Warren E. Burger: We will hear arguments next in 70-94, in the matter of Paul Pappas. Mr. Prettyman you may proceed whenever you’re ready.
E. Barrett Prettyman, Jr.: Mr. Chief Justice, may it please the Court. I represent the petitioner in this case, Paul Pappas. This is the third case in the trilogy now, before the Court involving the First Amendment, a newsman. The facts in the case are relatively simple. Mr. Pappas is an experienced, professional newsman-photographer for WTEV-TV and with its principal offices in New Bedford, Massachusetts. The station covers all of Rhode Island, part of Massachusetts, part of Connecticut. On July 30, 1970, he was in Providence, Rhode Island, when he received a call from his station, telling him to go to New Bedford. They seemed to be burning down New Bedford, was the message that he got, they were not identified. He went to New Bedford, to the west end of the town where apparently that’s his orders had been described for him and he there ran into a barricade. He therefore returned to the New Bedford office, after which he received another call, from his superiors telling him that he went back to the area, he would be allowed into the area through the barricade. He returned and he set up his cameras outside a boarded-up variety store, which apparently was being used as headquarters for the Black Panthers. He set up his camera and a spokesman for the Panthers came out of the store with about a dozen blacks. They gathered and the spokesman gave a press interview. There were approximately five newsmen present, including Mr. Pappas. All of the films which Mr. Pappas took of the news conference were subsequently given to and viewed by the District Attorney. The next sequence of facts which actually gave rise to this case were prompted by two occurrences. First, during the news conference, the spokesman said that the police would be allowed into the store if they had search warrants, if they conducted themselves in a gentlemanly manner and if they were accompanied by the news media. The second occurrence was that at a kind of side conference after the spokesman has gotten through with this more formal press conference, the Panthers complained to Mr. Pappas that the news media always covered the side of the police in circumstances such as these. And on this point, Mr. Pappas said, “Well, that’s because the media are never allowed to show any other side.” Now it was as a result of these two occurrences that the Panthers then agreed with Mr. Pappas that he would be allowed into their headquarters that evening, to spend the night if he wished, if he came back personally, but there was a condition. If there was a raid, they said, he would be allowed to report and photograph anything that took place. On the other hand, if there was no raid, there was no raid, any as he put it anything I saw or heard would be strictly in confidence. Later that night, after he had been accompanied back to and into the headquarters, these conditions were reimposed. They were specifically stated again and he again agreed to them. As a matter of fact there was adverse comment about whether he might not be a police stoolie and he assured them no, he was there as a representative of the press. He understands he was that if there was a police raid, he was free to cover it. If there was no police raid, he would keep whatever he saw or heard in confidence.
Warren E. Burger: Suppose right there, Mr. Prettyman that an unexpected event took place then, not the police raid, but suppose some internal quarrel of the group resulted in one of them killing another in his site. Do you think that pledge of confidence would be protected?
E. Barrett Prettyman, Jr.: I think the privilege would come into play. I think that in the subsequent hearing, on whether they were overriding public interest in the production of his testimony, it might well sway the Court that he saw during the period of confidentiality and privilege and of that which was so vital to the public interest that he should be required to testify, anyway.
Warren E. Burger: Let’s reduce the crime now, instead of the killing, just a serious injury, same procedure?
E. Barrett Prettyman, Jr.: This is precisely, Your Honor, why we suggest to you that there must be a balancing test and this is one of the factors that undoubtedly a judge would take into consideration in determining where the balance lies in this particular case. How serious was the event that he saw? Was there any other source for getting the information? What was the public interest in it? Did he in fact have the relevant information, and so forth. These are the very factors that a Court would consider in determining whether he should be made to testify.
Warren E. Burger: Would you say the same result would obtain if while there, he observed the packaging or processing heroin from the raw state to street sale state?
E. Barrett Prettyman, Jr.: Precisely. So long as he was there and this occurred during the period when the privilege was in effect. Now, the period here, we must remember went into effect when he went into the headquarters, not beforehand. And up until the time that there was a police raid, when all restrictions were on. If anything occurred inside there, then that was privileged but the Court might well find, in a given circumstance, that the public interest overrode the privilege, as it does any --
Warren E. Burger: What does that do to his credibility with these people, I suppose --
E. Barrett Prettyman, Jr.: Your Honor, I think the relationship of confidentiality that can come into effect for any number of reasons. I can only say here that while he apparently, so far as the records shows, did not have a long acquaintanceship with the people. There obviously was something about his demeanor and his seriousness at the time of the press conference which made them believe that they could trust this man. They did not give the same privilege to the other five newsmen who were present.
Byron R. White: Mr. Prettyman, I take it then that you say that the balancing goes on, on an ad hoc basis in each particular case, on a specific factor of this case?
E. Barrett Prettyman, Jr.: Yes, sir.
Byron R. White: Without any general rules or standards?
E. Barrett Prettyman, Jr.: General rule that I would lay down, Mr. Justice White is that there is a privilege and that there is a presumption that the newsman is protected and then and only then can the Government come in with its burden and attempt to carry it by showing the various of elements that we have outlined in our brief.
Byron R. White: Well, what you would require, shall they say we need this evidence to prove a crime, the packages of heroin or the making of bombs or murder, or something like that.
E. Barrett Prettyman, Jr.: Well, let me emphasize. First of all, that there is absolutely no evidence in this record of any crime occurring during these three hours. I want to make that clear, because this is not a criminal case. Secondly, assuming that there was a crime then I would say that they have to show that the Grand Jury is investigating a specific crime. I would say they would show that he had at least probable cause to believe that he had information relating to that crime. Number three, that there was no other available source for receiving, obtaining the same information. And finally, that there was, as this court put it in Gibson, an overriding interest on the part of the public in obtaining that information.
Byron R. White: Well, on that matter, the point -- just a necessity to make the criminal case wouldn’t be automatically enough, would it?
E. Barrett Prettyman, Jr.: No sir. In my view, it would not.
Byron R. White: Well, you’d have to distinguish between crimes.
E. Barrett Prettyman, Jr.: I do. I confess that a rule could be fashion that wouldn’t. In my own view, I think for example to take the Branzburg case that it’s more vital that the public know that a youngster can get a drink in that community, far harder that he can get pot. He can get pot virtually by asking for it and then, he can’t get a drink. I think it’s more important that the public know that and that those boys be prosecuted. On the other hand, I can well see that in a murder case, in a desperate crime situation, that the interest might apply other way.
Byron R. White: But I suppose if you’re going really to achieve your purpose of maintaining the flow of information. The -- there must be some predictability involved in applying these rules you’re suggesting. And I just wonder if the rules you suggested would allow any person who was worried about disclosure to predict whether a reporter’s claim and privilege would be respected or not, in this particular case, on an ad hoc case to case balancing?
E. Barrett Prettyman, Jr.: Your Honor, I think there’s the same degree of predictability as there is in a prior restraint case. There -- in a prior restraint case you do have your exceptions, but the fact is, that a 99% of the cases, there can be no prior restraint and here I would say that the predictability comes because a 99% of the case, the privilege stands and the prosecutors know that and they’re not going to issue the subpoenas unless --
Byron R. White: You mean, it's just sort of an odd thing, I mean it’s much more likely that not that the privilege would be respected in none of the cases.
E. Barrett Prettyman, Jr.: It has even without privilege in many instances before, as was pointed out this morning.
Byron R. White: The situation without some Constitutional privilege.
E. Barrett Prettyman, Jr.: I am afraid Your Honor that if the privilege was stricken we would --
Byron R. White: Stricken?
E. Barrett Prettyman, Jr.: We would [Laughter Attempt] if it was not allowed, [Laughter] we would have --
Byron R. White: Yes, but –-
E. Barrett Prettyman, Jr.: We would have a more serious situation.
William H. Rehnquist: Mr. Prettyman, do you say that one of your standards is that if a Grand Jury must be investigating a specific crime that sounds simple, but I think if to me that imposes some problems.Supposing you have a Grand Jury convene to say investigate an ambulance chasing ring with police participation as they recently had in Chicago or a widespread graft and corruption among officials? And I take it at the outset of that investigation you can’t say that any -- there is probable cause to indict any particular individual. You are not even sure a crime was committed. Would that come within your definition of a specific crime?
