U.S. Supreme Court Branzburg v. Hayes, 408
U.S. 665 (1972) Branzburg v. Hayes No. 70-85 Argued February 23,
1972 Decided June 29,
1972* 408
U.S. 665 CERTIORARI TO THE COURT OF APPEALS
OF KENTUCKY Syllabus 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. Pp. 408 U. S.
679 -709.

															No. 705, 461
S.W.2d 345 , and Kentucky Court of Appeals judgment in
unreported case of Branzburg v. Meigs, and No. 70-94, 358
Mass. 604, 266
N.E.2d 297 , affirmed; No. 70-57, 434 F.2d 1081, reversed.

															WHITE, J., wrote the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. POWELL, J.,
filed a concurring opinion, post, p. 408 U. S. 709 .
DOUGLAS, J., filed a dissenting opinion, post, p. 408 U. S. 711 .
STEWART, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined, post, p. 408 U. S.
725 . Page 408 U. S. 667 Opinion of the Court by MR. JUSTICE WHITE, announced by THE
CHIEF JUSTICE.

															The issue in these cases is whether requiring newsmen to appear
and testify before state or federal grand juries abridges the
freedom of speech and press guaranteed by the First Amendment. We
hold that it does not. I The writ of certiorari in No. 70-85, Branzburg v. Hayes and Meigs, brings before us two judgments of the Kentucky Court of
Appeals, both involving petitioner Branzburg, a staff reporter for
the Courier-Journal, a daily newspaper published in Louisville,
Kentucky.

															On November 15, 1969, the Courier-Journal carried a story under
petitioner's by-line describing in detail his observations of two
young residents of Jefferson County synthesizing hashish from
marihuana, an activity which, they asserted, earned them about
$5,000 in three weeks. The article included a photograph of a pair
of hands working above a laboratory table on which was a substance
identified by the caption as hashish. The article stated that
petitioner had promised not to Page 408 U. S. 668 reveal the identity of the two hashish makers. [ Footnote 1 ] Petitioner was shortly subpoenaed
by the Jefferson County grand jury; he appeared, but refused to
identify the individuals he had seen possessing marihuana or the
persons he had seen making hashish from marihuana. [ Footnote 2 ] A state trial court judge
[ Footnote 3 ] ordered petitioner
to answer these questions and rejected his contention that the
Kentucky reporters' privilege statute, Ky.Rev.Stat. § 421.100
(1962) [ Footnote 4 ] the First
Amendment of the United States Constitution, or §§ 1, 2, and 8 of
the Kentucky Constitution authorized his refusal to answer.
Petitioner then sought prohibition and mandamus in the Kentucky
Court of Appeals on the same ground, but the Court of Appeals
denied the petition. Branzburg v. Page 408 U. S. 669 Pound, 461
S.W.2d 345 (1970), as modified on denial of rehearing, Jan. 22, 1971. It held that petitioner had abandoned his First
Amendment argument in a supplemental memorandum he had filed and
tacitly rejected his argument based on the Kentucky Constitution.
It also construed Ky.Rev.Stat. § 421.100 as affording a newsman the
privilege of refusing to divulge the identity of an informant who
supplied him with information, but held that the statute did not
permit a reporter to refuse to testify about events he had observed
personally, including the identities of those persons he had
observed.

															The second case involving petitioner Branzburg arose out of his
later story published on January 10, 1971, which described in
detail the use of drugs in Frankfort, Kentucky. The article
reported that, in order to provide a comprehensive survey of the
"drug scene" in Frankfort, petitioner had "spent two weeks
interviewing several dozen drug users in the capital city," and had
seen some of them smoking marihuana. A number of conversations with
and observations of several unnamed drug users were recounted.
Subpoenaed to appear before a Franklin County grand jury "to
testify in the matter of violation of statutes concerning use and
sale of drugs," petitioner Branzburg moved to quash the summons;
[ Footnote 5 ] the motion was
denied, although Page 408 U. S. 670 an order was issued protecting Branzburg from revealing
"confidential associations, sources or information" but requiring
that he "answer any questions which concern or pertain to any
criminal act, the commission of which was actually observed by
[him]." Prior to the time he was slated to appear before the grand
jury, petitioner sought mandamus and prohibition from the Kentucky
Court of Appeals, arguing that, if he were forced to go before the
grand jury or to answer questions regarding the identity of
informants or disclose information given to him in confidence, his
effectiveness as a reporter would be greatly damaged. The Court of
Appeals once again denied the requested writs, reaffirming its
construction of Ky.Rev.Stat. § 421.100, and rejecting petitioner's
claim of a First Amendment privilege. It distinguished Caldwell
v. United States, 434 F.2d 1081 (CA9 1970), and it also
announced its "misgivings" about that decision, asserting that it
represented "a drastic departure from the generally recognized rule
that the sources of information of a newspaper reporter are not
privileged under the First Amendment." It characterized
petitioner's fear that his ability to obtain Page 408 U. S. 671 news would be destroyed as

															"so tenuous that it does not, in the opinion of this court,
present an issue of abridgement of the freedom of the press within
the meaning of that term as used in the Constitution of the United
States."

