The Burger Court (1969–86)

First Amendment

What did the Burger Court rule with respect to reporters’ privilege to withhold confidential sources?

The Burger Court ruled 5–4 in Branzburg v. Hayes (1972) that reporters do not have a First Amendment right to avoid testifying before a grand jury pursuant to a subpoena issued in good faith. The reporters involved in the cases contended that forcing reporters to testify and reveal their confidential sources would burden the reporters’ newsgathering efforts. The result, according to the press, would be that sources would be less willing to talk to reporters and the public would receive less information about important events. The government officials countered that the public’s compelling interest in combating crime outweighed any speculative harm on the reporters’ newsgathering process.

Justice Byron White reasoned that “we see no reason to hold that these reporters, any more than other citizens, should be excused from furnishing information that may help the grand jury in arriving at its initial determination.” The majority concluded that reporters were not entitled to any special constitutional-based privilege to avoid their civic duty to testify to grand juries than any other citizens.

Four justices dissented, with Justices Potter Stewart, William Douglas, and William Brennan, each writing separate opinions. Stewart’s opinion became the most influential. He said that before a reporter could be forced to testify before the grand jury regarding his or her confidential sources, the government must: (1) “show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.” Stewart’s opinion became the basis for many states to pass so-called reporter shield statutes, providing a degree of protection to reporters.


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