E. Barrett Prettyman, Jr.: Your Honor, if you will look at the Caldwell subpoena you will see specific crimes set out that the Grand Jury were investigating. On the other hand, if you would turn to our single appendix, on the first page, you will see that the subpoena orders Mr. Pappas to appear and there to give such evidence as he knows, relating to any matters, which may be inquired of or on behalf of the Commonwealth before said Grand Jury. Now, the Masters of Supreme Judicial Court has said that Mr. Pappas carries a burden to show that the Grand Jury inquiry is improper or oppressive. I would like anyone to tell me how we can show that this is an improper or oppressive Grand Jury inquiry when we don’t even know what in the world they’re investigating.
William H. Rehnquist: Well, what then is your answer to my question?
E. Barrett Prettyman, Jr.: My answer is that while it’s quite true that in many instances the Grand Jury will go from one crime to another or will go from suspicion to fact that where you have First Amendment privilege involved, the heavy duty involved in the prosecution in trammeling on that privilege that there, there is a duty to indicate that kind of situation that they’re inquiring into. As a matter of fact, if you don’t do that, you’re not even sure whether the privilege covers the precise situation that you're looking into. For example, if I might just -- if it turns out that what they are really investigating here was something that happened on June 8, when these disorders apparently were going on as opposed to July 30, that would be an entirely situation and if they were looking into something which they think happened during the three hours that he present in the headquarters. I think, there’s a duty and a burden upon them to come forward with an indication of what it is that they’re investigating.
William H. Rehnquist: Well, supposing they do come forward and say that we’re investigating allegations of an ambulance chasing rocket with police connivance and violations, which could be violations of several State statutes and say no more than that. Does that meet your test to the specific crime?
E. Barrett Prettyman, Jr.: If they cited a statute that they said was violated and gave a period of time and a place when it was suppose to have occurred, I would say yes, it would meet my definition. I would like to point out here, just by way of example that the Massachusetts Supreme Court took judicial notice of the fact, there was gun fire, but they never said when, where, by whom, and certainly didn’t say that it had taken place during the three hours he was there. This is a kind of danger I don’t think you run into if you don’t have some specificity in regard to subpoenaing newsman before a Grand Jury.
Thurgood Marshall: Mr. Prettyman, is that the normal subpoena in Massachusetts in that general language?
E. Barrett Prettyman, Jr.: It’s my understanding that while sometimes they are more specific that this --
Thurgood Marshall: It’s no --
E. Barrett Prettyman, Jr.: This is in -- as a matter of fact it is on a form, Your Honor, because it has a --
Thurgood Marshall: Well, that’s what I assumed --
E. Barrett Prettyman, Jr.: Yes, it has -- as you’ll see it has a blank space said, blank or the Grand Jury and --
Thurgood Marshall: But why, I was thinking was it under that, must I cast question in asked in the first case? In Massachusetts, everybody, including those with privileges, like attorney-client, physician-patient, everybody else with that general subpoena would have to go except the newsman.
E. Barrett Prettyman, Jr.: Your Honor, it was not argued below in this case, that the man did not have to appear before the Grand Jury. I would point to you however, that if there was ever a case, where his appearance would be a useless act, it would be this one, for this reason.
Thurgood Marshall: Well, that’s not my point. My point is they might be wanting to question him about a homicide by an automobile which he happen to witness on his way to work.
E. Barrett Prettyman, Jr.: But, that would not have been received in confidence Mr. Justice.
Thurgood Marshall: Well, I mean, but -- if he was a newspaperman he wouldn’t go.
E. Barrett Prettyman, Jr.: No sir, I quite disagree, he would go. And he would be required to give testimony like anyone else.
Thurgood Marshall: Well, suppose on this day, he went there and told the people, whatever you say, I’ll keep it in confidence. And the next day, he witnessed the (Inaudible) and he gets this general subpoena. Then he looks I understand the opposition say he moved up.
E. Barrett Prettyman, Jr.: No, no I was raising the generality of the subpoena only in relation to the specific confidentiality that has been imposed upon him. What I say is that in view of the fact that once the confidentiality is imposed, you therefore run right smack into your First Amendment problem, that the ordinary duty of the Commonwealth to simply order a -- to issue a general subpoena, must go by the boards, because then, since your entrenching on First Amendment rights, they have got to be more specific and carry more of --
Thurgood Marshall: But why does he have to be more specific about this automobile accident with the reporter than with anybody else?
E. Barrett Prettyman, Jr.: Because, the judge is going to have to make a decision --
Thurgood Marshall: Why?
E. Barrett Prettyman, Jr.: Balancing the various interest as --
Thurgood Marshall: Why? Because he is a reporter.
E. Barrett Prettyman, Jr.: Because, Your Honor, he is obtaining information for the public --
Thurgood Marshall: No, no. This is a reporter, who has confidential information in an entirely different situation he witnessed a crime merely because he is a reporter you have to give him some kind of a hearing.
E. Barrett Prettyman, Jr.: I think you have to give him a hearing, because --
Thurgood Marshall: Merely because he is a reporter.
E. Barrett Prettyman, Jr.: Merely because he is part of the press, protected by the First Amendment, who has received information in order to get a dissemination of information to the public and without this kind of showing.
Thurgood Marshall: But how does the Grand Jury know that he’s got this confidential information, in my case?
E. Barrett Prettyman, Jr.: He is asserts it in the same way that a Grand Jury doesn’t know that a fellow is going to play the bet until he plays it
Thurgood Marshall: Let’s get at the facts right now. He’s got confidential information and he witnessed the crime, two separate things. One was in Boston and one was in Cambridge (ph). And, he gets his subpoena, he come to the Grand Jury and he said, “Uh, uh, solely because I am a reporter, now go, you got to tell me what you want.”
E. Barrett Prettyman, Jr.: Your Honor, if I understand your question correctly, what he saw was not protected by the privilege, because he did not receive it in his direction.
Thurgood Marshall: That’s right, --
E. Barrett Prettyman, Jr.: And he stands in the shoes of any other man. The problem arises only, when as a newsman in an attempt to gather, edit, analyze, write and disseminate information to the public --
Thurgood Marshall: He hadn’t printed that yet.
E. Barrett Prettyman, Jr.: Well, yes.
Thurgood Marshall: So nobody knows he’s got it.
E. Barrett Prettyman, Jr.: Well, the fact remains Your Honor --
Thurgood Marshall: And then he still -- he gets different treatment on the subpoena.
E. Barrett Prettyman, Jr.: Yes, sir.
Thurgood Marshall: That’s problem.
E. Barrett Prettyman, Jr.: Yes, he does Your Honor, and I can only reiterate that the privilege comes into effect when he is obtaining information in confidentiality from sources which busted the confidentiality, he would never receive his story and the public would never receive the story. Let us take this particular case for example, let’s assume there had been a police raid this night. The fact of the matter is that the police raid would never have been covered from the inside, except for this agreement of confidentiality. The public would never have received the story about that police raid from anybody’s viewpoint other than the police. Now, it so happens that the Panthers wanted their side, at least told for once not in a prejudice sense, but to have somebody not just take the word for the police as to what had happened. And they noticed they paid no restriction upon him in regard to his reporting of the police raid. You are free to report it anywhere you want to, to photograph anything you want to.
Thurgood Marshall: Which is to -- I may add to my point, let’s be really specific. A newspaperman and I both see a crime. Can I get a Grand Jury subpoena, only thing I am obliged to do is to go and the newspaperman doesn’t have to go.
E. Barrett Prettyman, Jr.: No, Your Honor.
Thurgood Marshall: Solely because he’s newspaper.
E. Barrett Prettyman, Jr.: Well, I can only --
Thurgood Marshall: Is that your position?
E. Barrett Prettyman, Jr.: No, sir. Unless he received the information in confidence and were in the instance that you posed you did not say that an element of confidence was imposed upon.
Thurgood Marshall: Well, did newspaperman received information in confidence, which he never probably publish to any place?
E. Barrett Prettyman, Jr.: Alright, now there is a lot of information, Your Honor, which in this --
Thurgood Marshall: Well, I knew, does the fact that he has this information or the fact that he’s a newspaper reporter? That’s my only point.