															Petitioner sought a writ of certiorari to review both judgments
of the Kentucky Court of Appeals, and we granted the writ.
[ Footnote 6 ] 402 U.S. 942
(1971). Page 408 U. S. 672 In re Pappas, No. 70-94, originated when petitioner
Pappas, a television newsman-photographer working out of the
Providence, Rhode Island, office of a New Bedford, Massachusetts,
television station, was called to New Bedford on July 30, 1970, to
report on civil disorders there which involved fires and other
turmoil. He intended to cover a Black Panther news conference at
that group's headquarters in a boarded-up store. Petitioner found
the streets around the store barricaded, but he ultimately gained
entrance to the area and recorded and photographed a prepared
statement read by one of the Black Panther leaders at about 3 p.m.
[ Footnote 7 ] He then asked for
and received permission to reenter the area. Returning at about 9
o'clock, he was allowed to enter and remain inside Panther
headquarters. As a condition of entry, Pappas agreed not to
disclose anything he saw or heard inside the store except an
anticipated police raid, which Pappas, "on his own," was free to
photograph and report as he wished. Pappas stayed inside the
headquarters for about three hours, but there was no police raid,
and petitioner wrote no story and did not otherwise reveal what had
occurred in the store while he was there. Two months later,
petitioner was summoned before the Bristol Page 408 U. S. 673 County Grand Jury and appeared, answered questions as to his
name, address, employment, and what he had seen and heard outside
Panther headquarters, but refused to answer any questions about
what had taken place inside headquarters while he was there,
claiming that the First Amendment afforded him a privilege to
protect confidential informants and their information. A second
summons was then served upon him, again directing him to appear
before the grand jury and "to give such evidence as he knows
relating to any matters which may be inquired of on behalf of the
Commonwealth before . . . the Grand Jury." His motion to quash on
First Amendment and other grounds was denied by the trial judge
who, noting the absence of a statutory newsman's privilege in
Massachusetts, ruled that petitioner had no constitutional
privilege to refuse to divulge to the grand jury what he had seen
and heard, including the identity of persons he had observed. The
case was reported for decision to the Supreme Judicial Court of
Massachusetts. [ Footnote 8 ] The
record there did not include a transcript of the hearing on the
motion to quash, nor did it reveal the specific questions
petitioner had refused to answer, the expected nature of his
testimony, the nature of the grand jury investigation, or the
likelihood of the grand jury's securing the information it sought
from petitioner by other means. [ Footnote 9 ] The Page 408 U. S. 674 Supreme Judicial Court, however, took

															"judicial notice that, in July, 1970, there were serious civil
disorders in New Bedford, which involved street barricades,
exclusion of the public from certain streets, fires, and similar
turmoil. We were told at the arguments that there was gunfire in
certain streets. We assume that the grand jury investigation was an
appropriate effort to discover and indict those responsible for
criminal acts."

															358 Mass. 604, 607, 266
N.E.2d 297 , 299 (1971). The court then reaffirmed prior
Massachusetts holdings that testimonial privileges were
"exceptional" and "limited," stating that "[t]he principle that the
public has a right to every man's evidence'" had usually been
preferred, in the Commonwealth, to countervailing interests. Ibid. The court rejected the holding of the Ninth Circuit
in Caldwell v. United States, supra, and "adhere[d] to the view that there exists no constitutional
newsman's privilege, either qualified or absolute, to refuse to
appear and testify before a court or grand jury. [ Footnote 10 ]"

															358 Mass. at 612, 266 N.E.2d at 302-303. Any adverse effect upon
the free dissemination of news by virtue of petitioner's being
called to testify was deemed to be only "indirect, theoretical, and
uncertain." Id. at 612, 266 N.E.2d at 302. The court
concluded that

															"[t]he obligation of newsmen . . . is that of every citizen . .
. to appear when summoned, with relevant written or other material
when required, and to answer relevant and reasonable
inquiries." Id. at 612, 266 N.E.2d at 303. The court nevertheless
noted that grand juries were subject to supervision by the
presiding Page 408 U. S. 675 judge, who had the duty "to prevent oppressive, unnecessary,
irrelevant, and other improper inquiry and investigation," ibid., to insure that a witness' Fifth Amendment rights
were not infringed, and to assess the propriety, necessity, and
pertinence of the probable testimony to the investigation in
progress. [ Footnote 11 ] The
burden was deemed to be on the witness to establish the impropriety
of the summons or the questions asked. The denial of the motion to
quash was affirmed, and we granted a writ of certiorari to
petitioner Pappas. 402 U.S. 942 (1971). United States v. Caldwell, No. 70-57, arose from
subpoenas issued by a federal grand jury in the Northern District
of California to respondent Earl Caldwell, a reporter for the New
York Times assigned to cover the Black Panther Party and other
black militant groups. A subpoena duces tecum was served
on respondent on February 2, 1970, ordering him to appear before
the grand jury to testify and to bring with him notes and tape
recordings of interviews given him for publication by officers and
spokesmen of the Black Panther Party concerning the aims, purposes,
and activities of that organization. [ Footnote 12 ] Respondent objected to the scope Page 408 U. S. 676 of this subpoena, and an agreement between his counsel and the
Government attorneys resulted in a continuance. A second subpoena,
served on March 16, omitted the documentary requirement and simply
ordered Caldwell "to appear . . . to testify before the Grand
Jury." Respondent and his employer, the New York Times, [ Footnote 13 ] moved to quash on the
ground that the unlimited breadth of the subpoenas and the fact
that Caldwell would have to appear in secret before the grand jury
would destroy his working relationship with the Black Panther Party
and "suppress vital First Amendment freedoms . . . by driving a
wedge of distrust and silence between the news media and the
militants." App. 7. Respondent argued that "so drastic an incursion
upon First Amendment freedoms" should not be permitted "in the
absence of a compelling governmental interest -- not shown here --
in requiring Mr. Caldwell's appearance before the grand jury." Ibid. The motion was supported by amicus curiae memoranda from other publishing concerns and by affidavits from
newsmen asserting the unfavorable impact on news sources of
requiring reporters to appear before grand juries. The Government
filed three memoranda in opposition to the motion to quash, each
supported by affidavits. These documents stated that the grand jury
was investigating, among other things, possible violations of a
number of criminal statutes, including 18 U.S.C. § 871 (threats
against the President), 18 U.S.C. Page 408 U. S. 677 § 1751 (assassination, attempts to assassinate, conspiracy to
assassinate the President), 18 U.S.C. § 231 (civil disorders), 18
U.S.C. § 2101 (interstate travel to incite a riot), and 18 U.S.C. §
1341 (mail frauds and swindles). It was recited that, on November
15, 1969, an officer of the Black Panther Party made a publicly
televised speech in which he had declared that "[w]e will kill
Richard Nixon" and that this threat had been repeated in three
subsequent issues of the Party newspaper. App. 66, 77. Also
referred to were various writings by Caldwell about the Black
Panther Party, including an article published in the New York Times
on December 14, 1969, stating that "[i]n their role as the vanguard
in a revolutionary struggle, the Panthers have picked up guns," and
quoting the Chief of Staff of the Party as declaring:

															"We advocate the very direct overthrow of the Government by way
of force and violence. By picking up guns and moving against it
because we recognize it as being oppressive and, in recognizing
that, we know that the only solution to it is armed struggle
[ sic ]."

															App. 62. The Government also stated that the Chief of Staff of
the Party had been indicted by the grand jury on December 3, 1969,
for uttering threats against the life of the President in violation
of 18 U.S.C. § 871, and that various efforts had been made to
secure evidence of crimes under investigation through the
immunization of persons allegedly associated with the Black Panther
Party.

															On April 6, the District Court denied the motion to quash, Application of Caldwell, 311 F.
Supp. 358 (ND Cal.1970), on the ground that " every
person within the jurisdiction of the government" is bound to
testify upon being properly summoned. Id. at 360 (emphasis
in original). Nevertheless, the court accepted respondent's First
Amendment arguments to the extent of issuing a protective order
providing that, although respondent had to divulge Page 408 U. S. 678 whatever information had been given to him for publication,
he

															"shall not be required to reveal confidential associations,
sources or information received, developed or maintained by him as
a professional journalist in the course of his efforts to gather
news for dissemination to the public through the press or other
news media."

															The court held that the First Amendment afforded respondent a
privilege to refuse disclosure of such confidential information
until there had been

															"a showing by the Government of a compelling and overriding
national interest in requiring Mr. Caldwell's testimony which
cannot be served by any alternative means." Id. at 362.

															Subsequently, [ Footnote
14 ] the term of the grand jury expired, a new grand jury was
convened, and a new subpoena ad testificandum was issued
and served on May 22, 1970. A new motion to quash by respondent and
memorandum in opposition by the Government were filed, and, by
stipulation of the parties, the motion was submitted on the prior
record. The court denied the motion to quash, repeating the
protective provisions in its prior order but this time directing
Caldwell to appear before the grand jury pursuant to the May 22
subpoena. Respondent refused to appear before the grand jury, and
the court issued an order to show cause why he should not be held
in contempt. Upon his further refusal to go before the grand jury,
respondent was ordered committed for contempt until such time as he
complied with the court's order or until the expiration of the term
of the grand jury. Page 408 U. S. 679 Respondent Caldwell appealed the contempt order, [ Footnote 15 ] and the Court of Appeals
reversed. Caldwell v. United States, 434 F.2d 1081 (CA9
1970). Viewing the issue before it as whether Caldwell was required
to appear before the grand jury at all, rather than the scope of
permissible interrogation, the court first determined that the
First Amendment provided a qualified testimonial privilege to
newsmen; in its view, requiring a reporter like Caldwell to testify
would deter his informants from communicating with him in the
future and would cause him to censor his writings in an effort to
avoid being subpoenaed. Absent compelling reasons for requiring his
testimony, he was held privileged to withhold it. The court also
held, for similar First Amendment reasons, that, absent some
special showing of necessity by the Government, attendance by
Caldwell at a secret meeting of the grand jury was something he was
privileged to refuse because of the potential impact of such an
appearance on the flow of news to the public. We granted the United
States' petition for certiorari. [ Footnote 16 ] 402 U.S. 942 (1971). II Petitioners Branzburg and Pappas and respondent Caldwell press
First Amendment claims that may be simply put: that, to gather
news, it is often necessary to agree either not to identify the
source of information published or to publish only part of the
facts revealed, or both; that, if the reporter is nevertheless Page 408 U. S. 680 forced to reveal these confidences to a grand jury, the source
so identified and other confidential sources of other reporters
will be measurably deterred from furnishing publishable
information, all to the detriment of the free flow of information
protected by the First Amendment. Although the newsmen in these
cases do not claim an absolute privilege against official
interrogation in all circumstances, they assert that the reporter
should not be forced either to appear or to testify before a grand
jury or at trial until and unless sufficient grounds are shown for
believing that the reporter possesses information relevant to a
crime the grand jury is investigating, that the information the
reporter has is unavailable from other sources, and that the need
for the information is sufficiently compelling to override the
claimed invasion of First Amendment interests occasioned by the
disclosure. Principally relied upon are prior cases emphasizing the
importance of the First Amendment guarantees to individual
development and to our system of representative government,
[ Footnote 17 ] decisions
requiring that official action with adverse impact on First
Amendment rights be justified by a public interest that is
"compelling" or "paramount," [ Footnote 18 ] and those precedents establishing the
principle that justifiable governmental goals may not be achieved
by unduly broad means having an unnecessary impact Page 408 U. S. 681 on protected rights of speech, press, or association. [ Footnote 19 ] The heart of the claim
is that the burden on news gathering resulting from compelling
reporters to disclose confidential information outweighs any public
interest in obtaining the information. [ Footnote 20 ]

