Back to Law & the Media home page
Back to FOI home page

Freedom of Information

The Shield Issue

On June 29, 1972, the United States Supreme Court decided by a 5-4 vote that reporters don’t have the constitutional right to withhold confidential information from grand juries.

The decision of the court:

The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury’s investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.

Three cases were consolidated in the opinion by the court. They have commonly become known as the Branzburg decision although the Earl Caldwell case was the best know of the three. 92 S. Ct. 2646 (1972)

The cases involved Caldwell, a reporter for The New York Times, Paul M. Branzburg, a reporter who was working for the Louisville Courier-Journal at the time of the incident, and Paul Pappas, a newsman-photographer for a New Bedford, Massachusetts, television station, WTEV-TV.

Caldwell refused to testify before the federal grand jury about information he obtained through interviews with members of the Black Panther Party.

Branzburg wrote a story describing the processing of hashish, withheld the names of the two persons he observed when called before a Kentucky grand jury.

Pappas was covering racial disturbance in New Bedford and was invited by the Black Panthers to enter local headquarters of the party when a police raid was expected. The invitation was made with the stipulation that he could take pictures but could not report anything else from inside the headquarters. The raid didn’t occur, so Pappas reporter nothing. He was called before a Massachusetts grand jury, but refused to appear.

In its opinion the Supreme Court said, “We are asked to create another (privilege) by interpreting the First Amendment to grant newsmen testimonial privilege that other citizens do not enjoy. This we decline to do.”

The court indicated Congress could create statutory provisions for reporter’s privilege and that states were free, within First Amendment limits, to fashion their own standards of privilege.

At the time 17 states had some type of statutory protection of confidential sources. More than half the states now have such laws. Congress has not, of this writing, enacted any law and neither has the legislature in Texas.

Bills were introduced in the Texas legislature in 1971 and 1973. The 1973 bills were part of the reform package that included the Open Records Act and the shoring up of the open meetings statute. But the shield bill bogged down and languished. In view of the uncertainty by newspeople about such a law, passage in Texas is unlikely.