E. Barrett Prettyman, Jr.: Can I draw this distinction for you? A reporter goes to a public press conference by the President of the United States. He is there like any other reporter, no confidence applies -- confidentiality applies. He, like a reporter, he’s like everybody else, except that he is reporting, the story goes out. The next day, the President calls the reporter in and he says, “I would like this off the record, but I’m not sure that you fully understood the point that I was trying to make and I want to give you an in depth look, so that in your future reporting, even though you do not report what I said that you will understand and have a depth of knowledge about this that will make your reporting to the public more meaningful” and he therefore gives him a story. Now, I say, without relevance to the presidency, I say that the confidentiality having been imposed that the only way a Grand Jury is going to get out of him what the President had told him is if it showed an overriding public need for that information, because the element of confidentiality that establish --
Thurgood Marshall: I have to ask for that in my case, I just want -- talking about this crime.
E. Barrett Prettyman, Jr.: Well, I am sorry if I haven’t satisfied you, I --
Thurgood Marshall: So, my whole problem is, if the procedure that you sit on is something in addition to what we’d normally have in the judicial presence. Normally, when you get a subpoena for Grand Jury you can move to quash, that’s about all you can do or you’re going to go into a jail, right?
E. Barrett Prettyman, Jr.: That’s right.
Thurgood Marshall: But, the newspaperman according to you doesn’t have to move to quash.
E. Barrett Prettyman, Jr.: Only if he has information, which he received in confidence, perhaps we can -- perhaps I can satisfy you by analogizing with the Fifth Amendment. You and I both go before the Grand Jury, but it so happens I am implicated in the crime. Now, we are both are obligated to testify, in the sense that we both saw the same thing. But, the fact is that as soon as I plead my Fifth Amendment right, I can then have a Court determine whether I am properly pleading it. When I come out of your category, and I am separate from you. I am distinct, because the constitution coverage --
Thurgood Marshall: No, you aren’t distinct in going into the Grand Jury room. We both go into the Grand Jury room.
E. Barrett Prettyman, Jr.: Can I put the appearance before the Grand Jury to one side, because the problem is that I -- we did not argue this below. And while I do want to say that since the only information that the Grand Jury is apparently seeking is the information that he acquire during the three hours of confidentiality.
Thurgood Marshall: And you say that if they ask him about the crime, he would of course testify to it. And I would require the most -- apart from that.
E. Barrett Prettyman, Jr.: Oh! Yes.
Thurgood Marshall: He would testify.
E. Barrett Prettyman, Jr.: Absolutely.
Thurgood Marshall: Well, that’s where I didn’t understand your prohibition to be.
E. Barrett Prettyman, Jr.: I am sorry, I didn’t make that clear.
Speaker: You don’t really, in your case, Mr. Prettyman, you have to take the position at all that he had a right not to appear. Now, I understand that if you support the Caldwell holding and you had cleared us that you do. But, the facts of your case don’t require you to if this were the only case here?
E. Barrett Prettyman, Jr.: That’s correct. I think --
Speaker: Because your man did up here and he did answer questions as to his name and occupation and so on, and it was only plan they got to this to the interrogation about what had happened inside the headquarters, that he said, “I refuse to answer.” So during the facts of your case, that’s where we now are.
E. Barrett Prettyman, Jr.: That’s correct. I do think I’d be misleading you if I didn’t make two points about it though, number one, is that it would be a total useless act for him to appear and I am not in favor of putting the man at the Grand Jury room for a totally useless act.
Speaker: But he did appear.
E. Barrett Prettyman, Jr.: He did appear once, correct. The other point --
Speaker: He did respond to the subpoena, is that it?
E. Barrett Prettyman, Jr.: Correct. The other point is that in view of what the Caldwell Court said about the Black Panthers that would be equally applicable here, that is if he disappeared again in to the Grand Jury. Well, it might be that a number of things could happen, including his personal safety, as he testifies.
Speaker: But, he has done it once. He did do it; it’s not part of it -- not necessarily part of your case.
E. Barrett Prettyman, Jr.: He’d do it once. Absolutely.
Warren E. Burger: Mr. Prettyman, I’m not sure I track the analogy that you introduced about off the record background news conferences. Was it your position that if -- let us say a Congressional Committee took it away from the court for a moment and call this newspaper reporter and said, what the President or some else, some other public official say to you in this background conference? He would have the same kind of privilege not to dispose it?
E. Barrett Prettyman, Jr.: Your Honor, when we get away from the Grand Jury, there may be other considerations applicable and I am not attempting the day to set down a set of criteria for trial [Voice Overlap] legislature--
Warren E. Burger: Well, in its fullest and so bring it back into the Grand Jury then.
E. Barrett Prettyman, Jr.: But -- yes, that’s absolutely right. What happens, as we see it is this, that when he’s called before the Grand Jury and the questions begin about -- well, as in this case, what did you see and hear during your three hours in the headquarter? Did you see ammunitions?
Warren E. Burger: I am kind to stay over on the analogy and the background press conference because you seemed, I thought to rely on some analogy.
E. Barrett Prettyman, Jr.: Alright, let’s take the --
Warren E. Burger: Now, the Grand Jury says, what did the Secretary of State or someone else say to you in that background press conference, privilege?
E. Barrett Prettyman, Jr.: Recognizing that there may be some distinctions between a legislature and so forth or you now posed to the Grand Jury.
Warren E. Burger: No, Grand Jury.
E. Barrett Prettyman, Jr.: Alright, the privilege applies and then what happens is he refuses to answer the question and he goes before the judge. If the prosecutor persist, my feeling is, the prosecutor wouldn’t have called him in the first place or won’t persist if the Court rules the right way. But, in any event, he goes before the judge and the judge says, as he did in this case, Pappas was asked questions and he told the circumstance under which the press conference, he told the circumstances of his specific agreement, how he went in, how he was made the promise again, and how he came out. Then, the Judge having satisfied himself that in fact a confidentiality was imposed upon him, that he is in fact a newsman during the course of his employment then I would say that the judge then turns to the government or the state and says, “Alright, if you persist, you now have the burden, because of the First Amendment situation, you now have the burden to prove various factors.” What are you investigating? What do you think he knows about it? And, have you gone every else to tie to get the same information. What is really the overriding need for this information in this case? Now, this is not unique Your Honor, because this is going on right now, down in the lower courts, its happening, we have cases in our brief, Dorn and Rios and a lot of others where Courts are doing this exact thing. The fellow who refused to answer the question, the Court will take him in and he’ll say, “I find under this circumstances that you're interest is not sufficient in view of the First Amendment Privilege and therefore, the subpoena is quashed.
Warren E. Burger: I’m afraid I’m confused now about that analogy to the background press conference or the off the record. Perhaps, I am duly influenced by what we all do, read the newspapers. I thought the press had taken the position now that they would not accept backgrounder off the record statements under any circumstances.
E. Barrett Prettyman, Jr.: No sir, that was -- the Washington Post did that and the New York Times issued a set of instructions by which they use a great deal of care in discretion as to the extent that they will accept backgrounders. But this is not true of newspapers in general and even with the New York Times, it’s not completely true. I think you’ll find that confidences at every level and particularly the governmental level, and particularly in regard to minority and radical groups today, as Professor Blasi’s report well demonstrate that the confidentiality plays an absolutely vital role in the gathering and dissemination of information, absolutely essential. And Mr. Justice Marshall, you indicated that the ordinary man would have to appear in circumstances as we’ve outlined. The American Law Institute Model Code of Evidence allows the following people not to appear. There is of course self-incrimination. The attorney, the priest, the physician, the spouse, religious beliefs can’t be in part in political votes, trade secrets, state secrets, official information, communication --
Warren E. Burger: Well, don’t they have to come and test -- don’t they have to come at least to appear, Mr. Prettyman and then assert the privilege?
E. Barrett Prettyman, Jr.: Your Honor, I thought I put that to rest, in the sense that while I do believe that Mr. Pappas should not be made to appear. I have to concede that it was not argued below, you understand --
Speaker: You’re not saying here that this class, the people don’t have to appear, you say, they may not have to testify?
E. Barrett Prettyman, Jr.: No. The argument has been made by Massachusetts and perhaps suggested by the justice that the ordinary person has to turn up and testify and that we’re carving out of that, out of this inviolate right of the Grand Jury, some special case were newsmen and all I’m showing it --
Speaker: And that has a prosecution?
E. Barrett Prettyman, Jr.: Correct, that’s absolutely correct.
Speaker: That many of them at that status -- in other forms?