															We do not question the significance of free speech, press, or
assembly to the country's welfare. Nor is it suggested that news
gathering does not qualify for First Amendment protection; without
some protection for seeking out the news, freedom of the press
could be eviscerated. But these cases involve no intrusions upon
speech or assembly, no prior restraint or restriction on what the
press may publish, and no express or implied command that the press
publish what it prefers to withhold. No exaction or tax for the
privilege of publishing, and no penalty, civil or criminal, related
to the content of published material is at issue here. The use of
confidential sources by the press is not forbidden or restricted;
reporters remain free to seek news from Page 408 U. S. 682 any source by means within the law. No attempt is made to
require the press to publish its sources of information or
indiscriminately to disclose them on request.

															The sole issue before us is the obligation of reporters to
respond to grand jury subpoenas as other citizens do, and to answer
questions relevant to an investigation into the commission of
crime. Citizens generally are not constitutionally immune from
grand jury subpoenas, and neither the First Amendment nor any other
constitutional provision protects the average citizen from
disclosing to a grand jury information that he has received in
confidence. [ Footnote 21 ]
The claim is, however, that reporters are exempt from these
obligations because, if forced to respond to subpoenas and identify
their sources or disclose other confidences, their informants will
refuse or be reluctant to furnish newsworthy information in the
future. This asserted burden on news gathering is said to make
compelled testimony from newsmen constitutionally suspect, and to
require a privileged position for them.

															It is clear that the First Amendment does not invalidate every
incidental burdening of the press that may result from the
enforcement of civil or criminal statutes of general applicability.
Under prior cases, otherwise valid laws serving substantial public
interests may be enforced against the press as against others,
despite Page 408 U. S. 683 the possible burden that may be imposed. The Court has
emphasized that

															"[t]he publisher of a newspaper has no special immunity from the
application of general laws. He has no special privilege to invade
the rights and liberties of others." Associated Press v. NLRB, 301 U.
S. 103 , 301 U. S.
132 -133 (1937). It was there held that the Associated
Press, a news-gathering and disseminating organization, was not
exempt from the requirements of the National Labor Relations Act.
The holding was reaffirmed in Oklahoma Press Publishing Co. v.
Walling, 327 U. S. 186 , 327 U. S.
192 -193 (1946), where the Court rejected the claim that
applying the Fair Labor Standards Act to a newspaper publishing
business would abridge the freedom of press guaranteed by the First
Amendment. See also Mabee v. White Plains Publishing Co., 327 U. S. 178 (1946). Associated Press v. United States, 326 U. S.
1 (1945), similarly overruled assertions that the First
Amendment precluded application of the Sherman Act to a
newsgathering and disseminating organization. Cf. Indiana
Farmer's Guide Publishing Co. v. Prairie Farmer Publishing
Co., 293 U. S. 268 , 293 U. S. 276 (1934); Citizen Publish in Co. v. United States, 394 U. S. 131 , 394 U. S. 139 (1969); Lorain Journal Co. v. United States, 342 U.
S. 143 , 342 U. S.
155 -156 (1951). Likewise, a newspaper may be subjected
to nondiscriminatory forms of general taxation. Grosjean v.
American Press Co., 297 U. S. 233 , 297 U. S. 250 (1936); Murdock v. Pennsylvania, 319 U.
S. 105 , 319 U. S. 112 (1943).

															The prevailing view is that the press is not free to publish
with impunity everything and anything it desires to publish.
Although it may deter or regulate what is said or published, the
press may not circulate knowing or reckless falsehoods damaging to
private reputation without subjecting itself to liability for
damages, including punitive damages, or even criminal prosecution. See New York Times Co. v. Sullivan, 376 U.
S. 254 , Page 408 U. S. 684 376 U. S.
279 -280 (1964); Garrison v. Louisiana, 379 U. S. 64 , 379 U. S. 74 (1964); Curtis Publishing Co. v. Butts, 388 U.
S. 130 , 388 U. S. 147 (1967) (opinion of Harlan, J.,); Monitor Patriot Co. v.
Roy, 401 U. S. 265 , 401 U. S. 277 (1971). A newspaper or a journalist may also be punished for
contempt of court, in appropriate circumstances. Craig v.
Harney, 331 U. S. 367 , 331 U. S.
377 -378 (1947).

															It has generally been held that the First Amendment does not
guarantee the press a constitutional right of special access to
information not available to the public generally. Zemel v.
Rusk, 381 U. S. 1 , 381 U. S. 16 -17
(1965); New York Times Co. v. United States, 403 U.
S. 713 , 403 U. S.
728 -730 (1971), (STEWART, J., concurring); Tribune
Review Publishing Co. v. Thomas, 254 F.2d 883, 885 (CA3 1958); In the Matter of United Press Assns. v.
Valente, 308 N.Y.
71 , 77, 123 N.E.2d 777, 778 (1954). In Zemel v. Rusk,
supra, for example, the Court sustained the Government's
refusal to validate passports to Cuba even though that restriction
"render[ed] less than wholly free the flow of information
concerning that country." Id. at 381 U. S. 16 . The
ban on travel was held constitutional, for "[t]he right to speak
and publish does not carry with it the unrestrained right to gather
information." Id. at 381 U. S. 17 .
[ Footnote 22 ]

															Despite the fact that news gathering may be hampered, the press
is regularly excluded from grand jury proceedings, our own
conferences, the meetings of other official bodies gathered in
executive session, and the meetings of private organizations.
Newsmen have no constitutional right of access to the scenes of
crime or Page 408 U. S. 685 disaster when the general public is excluded, and they may be
prohibited from attending or publishing information about trials if
such restrictions re necessary to assure a defendant a fair trial
before an impartial tribunal. In Sheppard v. Maxwell, 384 U. S. 333 (1966), for example, the Court reversed a state court conviction
where the trial court failed to adopt "stricter rules governing the
use of the courtroom by newsmen, as Sheppard's counsel requested,"
neglected to insulate witnesses from the press, and made no "effort
to control the release of leads, information, and gossip to the
press by police officers, witnesses, and the counsel for both
sides." Id. at 384 U. S. 358 , 384 U. S.
359 .

