State, 308 U.S. 147, 161 (anti-leafleting law); Thornhill v. Alabama, 310 U.S. 88, 102 (anti-boycott statute); Cantwell v. Connecticut, 310 U.S. 296 (breach-of-peace measure); Cox v. Louisiana, 379 U.S. 536 (breach-of-peace measure); Edwards v. South Carolina, 372 U.S. 229 (breach-of-peace statute); Cohen v. California, 403 U.S. 15, 22 (breach-of-peace statute); Gooding v. Wilson, 405 U.S. 518 (breach-of-peace statute). But insofar as penalizing the content of thought and opinion is concerned, the Court has not in recent Terms permitted any interest to override the absolute privacy of one's philosophy. To be sure, opinions have often ad- verted to the absence of a compelling justification for attempted intrusions into philosophical or associational privacy. E.g., Bates v. Little Rock, 361 U.S. 516, 523 (disclosure of NAACP membership lists to city. officials); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 546 (disclosure of NAACP membership list to state legislature); DeGregory v. Attorney General of New Hampshire, 383 U.S. 825, 829 (witness' refusal to state whether he had been a member of the Communist Party three years earlier); Baird v. State Bar of Arizona, 401 U.S. 1, 6-7 (refusal of bar applicant to state whether she had been a member of the Communist Party); In re Stolar, 401 U.S. 23 (refusal of bar applicant to state whether he was "loyal" to the Government); see also Street v. New York, 394 U.S. 576 (expression of disgust for flag). Yet, while the rhetoric of these opinions did not expressly embrace an absolute privilege for the privacy of opinions and philosophy, the trend of those results was not inconsistent with and in their totality appeared to be approaching such a doctrine. Moreover, in another group of opinions invalidating for overbreadth intrusions into the realm of belief and association, there was no specification of whether a danger test, a balancing process, an absolute doctrine, or a compelling justification inquiry had been used to detect invalid applications comprehended by the challenged measures. E.g., Wieman v. Updegraff, 344 U.S. 183 (loyalty test which condemned mere unknowing membership in a suspect group); Shelton v. Tucker, 364 U.S. 479 (requirement that public teachers disclose all affiliations); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296 (disclosure of NAACP membership lists); Whitehill v. Elkins, 389 U.S. 54, 59 (nonactive membership. in a suspect group a predicate for refusing employment as a public teacher); United States v. Robel, 389 U.S. 258 (mere membership in Communist Party a sole ground for exclusion from employment in defense facility). Regrettably, the vitality of the overdue trend toward a complete privilege in this area has been drawn into question by quite recent decisions of the Court, Law Students Research Council v. Wadmond, 401 U.S. 154, holding that bar applicants may be turned away for refusing to disclose their opinions on the soundness of the Constitution; Cole v. Richardson, 405 U.S. 676, sustaining an oath required of public employees that they will "oppose" a violent overthrow; and, of course, by today's decision.
* ↑ Where no more than economic interests were affected this Court has upheld legislation only upon a showing that it was "rationally connected" to some permissible state objective. E.g., United States v. Carolene Products Co., 304 U.S. 144, 152; Goesaert v. Cleary, 335 U.S. 464; Williamson v. Lee Optical Co., 348 U.S. 483; McGowan v. Maryland, 366 U.S. 420; McDonald v. Board of Election Comm'rs, 394 U.S. 802; United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4; Richardson v. Belcher, 404 U.S. 78; Schilb v. Kuebel, 404 U.S. 357.
* ↑ The majority cites several cases which held that certain burdens on the press were permissible despite incidental burdens on its news-gathering ability. For example, see Sheppard v. Maxwell, 384 U.S. 333, 358. Even assuming that those cases were rightly decided, the fact remains that in none of them was the Government attempting to extract personal belief from a witness and the privacy of a citizen's personal intellectual viewpoint was not implicated.
* ↑ "The secrecy of the [grand jury's] proceedings and the possibility of a jail sentence for contempt so intimidate the witness that he may be led into answering questions which pry into his personal life and associations and which, in the bargain, are frequently immaterial and vague. Alone and faced by either hostile or apathetic grand juries, the witness is frequently undone by his experience. Life in a relatively open society makes him especially vulnerable to a secret appearance before a body that is considering criminal charges. And the very body toward which he could once look for protection has become a weapon of the prosecution. When he seeks protective guidance from his lawyer he learns that the judicial broadening of due process which has occurred in the past two decades has largely ignored grand jury matters, precisely because it was assumed that the grand jury still functioned as a guardian of the rights of potential defendants." Donner & Cerruti, The Grand Jury Network: How the Nixon Administration Has Secretly Perverted A Traditional Safeguard of Individual Rights, 214 The Nation 5, 6 (1972).
* ↑ It is said that "we remain unclear how often and to what extent informers are actually deterred from furnishing information when newsmen are forced to testify before a grand jury." Ante, at 693. But the majority need look no further than its holdings that prosecutors need not disclose informers' names because disclosure would (a) terminate the usefulness of an exposed informant inasmuch as others would no longer confide in him, and (b) it would generally inhibit persons from becoming confidential informers. McCray v. Illinois, 386 U.S. 300; Scher v. United States, 305 U.S. 251; cf. Roviaro v. United States, 353 U.S. 53.
* ↑ For a summary of early reprisals against the press, such as the John Peter Zenger trial, the Alien and Sedition Acts prosecutions, and Civil War suppression of newspapers, see Press Freedoms Under Pressure, Report of the Twentieth Century Fund Task Force on the' Government and the Press 3-5, (1972). We have not outlived the tendency of officials to retaliate against critics. For recent examples see J. Wiggins, Freedom or Secrecy 87 (1956) ("New Mexico, in 1954, furnished a striking example of government reprisal against... a teacher in the state reform school [who] wrote a letter to the New Mexican, confirming stories it had printed about mistreatment of inmates by guards.... [Two days later he] was notified of his dismissal."); Note, The Right of Government Employees to Furnish Information to Congress: Statutory and Constitutional Aspects, 57 Va. L. Rev. 885-886 (1971) (dismissal of an Air Force employee who testified before a Senate committee with respect to C-5A cargo plane cost overruns and firing of an FBI agent who wrote Senators complaining of the Bureau's personnel practices); N.Y. Times, Nov. 8, 1967, p. 1, col. 2; id., Nov. 9, 1967, p. 2, col. 4 (Selective Service directive to local draft boards requiring conscription of those who protested war); N.Y. Times, Nov. 11, 1971, p. 95, col. 4; id., Nov. 12, 1971, p. 13, col. 1; id., Nov. 14, 1971, pt. 4, p. 13, col. 1 (FBI investigation of a television commentator who criticized administration policies); id., Nov. 14, 1971, p. 75, col. 3 (denial of White House press pass to underground journalist).