E. Barrett Prettyman, Jr.: Some are common laws, some by statute? That’s correct. In Massachusetts there was a list, which I won’t read, but which is quite similar to the one I’ve just read. For example like, physician doesn’t have a privilege, but a psychotherapist does. I mean, there are all kinds of exceptions that people have right now. So the only point I’m making on this that, is that it isn’t as if we are saying the newsman is the only one out of the population who doesn’t have to turn up to testify.
Thurgood Marshall: But the physician has to testify to the crime he himself committed?
E. Barrett Prettyman, Jr.: I’m sorry, I didn’t hear you.
Thurgood Marshall: The physician would have to testify as to the crime he himself committed?
E. Barrett Prettyman, Jr.: Well, I think it depends upon his relationship with the party who was injured.
Thurgood Marshall: Well, the crime was committed by two strangers doing.[Voice Overlap]
E. Barrett Prettyman, Jr.: Yes, I would certainly assume. That is correct. And, that is the point --
Thurgood Marshall: Except the ordinary person, it’s everybody except the President of the United States and the reporter, right?
E. Barrett Prettyman, Jr.: [Laughter] But Mr. Justice the distinction between the physician is precisely the one I was trying to make a few minutes ago.
Thurgood Marshall: I agree with my Brother Stewart, I don’t see why you keep on arguing that point with your case [Laughter].
E. Barrett Prettyman, Jr.: I wonder if I can get to the point of Mr. Justice Stewart made in the Branzburg case about speech versus the press. Mr. Justice, I think if these were essentially the same interests. If they were equally protected, there would be no need for any reference in the press, in the constitution to the press as such. The press privilege would be covered by the speech privilege. I think that the speech privilege is not as broad as the functioning process by which the press operates. To put it in another way that the press right is more than a right to speak. The mere right to speak without being able to obtain information, for example would be a meaningless one. Speech normally involves an individual or a group attempting to express their individual view. The press covers the entire spectrum of dissemination not only the views of news, people, and individuals, but the gathering and analyzing and publishing over the whole wrap of news that gets before the public. I think that our founding fathers recognized that it’s one thing just to speak out but that is also vitally important to get the widest possible range of information before the public. And the way to do it is through a free and untrammeled press.
Speaker: My question didn’t suggest that they were equivalent rights, but only that they were equally protected.
E. Barrett Prettyman, Jr.: Well, I think that there are situations where they will not be equally protected.
Speaker: [Voice Overlap] the statute. Well, I don’t think you mean that. They are equally protected, but you said they’re not equivalent rights. One is a broader right.
E. Barrett Prettyman, Jr.: Perhaps that’s a better way of putting it, Your Honor.
Warren E. Burger: Well, since you distinguished them, and where would you put television, speech or press?
E. Barrett Prettyman, Jr.: Well, I think television is equally covered with -- certainly encompassed within the press function. The Court has recognized that radio is. The lower courts have recognized the television is. As a matter of fact, if anything, there should be more of a right rather than the last one because the figure shows that as compared with the largest daily newspaper’s circulation is some 2 million. CBS Daily News, in the evening has 9 million viewers so that the impact is far greater on news dissemination in the television than even the press. I think it’s clearly covered within the privilege. I would like to get back, if I might to the --
Speaker: You would apply the same privilege; I take it to the trial?
E. Barrett Prettyman, Jr.: Your Honor, the point I made a little while ago was that when we get the trials and we recognize that all three of these cases are Grand Juries, we have the element of secrecy; we have the element of merely trying to determine whether there -- whether someone should be indicted and so forth. There might be slightly different considerations that the trial effect takes into consideration in balancing in a trial.
Speaker: The same rule?
E. Barrett Prettyman, Jr.: But the privilege would applied, would come into effect and the only way the difference would be is to trial compared with Grand Jury would be as to whether it might be more important in a particular trial to have his testimonies in the Grand Jury. Otherwise, I think probably the same applies.
Speaker: I’ve already questioned, your arguing somebody else’s case and now I’m going to ask you, did you refer to the Caldwell case in a trial, the rational for the Ninth Circuit’s decision in Caldwell just wouldn’t exist, would it?
E. Barrett Prettyman, Jr.: In terms of his appearance before the Grand Jury, that’s correct.
Speaker: Yes, because he’ll be appearing in a room, open to the public and everybody would know whether or not he spilled the beans.
E. Barrett Prettyman, Jr.: Absolutely, yes. You recognized that even under the District Court order in Caldwell, this case has to be reversed. The State did not put on a single witness. It gave no testimony. It offered nothing of any way at the hearing. The only witness was Mr. Pappas, who established the confidence. The State not only carried no burden, but Massachusetts said it did not have to. That there was no right to be recognized and consequently, the State carry no burden and it said that if we want to prove that the Grand Jury was oppressive in some fashion we would have to do that. But again, since we are totally at a lost to know what it is that they want and why, it’s impossible for us, obviously at this stage to prove that this Grand Jury inquiry is oppressive. There’s not a word, not a word or testimony or evidence from the State to prove anything here. All we have is a simple subpoena in the general language that I’ve indicated to you. And in this regard I’d like to relate -- just a moment to relate an incident in the Guest and Stanzler argument, because to me it drives on the importance of what we’re talking to here. Eugene Patterson of the Atlanta Constitution told of an instance where his paper did an exposé on narcotics in the Georgia State Prison system. They got the information from a doctor who had worked there and who insisted for obvious reasons that his information be kept confidential. The paper published the exposé and immediately a Grand Jury was called. The Grand Jury wasn’t investigating the narcotics in the Georgia Prison System. The Grand Jury want to know the doctor’s name and the publisher refused to produce the doctor’s name. And at the last minute, so as to keep him from going to jail, the doctor revealed his own name and the Grand Jury was dismissed. Now, that is the kind of thing that we face here if you allow Grand Juries without any sanctions at all, any control, any burden on the Government, simply to subpoena someone at will who has received confidential information as part of the press, part of its duty to disseminate news to the public. I’m not for a moment condemning Grand Juries in general or prosecutors in general. All I’m saying is there are too many instances of abuse in the past and potential abuse for the future where a newsman can be called as retaliation for a particular story, as a warning not to go to the Black Panther headquarters next time, for political reasons or for anything else.
Speaker: Would it in your view of the privilege, would it ever expire? Let us assume the reporter said, “I have no more news to report about this particular group or activity. My relationship with the group is over. Don’t ever expect to get any more news out of that particular situation.
E. Barrett Prettyman, Jr.: I think --
Speaker: But there is -- but I do have an area of unpublished news that I promised not to reveal.”
E. Barrett Prettyman, Jr.: Well, in the first place, I think that the ability to waive is on the newsman, so that if he chose --
Speaker: Oh! Yes! He could but he chooses not to.
E. Barrett Prettyman, Jr.: Alright, if he chooses not to, I think the privilege extends --
Speaker: Although he couldn’t argue that by withholding this amount of news, I am going to get some more news out of it. And he says, I never to expect to get anymore out of it.
E. Barrett Prettyman, Jr.: Well, Your Honor that’s a large assumption and I am not sure you can make that. The point is that having received something in confident and then having an effect broken the confidence later, I think that that newsman’s effectiveness could well be [Voice Overlap].
Speaker: Well not only with that circle with others, you are saying?
E. Barrett Prettyman, Jr.: Absolutely, and his whole ability to gather news from whatever group.
Warren E. Burger: Mr. Prettyman, going back to your prior statement about the “bad Grand Jury conduct” down in Georgia or some place. Do you suggest that the Court can engage in constitutional adjudication on a very important matter on the basis that some Grand Juries sometimes abuse their powers?
E. Barrett Prettyman, Jr.: I think that the Court can establish a rule that when a reporter, part of the press protected by the constitution receives during the course of his news gathering duties, information in confidence that that brings the First Amendment into play and he is protected --
Warren E. Burger: Oh! That doesn’t quite get to my question. You seemed to place great weight on the fact that one Grand Jury that you recited abused its powers and I would assume it’s true that Grand Juries do. Is that a basis for constitutional adjudication?