															"[T]he trial court might well have proscribed extrajudicial
statements by any lawyer, party, witness, or court official which
divulged prejudicial matters." Id. at 384 U. S. 361 . See also Estes v. Texas, 381 U. S. 532 , 381 U. S.
539 -540 (1965); Rideau v. Louisiana, 373 U. S. 723 , 373 U. S. 726 (1963).

															It is thus not surprising that the great weight of authority is
that newsmen are not exempt from the normal duty of appearing
before a grand jury and answering questions relevant to a criminal
investigation. At common law, courts consistently refused to
recognize the existence of any privilege authorizing a newsman to
refuse to reveal confidential information to a grand jury. See,
e.g., Ex Parte Lawrence, 116 Cal. 298, 48 P. 124 (1897); Plunkett v. Hamilton, 136 Ga. 72, 70 S.E. 781 (1911); Clein v. State, 52 So. 2d
117 (Fla.1950); In re Grunow, 84 N.J.L. 235, 85 A.
1011 (1913); People ex rel. Mooney v. Sheriff, 269 N.Y.
291, 199 N.E. 415 (1936); Joslyn v. People, 67 Colo. 297,
184 P. 375 (1919); Adams v. Associated Press, 46 F.R.D.
439 (SD Tex.1969); Brewster v. Boston Herald-Traveler
Corp., 20 F.R.D. 416 (Mass.1957). See generally Annot., 7 A.L.R.3d 591 (1966). In 1958, a news gatherer asserted
for the first time that the First Amendment Page 408 U. S. 686 exempted confidential information from public disclosure
pursuant to a subpoena issued in a civil suit, Garland v.
Torre, 259 F.2d 545 (CA2), cert. denied, 358 U.S. 910
(1958), but the claim was denied, and this argument has been almost
uniformly rejected since then, although there are occasional dicta
that, in circumstances not presented here, a newsman might be
excused. In re Goodfader, 45 Haw. 317, 367 P.2d 472 (1961); In re Taylor, 412 Pa. 32, 193 A.2d 181 (1963); State v. Buchanan, 250 Ore. 244, 436
P.2d 729 , cert. denied, 392 U.S. 905 (1968); Murphy v. Colorado (No.19604, Sup.Ct.Colo.), cert.
denied, 365 U.S. 843 (1961) (unreported, discussed in In
re Goodfader, supra, at 366, 367 P.2d at 498 (Mizuha, J.,
dissenting)). These courts have applied the presumption against the
existence of an asserted testimonial privilege, United States
v. Bryan, 339 U. S. 323 , 339 U. S. 331 (1950), and have concluded that the First Amendment interest
asserted by the newsman was outweighed by the general obligation of
a citizen to appear before a grand jury or at trial, pursuant to a
subpoena, and give what information he possesses. The opinions of
the state courts in Branzburg and Pappas are
typical of the prevailing view, although a few recent cases, such
as Caldwell, have recognized and given effect to some form
of constitutional newsman's privilege. See State v. Knops, 49 Wis.2d 647, 183 N.W.2d
93 (1971) (dictum); Alioto v. Cowles Communications,
Inc., C.A. No. 52150 (ND Cal.1969); In re Grand Jury
Witnesses, 322 F.
Supp. 573 (ND Cal.1970); People v. Dohrn, Crim. No.
69-3808 (Cook County, Ill., Cir. Ct.1970).

															The prevailing constitutional view of the newsman's privilege is
very much rooted in the ancient role of the grand jury that has the
dual function of determining if there is probable cause to believe
that a crime has been committed and of protecting citizens against
unfounded Page 408 U. S. 687 criminal prosecutions. [ Footnote 23 ] Grand jury proceedings are constitutionally
mandated for the institution of federal criminal prosecutions for
capital or other serious crimes, and "its constitutional
prerogatives are rooted in long centuries of Anglo-American
history." Hannah v. Larche, 363 U.
S. 420 , 363 U. S.
489 -490 (1960) (Frankfurter, J., concurring in result).
The Fifth Amendment provides that "[n]o person shall be held to
answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury." [ Footnote 24 ] The adoption of the grand jury "in
our Constitution as the sole method for preferring charges in
serious criminal cases shows the high place it held as an
instrument of justice." Costello v. United States, 350 U. S. 359 , 350 U. S. 362 (1956). Although state systems of criminal procedure differ greatly
among themselves, the grand jury is similarly guaranteed by many
state constitutions and plays an important role in fair and
effective law enforcement in the overwhelming Page 408 U. S. 688 majority of the States. [ Footnote 25 ] Because its task is to inquire into the
existence of possible criminal conduct and to return only well
founded indictments, its investigative powers are necessarily
broad.