E. Barrett Prettyman, Jr.: Well, but Your Honor, I think in a whole serious of cases the Court has done precisely that. I think in Lamont, Bantam Books, Bates, Dombrowski, Talley what the Court has done is not to say that in this particular instance, there has been a suppression of a First Amendment right. I think what the Court has done in those cases is to say that if you are going to engage in the type of governmental interference involved in those cases, it is gong to have a future chilling effect. And therefore, I think it is incumbent upon the Court to look about, look not only to the instant case but to look at the kind of abuse that could be inherent in a refusal to recognize the privilege. I think certainly, it can look to what is likely to happen if you do not establish the privilege here. You got to remember, we’re not trying to set a set rule here which a newsman can for all time and under any circumstances simply assert privilege and go home. If he asserts it without warrant, if he asserts it then the situation he is not entitled to, that can be determined by Court and that’s the kind of adjudication that’s constantly going on in all kinds of cases. But, yes I do think that in determining chilling effect affect for their future that the Court can look at what might well go on. In the case, for example, where the statute recall -- attempted to make a pamphleteers name and address appear on the pamphlet, the Court didn’t say that in that particular instance, it would hurt the individual. It said that that would detour people in the future from engaging in this kind of First Amendment exercise of rights. Yes, I do think, absolutely that you can look at the kinds of abuses that not only have occurred but might likely occur.
William H. Rehnquist: Mr. Prettyman, in the Georgia case which you mentioned and about which the Chief Justice’s questioned you a moment ago. If it is demonstrable that the Grand Jury simply is not investigating any criminal activity or any legitimate act, might it not be that all persons including reporters would have a privilege against testifying in that situation that that might not depend on a peculiar reportorial privilege.
E. Barrett Prettyman, Jr.: If it was totally demonstrable that the Grand Jury was acting in an oppressive manner, it would fall even under the Massachusetts rule, but I’d like to point in that case that it wasn’t demonstrable until the Grand Jury, as soon as they got the doctor’s name dismissed. It was dismissed. It wasn’t until it was all over and until then, from the surface it apparently looked as if they were investigating narcotic. But the first question was who told you that? And as soon as the name came forward, that was the end of the Grand Jury. How you would ever demonstrate that in advance, I don’t know Mr. Justice. If I could save the few minutes for rebuttal --
Warren E. Burger: Very well Mr. Prettyman. Mr. Hurley.
Joseph J. Hurley: Mr. Chief Justice and may it please the Court. May I say at the outset that in my view there’s no question here whether a newsman’s confidences are going to be protected or not. The real question is to what extent and how, by what means, and in what circumstances? I do say however, with respect to the contention that Mr. Pappas makes that as I understand his contention, a newsman merely by virtue of being a newsman, as an indispensable part of his job, if you will, must be given the privilege not to give evidence that he has acquired about a crime, because he has acquired it “in confidence” and that the reason for this privilege and the reason it arises to the constitutional level is that without this privilege, there will be substantial interference, substantial impairment of the right of free press. Now, the Commonwealth position is with respect that this Court is not in a position to rule as Judge Zirpoli found in the District Court opinion in Caldwell that it is indispensable that a newsman, all newsmen under all conditions have this privilege, qualified though it maybe, that it is essential to the operation of a free press that newsmen have this privilege. I submit that unless this Court can rule that such a privilege is indispensable to the operation of a free press, this case does not rise to the constitutional level. And it then becomes a matter at least so far as the State Courts are concerned for the States to determine whether and to what extent newsmen will be privileged whether it’s a qualified or an absolute privilege not to disclose evidence of crime if they have obtained in confidence. A matter, in other words, for legislation in the States and absent legislation, a matter for the same judicial protection afforded to any citizen against improper, oppressive, unreasonable inquiry, whether it be by a Grand Jury or whether it be on the witness stand in the course of a trial. I think I should state a few additional facts of the Pappas situation because some of the facts that my brother has given, I think may alter my view of the legal problem involved here. And particularly the point as to the terms and conditions under which Pappas entered the Black Panther headquarters on this night. And my brother stated, if I understood him correctly, that the agreement was that Pappas would be allowed into the Black Panther headquarters with the understanding he would report nothing, except a police raid and then if there were a police raid all bets were off. And if my brother meant that it’s his understanding that the agreement was that if there was a raid, any question of confidence ended, I submit that’s not what the record shows. And I think this difference is important for this reason. I say the record shows clearly that what Pappas agreed to do was to keep in confidence, not to report anything he saw or heard inside that headquarters on that night except a police raid. In other words, what Pappas was agreeing to do is not the ordinary newsman confidential source situation. What Pappas was agreeing to do was to silence himself as to event “A”, namely what might go on inside that headquarters other than in the course of a police raid, as the price of a possible story about event “B”, the police raid. What I’m really saying is, that if this Court should disagree and rule that it is indispensable to a free press that a reporter have such a privilege then certainly the Court should rule that that privilege does not extend to a situation where a reporter seals his lips, not for the purpose of getting information, which he is going to use in one way or another as a reporter, but where he silences himself as the price of a story. Because I submit the two are substantially different. In the second situation, the situation that existed here is almost like the situation postulated by Mr. Justice Marshall, the reporter who sees a crime merely as a witness and not as a newsman.
Speaker: Is this case, in other words General Hurley, differs from the other two and that you understand the record Mr. Pappas promised not to write any newspapers stories or anything else, even changing identities and so on, just not to write any newspaper stories at all.
Joseph J. Hurley: He agreed, Your Honor --
Speaker: By contrast to the other two cases where it was a publication of newspaper stories that triggered apparently the Grand Jury investigation, right?
Joseph J. Hurley: That’s right Your Honor, he agreed --
Speaker: And nothing was in fact ever written about that.
Joseph J. Hurley: No, nothing was ever written.
Speaker: What happened?
Joseph J. Hurley: There was no raid he never did --
Speaker: And he did from inside then?
Joseph J. Hurley: He never did write anything, that is true Your Honor. That is true.
Warren E. Burger: Would you analogize this tour that he was getting as a sort of visual backgrounder?
Joseph J. Hurley: Backgrounder? I would say no, Your Honor. I would draw a distinction, suppose Pappas had been really writing about the Black Panthers, and as my brother said, for all if the record knows, unlike Mr. Caldwell, Mr. Pappas is certainly not an expert on the Black Panther. I don’t say that to disparage him but merely to point out a fact. But let’s suppose he were engaged in becoming an expert on the Black Panthers, and he said, “Look, let me in and let me find out what you people really do in there and I won’t report it, but it will be useful to me. I want to find out your side. I want to be able to report your side, not specifically what goes on in here but just to enrich my understanding of the Panthers, as background.” If he had done that, I would not be making the point I am now making. But he didn’t and I think it’s important to keep that in mind. I would also like to develop just somewhat more -- the fact situation because a suggestion has been made not so much perhaps in my brother’s oral argument as in his brief and reply brief that there may be some suspicion here as to how seriously motivated this Grand Jury was, whether there was a fishing expedition or possibly politically motivated. And I would like to point out to Your Honors that the record shows that in New Bedford, in July of 1970, and specifically on the 30 -- on the 30th day of July, Pappas was brought in from Providence because there were fires going on and he himself was told by his own station “they seem to be burning the city down.” That doesn’t mean that there was a rush of accidental fires, the only inference is there’s something going on. Particularly, when you couple that with and these are the words his own counsel used at the hearing in the superior court, “There was turmoil there, you went to report on the turmoil, the disturbances, the disorders,” and Pappas said yes. So, he’s obviously called in, not to report another great New Bedford fire because there’s something in the nature of -- if you will, a riot, a civil disorder going on. The barricades, they are mentioned. My brother at one point in his brief wants the Court to infer that these may have been police lines. Well, obviously the language of the street barricade is not that of the police line, but I think we can infer it from Pappas’ own testimony, in the superior court, as it appears in the record that he tried to get initially to the point where he was told to go for the conference, the Panther Headquarters, and he couldn’t get there because there was a barricade. That’s not a police line, he left and he reported this fact to his station and was told a few minutes later, “Go back, they will now let you in.” That’s not the way we identified public authority. And this becomes even clearer because the statement that was read, which Mr. Pappas did hear outside in the street and did report said in part that they, the area people will let the police into the area, not into the stores, my brother said, but into the area provided they have a search warrant, provided there gentlemanly, provided they bring the press. Now this is not the language of a police line, there is no question as our Court noticed that there were serious civil disorders, that these involve exclusion of the public from various areas of New Bedford, not by the police. We were dealing in other words, with a situation amounting to or smacking of anarchy, civil revolution, if you will. And indeed, well, it’s not in the record, the Grand Jury that questioned or sought to question Pappas did return some indictments against individuals in connection with conspiracy, with weapons offenses. And Pappas was asked about whether there was ammunition in the Panther Headquarters. And while I’m on that point, again, I submit to the Court, there could have been no question in Mr. Pappas mind, what he was being interrogated about before the Grand Jury. It’s true, the form of the subpoena was general, but be -- perhaps it was necessarily general because the Grand Jury was not inquiring into a specific crime, Commonwealth versus Jones, it was looking into a general situation, the disorders that occurred in New Bedford at this time. And Pappas was asked and did respond, was he there and how he happen to be there in the circumstances and so forth, so there was never any question in his mind that what they wanted to know from him and the questions that he was asked that he refuse to answer all related to what he saw and heard in that Black Panther headquarters in this period of three hours that he was there, there never couldn’t have been any doubt in his mind, certainly at that point as to what the Grand Jury wanted to know from him and the fact that he refuse to answer questions and the indictments I referred to were now crossed by the District Attorney subsequently because of his decision, there wasn’t enough evidence. And maybe if they had gotten Pappas evidence, they would’ve been enough, but they certainly can’t think of any question in his mind as to what he was being asked about. So far as the facts are concerned, therefore, I would like to stress them for --
Thurgood Marshall: When we get to decide --
Joseph J. Hurley: Yes, Your Honor.
Thurgood Marshall: During the time that Pappas was in there, I assume the police authorities knew what was going on.
Joseph J. Hurley: That he was there and what --
Thurgood Marshall: No, they knew that the burning was going on and the barricades were up and everything.
Joseph J. Hurley: Yes, Your Honor they did.
Thurgood Marshall: Couldn’t have gotten a search warrant and they found all of that?
Joseph J. Hurley: I suppose they could’ve.
Thurgood Marshall: Without Pappas?
Joseph J. Hurley: I think they could’ve Your Honor. I think what may have been involved is this and I think it may explain why these barricades were permitted to exist. I think a decision was made and I’m not speaking of any personal knowledge. But I think that a decision was made, let’s not move in, let’s see if we can work this thing out by discussion and settlement because there were negotiations going on with the groups involved. Let’s stay back, let’s not put the police in, let’s not have direct --
Thurgood Marshall: What the record -- couldn’t also speculate that they might have decided, well, we saw Pappas go in there, we can subpoena him and find out what’s in there.
Joseph J. Hurley: I think that’s a possibility, Your Honor. But I think it is no more --
Thurgood Marshall: That’s the trouble when you get off into possibilities.
Joseph J. Hurley: I beg your pardon?
Thurgood Marshall: That’s the trouble when you get into possibilities. But it -- well, it’s not a questionable possibility. A search warrant could’ve been obtained.
Joseph J. Hurley: I believe -- I can’t say Your Honor that it could’ve been. I don’t know that at that point they had enough evidence, truthfully I don’t. It’s possible they didn’t know but they only suspect it, but there wasn’t enough evidence to get it. Truthfully I cannot say yes or no. But let’s assume he did --
Thurgood Marshall: He did appear before the Grand Jury, he did answer questions after that that he said -- we’re given to him in confidence.
Joseph J. Hurley: He told that he was there and that he made this agreement and then he said, you know, when they started asking about he saw during in the headquarters, he declined --
Thurgood Marshall: And is Mr. Prettyman correct that the Commonwealth put in no evidence to show any basic need for that.
Joseph J. Hurley: At this point, no Your Honor, I don’t --
Thurgood Marshall: Well, as it -- well, I’m aware, put in any testimony until today on that.
Joseph J. Hurley: There has -- there's never been any occasions to give any, until today Your Honor and I submit there was no occasion then --
Thurgood Marshall: Why not?
Joseph J. Hurley: Because of the procedural context at that time. And what happened was this, Pappas and incidentally, Pappas had already made one appearance, before this Grand Jury, previously and then, when summons begin. Pappas got the subpoena and there was a motion to quash. Now procedurally the question before the Superior Court Judge was whether or not Pappas had a privilege, as he claimed, and he claim, there’s no question, he claimed it from the outset, a qualified privilege, not to give his evidence because he was a newsman and because he got that evidence in confidence as a newsman. The superior court in effect said, “Look, let’s assume that so that there’s no law giving you that privilege,” at least until now and I say, until this day, until this Court acts in these cases. There’s no law giving a newsman such a privilege, as a general proposition. And the superior court Judge reported the matter to the Supreme Judicial Court for determination. There’s no opportunity, there’s no occasion, there’s no need for the Commonwealth to come forward at that point, and say -- well, the issue here is whether or not he’s got a privilege, but we’re now going to put in evidence as to why we need his testimony. As a matter of fact, Your Honor, with respect, I think the inference that you can draw from all the evidence is, that there was a need. The situation I’ve outlined, Pappas -- the evidence he is -- was the only non-Panther in the headquarters. And therefore, I would say that there was no occasion, and there’s still is no occasion for the Commonwealth to meet any burden. And unless until this Court says, there is a privilege, then there is no burden.
Thurgood Marshall: So the answer to my question is, you did not.
Joseph J. Hurley: The Commonwealth has not.
Thurgood Marshall: That’s right.
Joseph J. Hurley: The Commonwealth did cross-examine Pappas. That is the only extent to which the Commonwealth participated; presented any evidence, yes Your Honor that was true. But I say there was no need, there was no occasion. Now, if this Court rules that there is a privilege, then the burden would arise and presumably would be met. But until that, I submit that there is no occasion for it, there is no burden on the Commonwealth. Now --
Speaker: General Hurley --
Joseph J. Hurley: Yes, Your Honor.
Speaker: Does Massachusetts’ procedure provide for a motion to quash a criminal subpoena on the ground of oppressiveness or burdensomeness?
Joseph J. Hurley: Yes, Your Honor. I think that the Court has recognized that in its decision in this case.
Speaker: And, what Massachusetts’ procedure there re -- supposing some other claim, other than a reporter’s privilege were asserted, would Massachusetts’ procedure require that the State bear the burden or that the person claiming the oppressiveness or burdensomeness bear the burden?
Joseph J. Hurley: Well, if Your Honor please, I would say this, that the burden is and should be on the one who claims the exemption. I say that should be true with a newsman or anyone. Suppose I was subpoenaed, for example, to testify before a Grand Jury in the western part of a State on the matter about which obviously I know nothing. I think the burden is on me to come to the Court and say, “Look, their subpoenaing me, and I have no knowledge of this situation. Why do I have to make this trip?” I think the burden is on me, then, it would be up to the Court, the burden would not shift, but perhaps the burden of going forward would shift to the Commonwealth, why are you subpoenaing this individual? And I think this is no difference whether it’s a question of invocation of a right to maintain a confidence or that I have nothing to contribute. I am being harassed. They’ve got the wrong man. Our Court recognizes it.
Speaker: Of course I suppose Pappas’ position is that he did make some sort of a showing of major of burdensomeness or oppressive, and as Justice Marshall points out, the state came back with nothing.
Joseph J. Hurley: Well, has he made it a showing really Your Honor or has the press at all made a showing beyond the statement that it is necessary that we have this right or our new sources are going to dry up. I mean Pappas said that. He said that himself before the superior court judge who heard it. But it -- does that -- what does that really prove? I mean, if you will, go beyond the record in this case, and I say there’s nothing really here that proves that there is a need for such a privilege. But let’s go into the Caldwell affidavits. And if you take the affidavits of the many eminent and respective newsmen there, I was struck by this fact and each one they’re saying that I get a great deal of information in confidence. This is also borne out by the Guest Stanzler survey, which was mentioned in argument this morning. I get a great deal of information in confidence, unless you give me a privilege, people aren’t going to come to me and give me information in confidence. But the short answer is, not to give a short answer, there’s no privilege now, as we’ve pointed out this morning. There never has been and yet they’re getting the information. So that to say we’re not going to get information in the future, unless you recognize this privilege, it seems to me it is not a logical consequence from the fact they’ve been getting information over the years in confidence, even though there is no privilege. I wonder as a practical matter, how much attention does the informant pay to this question, at all? I wonder, for example, if the Panthers have been asked that night, now do you really expect that not only is Paul Pappas not going to report anything he hears in there, but he’s never going to testify about it or if he’s questioned, for example, it was mentioned if there was a fight, or an injury, or a murder. He’s not going to answer police questions. Is that what you really mean? They didn’t say that, the language of the agreement was report. And I really wonder how much attention informant’s pay to this privilege.(Voice Overlap)
Thurgood Marshall: How much attention do you think the Black Panthers would pay to Pappas if he testified?