															"It is a grand inquest, a body with powers of investigation and
inquisition, the scope of whose inquiries is not to be limited
narrowly by questions of propriety or forecasts of the probable
result of the investigation, or by doubts whether any particular
individual will be found properly subject to an accusation of
crime." Blair v. United States, 250 U.
S. 273 , 250 U. S. 282 (1919). Hence, the grand jury's authority to subpoena witnesses is
not only historic, id. at 250 U. S.
279 -281, but essential to its task. Although the powers
of the grand jury are not unlimited and are subject to the
supervision of a judge, the longstanding principle that "the public
. . . has a right to every man's evidence," except for those
persons protected by a constitutional, common law, or statutory
privilege, United States v. Bryan, 339 U.S. at 339 U. S. 331 ; Blackmer v. United States, 284 U.
S. 421 , 284 U. S. 438 (1932); 8 J. Wigmore, Evidence § 2192 (McNaughton rev.1961), is
particularly applicable to grand jury proceedings. [ Footnote 26 ] Page 408 U. S. 689 A number of States have provided newsmen a statutory privilege
of varying breadth, [ Footnote
27 ] but the majority have not done so, and none has been
provided by federal statute. [ Footnote 28 ] Until now, the only testimonial privilege
for unofficial witnesses that is rooted in the Federal
Constitution Page 408 U. S. 690 is the Fifth Amendment privilege against compelled
self-incrimination. We are asked to create another by interpreting
the First Amendment to grant newsmen a testimonial privilege that
other citizens do not enjoy. This we decline to do. [ Footnote 29 ] Fair and effective law
enforcement aimed at providing security for the person and property
of the individual is a fundamental function of government, and the
grand jury plays an important, constitutionally mandated role in
this process. On the records now before us, we perceive no basis
for holding hat the public interest in law enforcement and in
ensuring effective grand jury proceedings if insufficient to
override the consequential, but uncertain, burden on news gathering
that is said to result from insisting that reporters, like other
citizens, respond to relevant Page 408 U. S. 691 questions put to them in the course of a valid grand jury
investigation or criminal trial.

															This conclusion itself involves no restraint on what newspapers
may publish or on the type or quality of information reporters may
seek to acquire, nor does it threaten the vast bulk of confidential
relationships between reporters and their sources. Grand juries
address themselves to the issues of whether crimes have been
committed and who committed them. Only where news sources
themselves are implicated in crime or possess information relevant
to the grand jury's task need they or the reporter be concerned
about grand jury subpoenas. Nothing before us indicates that a
large number or percentage of all confidential news sources falls
into either category and would in any way be deterred by our
holding that the Constitution does not, as it never has, exempt the
newsman from performing the citizen's normal duty of appearing and
furnishing information relevant to the grand jury's task.

															The preference for anonymity of those confidential informants
involved in actual criminal conduct is presumably a product of
their desire to escape criminal prosecution, and this preference,
while understandable, is hardly deserving of constitutional
protection. It would be frivolous to assert -- and no one does in
these cases -- that the First Amendment, in the interest of
securing news or otherwise, confers a license on either the
reporter or his news sources to violate valid criminal laws.
Although stealing documents or private wiretapping could provide
newsworthy information, neither reporter nor source is immune from
conviction for such conduct, whatever the impact on the flow of
news. Neither is immune, on First Amendment grounds, from
testifying against the other, before the grand jury or at a
criminal trial. The Amendment does not reach so far as to override
the interest of the public in ensuring Page 408 U. S. 692 that neither reporter nor source is invading the rights of other
citizens through reprehensible conduct forbidden to all other
persons. To assert the contrary proposition

															"is to answer it, since it involves in its very statement the
contention that the freedom of the press is the freedom to do wrong
with impunity and implies the right to frustrate and defeat the
discharge of those governmental duties upon the performance of
which the freedom of all, including that of the press, depends. . .
. It suffices to say that, however complete is the right of the
press to state public things and discuss them, that right, as every
other right enjoyed in human society, is subject to the restraints
which separate right from wrongdoing." Toledo Newspaper Co. v. United States, 247 U.
S. 402 , 247 U. S.
419 -420 (1918). [ Footnote 30 ]

															Thus, we cannot seriously entertain the notion that the First
Amendment protects a newsman's agreement to conceal the criminal
conduct of his source, or evidence thereof, on the theory that it
is better to write about crime than to do something about it.
Insofar as any reporter in these cases undertook not to reveal or
testify about the crime he witnessed, his claim of privilege under
the First Amendment presents no substantial question. The crimes of
news sources are no less reprehensible and threatening to the
public interest when witnessed by a reporter than when they are
not. Page 408 U. S. 693 There remain those situations where a source is not engaged in
criminal conduct but has information suggesting illegal conduct by
others. Newsmen frequently receive information from such sources
pursuant to a tacit or express agreement to withhold the source's
name and suppress any information that the source wishes not
published. Such informants presumably desire anonymity in order to
avoid being entangled as a witness in a criminal trial or grand
jury investigation. They may fear that disclosure will threaten
their job security or personal safety, or that it will simply
result in dishonor or embarrassment.