Joseph J. Hurley: I’m sure Your Honor that he would -- if he testified, the Black Panthers would be unhappy, but -- [Laughter] as was pointed out in the Caldwell case and I think it is important here that the Panthers present an unusually sensitive news source. And it seems to me, the Caldwell decision, as it states both in the District Court and the Court of Appeals, in this case, on these facts, and we’re dealing with this unusually sensitive new source, but I don’t think a general rule can be made on that basis. I don’t think that proves, just because there may be some source, which is unduly sensitive. That all sources are so sensitive that it rises to the level --
Speaker: (Inaudible)
Joseph J. Hurley: They were talking? Oh! By all means, Your Honor.
Speaker: (Inaudible)
Joseph J. Hurley: Testify? -- I would, because I would not -- I would, because I would not regard testifying as a breach of the agreement, because I would not expect that if I said to a reporter, “You can’t print this,” that’s not an agreement, that if he is called to the witness stand and questioned that he is supposed to suffer in silence for my sake. That he --
Thurgood Marshall: I have to add one little point, he wasn’t called, he volunteered?
Joseph J. Hurley: If he volunteered?
Thurgood Marshall: Yes.
Joseph J. Hurley: To testify? I would --
Thurgood Marshall: Before a legislative committee that adds your point went up. Would you talk to him in confidence after that?
Joseph J. Hurley: I truthfully got to, if I would, yes, Your Honor. I think that would go -- that would approach breaking the confidence, but that’s not what were dealing with here.
Speaker: (Inaudible) [Laughter]
Joseph J. Hurley: Unfortunately, I am not up for appointment, so that --
Warren E. Burger: And it’s quite a different case.
Joseph J. Hurley: It is. It’s a different situation. I would point out that Judge Smith in the Superior Court, hearing this, pointed this fact out to Pappas that I have talked to newsman for 40 years in confidence and never one has broken my confidence. And I respect you, even though I think you’re wrong, I respect you for preserving the confidence or seeking to preserve it. But that’s not the legal issue and I’ve got to report to the Supreme Judicial Court, because I have no right to rule, that you have the right to be silent. So, we’re not -- it’s not a --
Thurgood Marshall: If he was called before a Grand Jury and testified, you would not hold that against him, I --
Joseph J. Hurley: I would not, Your Honor.
Thurgood Marshall: I’m sure you wouldn’t. I wouldn’t --
Joseph J. Hurley: Because I would not regard that as a breach of the agreement, a breach of the confidence. I don’t -- I wonder whether the Panthers really would regard it as a breach. They wouldn’t like it, but I wonder if they’d really regard it as a breach of the confidence, viewing it is a --
William H. Rehnquist: (Inaudible) Mr. Hurley, wouldn’t it be fair to say that the flow of information might be cut down even though there wasn’t a breach of confidence just because you -- the first time you would not contemplate of the possibility of the Grand Jury investigation, even though it wasn’t -- which is not a breach of confidence, it was a publication or identification, a view with the information that you don’t want to take a chance on having come about again.
Joseph J. Hurley: Well, Your Honor, I’m not saying that the newsman is unprotected. The only question is how do we do it? Do we hand him a shield as it were and let him put that up and say, “All I have to prove is, I’m a newsman and I got in confidence.” Now, you come forward, and I don’t have time Your Honors, but if you look at the burden that the Pappas contention would place on the State, it would just destroy the Grand Jury system, it’s completely unworkable. So I’m not saying that you don’t ever protect a newsman. All I’m saying is how do you do it? You do it the way all the Court said you do it. Mr. Pappas comes in and says, “I got this in confidence,” and the Courts got to make a determination, including hearing from the government, “Why do you need this man? Why do you need this evidence?” Make a determination on an individual case basis.
Speaker: You wouldn’t like the Constitutional rules in it.
Joseph J. Hurley: No, Your Honor, I wouldn’t. I don’t think you have to. I think it’s unworkable, it’s unrealistic, and it’s unnecessary. I’m interested, for example just quickly looking at the appendix in Caldwell, all the 121 subpoenas. They were served on NBC and ABC over 31 months. First of all, only 72 of them were in criminal cases, 18 in Grand Juries, and 43 of them in criminal cases were by defendants, not by the prosecution. And out of all those that was served by the prosecution, and that 121, excluding three that came out of the Caldwell Grand Jury, there’s only one that I would describe as possibly seeking confidential information from a reporter and that was a subpoena to a station, to bring in effect everything you’ve got on the Mafia or Cosa Nostra and some other named individuals. The only one that you could possible say and of all these 121, only seven of them where subpoenas ad testificandum and those were all served by defendants in criminal cases. So, I wonder really is this the practical problem? The evidence of those subpoenas suggests to me that it isn’t the practical problem. We are dealing with the unusual situation. I don’t mean to minimize the importance of the problem by saying it really occurred, but what I am saying is that the solution is not in ruling that every newsman has got a Constitutional right, and he’s got to have it. We give an attorney a privilege why? To do his job, can it really be said that every newsman to do his job has got to have an analogous and a greater privilege? The newsman privilege would be greater than my privilege, as I understand it because not everything I get in confidence from a client is privilege. If he tells me he’s going to commit a crime, I’m not privileged not to testify, and yet the newsman would be. And the answer is by doing it in an individual basis, either under legislation, if the legislature sees fit to enact it. Or let the Court protect as the Court protects every citizen against unreasonable inquiry. And if the individual doesn’t have to prove that the whole inquiry is unreasonable or oppressive, as my brother suggest, I think. But only that the questions directed to him are unreasonable. And finally as a practical matter, we all know as practical men prosecutors don’t pick fights with the press. We know reporters work out accommodations. Reporters do come forward. Everybody learns in public life, you don’t pick fights with the press because they go to press everyday. I wonder therefore, are we going to leave the press as helpless as it is suggested, if this privilege is not held to exist. I think it was Oscar Wilde who said, “In America, the President reigns,” and that’s his words, not mine, “for four years, but the press rules forever.” And I think there’s a great deal of practical common sense in saying, “Sure, let’s protect the reporter and his confidence.” When in a particular case, it is shown as a result as a Judicial Inquiry that the harm to him in his capacity as a reporter outweighs the public good that would be served and remember, we’re talking -- I’m finish Your Honor.
Warren E. Burger: I think you may -- you may finish your sentence.
Joseph J. Hurley: I just wanted to say, we’re talking here as I think my brother has agreed not about a right that exists for the press, it’s a public right. And the question in each case is this public right, the two sides of a same coin which is more important in a particular case. The public’s right to know through the press or the public’s right to know through the Court. And that’s the problem that’s got to be resolved.
Warren E. Burger: Thank you Mr. Hurley. Mr. Prettyman. Oh! Excuse me. I’m not ready with you yet Mr. Prettyman. Mr. Reynolds. I take it that you’re going to focus your argument as defend to the Court or specifically as it relates to this case.
William Bradford Reynolds: But, Your Honor I believe that my argument earlier were pertained equally to this case as it did to the former case, the general question of whether a Constitutional privilege should be recognized in First Amendment.
Warren E. Burger: All I had in mind is that you need not repeat your former arguments.