															The argument that the flow of news will be diminished by
compelling reporters to aid the grand jury in a criminal
investigation is not irrational, nor are the records before us
silent on the matter. But 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. The
available data indicate that some newsmen rely a great deal on
confidential sources, and that some informants are particularly
sensitive to the threat of exposure, and may be silenced if it is
held by this Court that, ordinarily, newsmen must testify pursuant
to subpoenas, [ Footnote 31 ]
but the evidence fails to demonstrate that there would be a
significant constriction of the flow of news to the public if this
Court reaffirms the prior common law and constitutional rule
regarding the testimonial obligations of newsmen. Estimates of the
inhibiting effect of such subpoenas on the willingness of
informants to make disclosures to newsmen are widely divergent
and Page 408 U. S. 694 to a great extent speculative. [ Footnote 32 ] It would be difficult to canvass the views
of the informants themselves; surveys of reporters on this topic
are chiefly opinions of predicted informant behavior and must be
viewed in the light of the professional self-interest of the
interviewees. [ Footnote 33 ]
Reliance by the press on confidential informants does not mean that
all such sources will, in fact, dry up because of the later
possible appearance of the newsman before a grand jury. The
reporter may never be called, and, if he objects to testifying, the
prosecution may not insist. Also, the relationship of many
informants to the press is a symbiotic one which is unlikely to be
greatly inhibited by the threat of subpoena: quite often, such
informants are members of a minority political or cultural group
that Page 408 U. S. 695 relies heavily on the media to propagate its views, publicize
its aims, and magnify its exposure to the public. Moreover, grand
juries characteristically conduct secret proceedings, and law
enforcement officers are themselves experienced in dealing with
informers, and have their own methods for protecting them without
interference with the effective administration of justice. There is
little before us indicating that informants whose interest in
avoiding exposure is that it may threaten job security, personal
safety, or peace of mind, would in fact, be in a worse position, or
would think they would be, if they risked placing their trust in
public officials as well as reporters. We doubt if the informer who
prefers anonymity but is sincerely interested in furnishing
evidence of crime will always or very often be deterred by the
prospect of dealing with those public authorities
characteristically charged with the duty to protect the public
interest as well as his.

															Accepting the fact, however, that an undetermined number of
informants not themselves implicated in crime will nevertheless,
for whatever reason, refuse to talk to newsmen if they fear
identification by a reporter in an official investigation, we
cannot accept the argument that the public interest in possible
future news about crime from undisclosed, unverified sources must
take precedence over the public interest in pursuing and
prosecuting those crimes reported to the press by informants and in
thus deterring the commission of such crimes in the future.

															We note first that the privilege claimed is that of the
reporter, not the informant, and that, if the authorities
independently identify the informant, neither his own reluctance to
testify nor the objection of the newsman would shield him from
grand jury inquiry, whatever the impact on the flow of news or on
his future usefulness as a secret source of information. More
important, Page 408 U. S. 696 it is obvious that agreements to conceal information relevant to
commission of crime have very little to recommend them from the
standpoint of public policy. Historically, the common law
recognized a duty to raise the "hue and cry" and report felonies to
the authorities. [ Footnote
34 ] Misprision of a felony -- that is, the concealment of a
felony "which a man knows, but never assented to . . . [so as to
become] either principal or accessory," 4 W. Blackstone,
Commentaries *121, was often said to be a common law crime.
[ Footnote 35 ] The first
Congress passed a statute, 1 Stat. 113, § 6, as amended, 35 Stat.
1114, § 146, 62 Stat. 884, which is still in effect, defining a
federal crime of misprision:

															"Whoever, having knowledge of the actual commission of a felony
cognizable by a court of the United States, conceals and does not
as soon as possible make known the same to some judge or other
person in civil or military authority under the United States,
shall be [guilty of misprision]."

															18 U.S.C. § 4. [ Footnote
36 ] Page 408 U. S. 697 It is apparent from this statute, as well as from our history
and that of England, that concealment of crime and agreements to do
so are not looked upon with favor. Such conduct deserves no
encomium, and we decline now to afford it First Amendment
protection by denigrating the duty of a citizen, whether reporter
or informer, to respond to grand jury subpoena and answer relevant
questions put to him.

															Of course, the press has the right to abide by its agreement not
to publish all the information it has, but the right to withhold
news is not equivalent to a First Amendment exemption from the
ordinary duty of all other citizens to furnish relevant information
to a grand jury performing an important public function. Private
restraints on the flow of information are not so favored by the
First Amendment that they override all other public interests. As
Mr. Justice Black declared in another context,

															"[f]reedom of the press from governmental interference under the
First Amendment does not sanction repression of that freedom by
private interests." Associated Press v. United States, 326 U.S. at 326 U. S. 20 .

															Neither are we now convinced that a virtually impenetrable
constitutional shield, beyond legislative or judicial control,
should be forged to protect a private system of informers operated
by the press to report on criminal conduct, a system that would be
unaccountable to the public, would pose a threat to the citizen's
justifiable expectations of privacy, and would equally protect well
intentioned informants and those who for pay or otherwise betray
their trust to their employer or associates. The public, through
its elected and appointed Page 408 U. S. 698 law enforcement officers regularly utilizes informers, and in
proper circumstances may assert a privilege against disclosing the
identity of these informers. But

															"[t]he purpose of the privilege is the furtherance and
protection of the public interest in effective law enforcement. The
privilege recognizes the obligation of citizens to communicate
their knowledge of the commission of crimes to law enforcement
officials and, by preserving their anonymity, encourages them to
perform that obligation." Roviaro v. United States, 353 U. S.
53 , 353 U. S. 59 (1957). Such informers enjoy no constitutional protection. Their
testimony is available to the public when desired by grand juries
or at criminal trials; their identity cannot be concealed from the
defendant when it is critical to his case. Id. at 353 U. S. 60 -61,
62; McCray v. Illinois, 386 U. S. 300 , 386 U. S. 310 (1967); Smith v. Illinois, 390 U.
S. 129 , 390 U. S. 131 (1968); Alford v. United States, 282 U.
S. 687 , 282 U. S. 693 (1931). Clearly, this system is not impervious to control by the
judiciary and the decision whether to unmask an informer or to
continue to profit by his anonymity is in public, not private,
hands. We think that it should remain there and that public
authorities should retain the options of either insisting on the
informer's testimony relevant to the prosecution of crime or of
seeking the benefit of further information that his exposure might
prevent.