William Bradford Reynolds: No, I really contend that -- merely to make a couple of additional observations the -- noting that my former argument applies here equally. Our position is of course that no Constitutional privilege exist in the First Amendment now and when should not be recognized. I think a point that should be brought out is that even apart from that the arguments in this case is talking about a constitutional privilege focused on a particular test of some showing that the Government must make. Generally, a balancing test, that is exceedingly difficult to apply, a balancing test which is found nowhere with respect to any other personal privileges pertaining to personal relationships. Particularly, a distinction is made between serious and less serious crimes between what are called major crimes or victimless crime, I believe that’s how it’s characterized in the briefs. A distinction which as far as I can determine is wholly detached from legislative judgment that if Congress is seen fit to make a victimless crime as it’s referred to, that a crime as a matter of determination -- their legislative determination and its constitutional, we see no basis for drawing lines in formulating some constitutional rule which would distinguish between something that is a major crime as opposed to a victimless crime. Also, this rule turns on a showing by the Government that no other sources of information are available. But suppose you have an informer who’s unreliable and you want to call a reporter in order to show reliability or suppose the informer is in fact reliable but he would make a bad witness. Is this a situation where we should say that there are no other sources available? And that, what about the whole notion of cumulative evidence and the importance of that and how is a judge to measure whether or not cumulative evidence is or is not important in determining function of the Grand Jury. I take that this are extremely difficult questions in trying to formulate a test of a nature that’s proposed is as a matter of constitutional law. And then moreover, its as Mr. Prettyman has pointed out the balancing test is one that turns on the particular facts of each case, and ad hoc test, which seems to suggest that there would always be a litigable issue involved resulting in a substantial and considerable delay. And that such delays we feel make an important difference when you're talking about the Grand Jury process. Statutes of limitations run, you have problems of questions of speedy trial and determinations of that nature which make a difference, a substantial difference when you're talking about a Grand Jury as opposed to an investigation by a legislative committee where it is looking into the matters which result in legislation and seems that those considerations are important ones when you're trying to formulate some kind of a constitutional test. I will just point out that such delays can be avoided and probably would be avoided under the guidelines of the Attorney General as proposed. You would not have such litigable interruptions and we think that that is an important distinction between the constitutional proposition that was presented and the guidelines that were spoken of earlier.
Warren E. Burger: Thank you Mr. Reynolds. Mr. Prettyman, you have about three minutes.
E. Barrett Prettyman, Jr.: I have only two brief to points Your Honor. In response to Mr. Justice Stewart, my brother over here indicated that this was an incidence of Mr. Pappas silencing himself as the price of the story. There’s nothing improper on that. There was a case a few years ago where a camera crew went into a Massachusetts Mental Hospital and agreed in advance to keep in confidence not to publish the actual faces, names of people in their to preserve that confidence. You can imagine a labor leader, who is ill at home and the press is clamoring for an interview and he might say, “Come in, you can set-up your cameras, have an interview, but not in relation to my family. That’s anything you see or here there is in confidence. They are not part of the story.” This kind of thing, where you impose a confidence in regard to one thing in order to get at the larger story is very common and part of getting and disseminating news.
Speaker: But in this case, Mr. Prettyman, there never was a story, larger or smaller?
E. Barrett Prettyman, Jr.: But it was only about half instance that the raid didn’t come that night.
Speaker: Yes. I understand.
E. Barrett Prettyman, Jr.: And if there had been a raid that night, could we possibly say that the constitutional issue turns on the fact that the raid was there and he covered it and published it whereas -- because the police, perhaps even knew he was there, I don’t know, didn’t raid that night.
Speaker: My equation didn’t require this -- I thought there was any impropriety, I was just differentiating this case from the --
E. Barrett Prettyman, Jr.: Right.
Speaker: Other two and in so far as that in the other two cases, there were stories published in the newspaper.
E. Barrett Prettyman, Jr.: No questions about that. The only other thing I want to say is that I submit to you that it’s more important than an occasional indictment that an Earl Caldwell be allowed to do in-depth stories on the Black Panthers. Mr. Branzburg be allowed to show that hashish is available, readily available to kids in two counties in Kentucky. That Mr. Pappas be allowed to report a police raid from the inside. We know these stories would never get to the public if it were not for the confidentiality and for the fact, the people who gave them permission thought that they were entitled to impose a privilege. The justice concurring in the Knops case said it better than I could. I know of no period in history where any freedoms have flourished in the face of the states curtailment of the free flow of information, that’ s what we’re fighting for here.
Speaker: I -- Mr. Prettyman --
Warren E. Burger: Mr. Prettyman --
Speaker: Maybe you indicated it already but what in your view accounts for the fact that this basic question is arising now for the first time after almost 200 years since the -- is that a First Amendment and had a free press and had Grand Juries?
E. Barrett Prettyman, Jr.: Yes. I think there a number of factors, Your Honor. In the first place, I think there has been much agreement between prosecutors and newsmen over the years in the past. I think that in addition to that that there has been a flood of subpoenas more recently as we get into the problem of minorities and radical groups. We have our reporters today, doing things they never did before. Reporters themselves, I used to be one. I would tell you that our reporters today are much more investigative, more sophisticated, more daring. Here’s Pappas, he put his life on the line by being inside the headquarters in order to report from the inside. This, I think is of relatively recent origin when combined also with the concept on the part of the prosecutor that here is a man who is on the scene and who could provide an available investigative arm of the government. All these things have come to the front at a time, at a sudden time just in the way that perhaps in Griswold, the question which you think would go back for 100 years did not arise until that particular --
Speaker: It’s combination of things that have all caused at that same time?
E. Barrett Prettyman, Jr.: Combination, that’s correct. And as my brother suggested a few minutes ago, here in the course of a year and a half, NBC, CBS, we’re getting four subpoenas a month recently. They didn’t get those counter subpoenas back in the old days, 123 subpoenas between January of 1969 and July of 1970. And if this Court affirms this case, I can assure you that reporters will be spending a lot more time in Grand Juries and in courtrooms than they are in reporting from now on.
Warren E. Burger: Mr. Prettyman, another hypothetical since we’ve got to test all these propositions. Suppose on going into the headquarters, the reporter was horrified to find as I am sure you would horrified if he found what I’m about to suggest, a great arsenal that had 20 flame throwers, 50 machine guns, whole stack of automatic riffles, cases and boxes full of dynamite for making bombs. Your test would mean that he would have his lips sealed and he cannot tell that to the Grand Jury investigating this whole problem of potential disorder and civil disturbance?
E. Barrett Prettyman, Jr.: My test would mean only Your Honor that the Court might, in that instance, have little difficulty in indicating particularly if the ammunition had been used, had been part of some greater difficulty. Might have in balancing the interest, might well find in that case that the interest of the prosecutor and of the Grand Jury, if you will, overrode the First Amendment. But the privilege would come into effect, yes, because he was there and saw it under a confidential umbrella.
Warren E. Burger: Thank you Mr. Prettyman. Mr. --
Speaker: Mr. Prettyman, if I can bother you one more question?
E. Barrett Prettyman, Jr.: Certainly.
Speaker: I wondered about your reference to the Wiseman case and I think it was the Wiseman.
E. Barrett Prettyman, Jr.: It wasn’t, it’s a commonwealth [Voice Overlap].
Harry A. Blackmun: It was an example of the routine effect of an off the record or rather than an agreed plaintiff to filming. Here, the newsman is relying on the confidential agreement that the agreement as to confidence, there he broke and hence, I wonder whether you’re reference to it is rather an unfortunate one.
E. Barrett Prettyman, Jr.: No, I think if I may suggest it, it’s a very fortunate one, because the confidence was deemed to have such order in that case that they actually enforced it. In other words, if I’m using the case as an illustration that a confidence, would rather than being improper in a way to silence the reporter, it was in that case, a way of getting the larger story. And if they had abide it by their agreement that they had entered into and had taken films which did not show inmates without their permission then that would have been an instance of a story of great benefit to the public where they nevertheless could have gotten it only by agreeing to a confidentiality. Now, it so it happen that --
Speaker: What happens if the reporter made the deal and then wanted to break it?
E. Barrett Prettyman, Jr.: No question about it. That’s right. But I think the fact that he attempted to break it and in the Court saw it of such a high order just to enforce it by injunction.
Warren E. Burger: But did you not have some other intervening First Amendment rights of other people, the rights of these prisoners not to be on television, standing around in the nude as they were, herded almost in an animal-like fashion and great many other indignities, isn’t there a very great difference with the intervention of the individual rights of those prisoners?
E. Barrett Prettyman, Jr.: Quite true and you're going to have instances of clashes in these cases occasionally between with Sixth Amendment Right to call it an assist, First Amendment Right of the reporter. This is nothing new. These kinds of clashes and balances are quite common in constitutional adjudication. The kind that the courts face constantly and the courts are facing them right now below and finally, I might say, decided them in our favor.
Warren E. Burger: Thank you Mr. Prettyman. Thank you, Mr. Hurley. Thank you, Mr. Reynolds. This case is submitted.