															We are admonished that refusal to provide a First Amendment
reporter's privilege will undermine the freedom of the press to
collect and disseminate news. But this is not the lesson history
teaches us. As noted previously, the common law recognized no such
privilege, and the constitutional argument was not even asserted
until 1958. From the beginning of our country the press has
operated without constitutional protection Page 408 U. S. 699 for press informants, and the press has flourished. The existing
constitutional rules have not been a serious obstacle to either the
development or retention of confidential news sources by the press.
[ Footnote 37 ]

															It is said that currently press subpoenas have multiplied,
[ Footnote 38 ] that mutual
distrust and tension between press and officialdom have increased,
that reporting styles have changed, and that there is now more need
for confidential sources, particularly where the press seeks news
about minority cultural and political groups or dissident
organizations suspicious of the law and public officials. These
developments, even if true, are treacherous grounds for a
far-reaching interpretation of the First Amendment fastening a
nationwide rule on courts, grand juries, and prosecuting officials
everywhere. The obligation to testify in response to grand jury
subpoenas will not threaten these sources not involved with
criminal conduct and without information relevant to grand jury
investigations, and we cannot hold that the Constitution places the
sources in these two categories either above the law or beyond its
reach.

															The argument for such a constitutional privilege rests heavily
on those cases holding that the infringement of protected First
Amendment rights must be no broader than necessary to achieve a
permissible governmental purpose, see cases cited at n 19, supra. We do
not deal, however, with a governmental institution that has
abused Page 408 U. S. 700 its proper function, as a legislative committee does when it
"expose[s] for the sake of exposure." Watkins v. United
States, 354 U. S. 178 , 354 U. S. 200 (157). Nothing in the record indicates that these grand juries were
"prob[ing] at will and without relation to existing need." DeGregory v. Attorney General of New Hampshire, 383 U. S. 825 , 383 U. S. 829 (1966). Nor did the grand juries attempt to invade protected First
Amendment rights by forcing wholesale disclosure of names and
organizational affiliations for a purpose that was not germane to
the determination of whether crime has been committed, cf.
NAACP v. Alabama, 357 U. S. 449 (1958); NAACP v. Button, 371 U. S. 415 (1963); Bates v. Little Rock, 361 U.
S. 516 (1960), and the characteristic secrecy of grand
jury proceedings is a further protection against the undue invasion
of such rights. See Fed.Rule Crim.Proc. 6(e). The
investigative power of the grand jury is necessarily broad if its
public responsibility is to be adequately discharged. Costello
v. United States, 350 U.S. at 350 U. S.
364 .

															The requirements of those cases, see n 18, supra, which hold that a
State's interest must be "compelling" or "paramount" to justify
even an indirect burden on First Amendment rights, are also met
here. As we have indicated, the investigation of crime by the grand
jury implements a fundamental governmental role of securing the
safety of the person and property of the citizen, and it appears to
us that calling reporters to give testimony in the manner and for
the reasons that other citizens are called "bears a reasonable
relationship to the achievement of the governmental purpose
asserted as its justification." Bates v. Little Rock,
supra, at 361 U. S. 525 .
If the test is that the government "convincingly show a substantial
relation between the information sought and a subject of overriding
and compelling state interest," Gibson v.
Florida Legislative Investigation Committee , Page 408 U. S. 701 372 U. S. 539 , 372 U. S. 546 (1963), it is quite apparent (1) that the State has the necessary
interest in extirpating the traffic in illegal drugs, in
forestalling assassination attempts on the President, and in
preventing the community from being disrupted by violent disorders
endangering both persons and property; and (2) that, based on the
stories Branzburg and Caldwell wrote and Pappas' admitted conduct,
the grand jury called these reporters as they would others --
because it was likely that they could supply information to help
the government determine whether illegal conduct had occurred and,
if it had, whether there was sufficient evidence to return an
indictment.

															Similar considerations dispose of the reporters' claims that
preliminary to requiring their grand jury appearance, the State
must show that a crime has been committed and that they possess
relevant information not available from other sources, for only the
grand jury itself can make this determination. The role of the
grand jury as an important instrument of effective law enforcement
necessarily includes an investigatory function with respect to
determining whether a crime has been committed and who committed
it. To this end it must call witnesses, in the manner best suited
to perform its task.

															"When the grand jury is performing its investigatory function
into a general problem area . . . society's interest is best served
by a thorough and extensive investigation." Wood v. Georgia, 370 U. S. 375 , 370 U. S. 392 (1962). A grand jury investigation

															"is not fully carried out until every available clue has been
run down and all witnesses examined in every proper way to find if
a crime has been committed." United States v. Stone, 429 F.2d 138, 140 (CA2 1970).
Such an investigation may be triggered by tips, rumors, evidence
proffered by the prosecutor, or the personal knowledge of the grand
jurors. Costello v. United States, 350 U.S. at 350 U. S. 362 .
It is Page 408 U. S. 702 only after the grand jury has examined the evidence that a
determination of whether the proceeding will result in an
indictment can be made.

															"It is impossible to conceive that in such cases the examination
of witnesses must be stopped until a basis is laid by an indictment
formally preferred, when the very object of the examination is to
ascertain who shall be indicted." Hale v. Henkel, 201 U. S. 43 , 201 U. S. 65 (1906). See also Hendricks v. United States, 223 U.
S. 178 (1912); Blair v. United States, 250 U.S.
at 250 U. S.
282 -283. 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
determinations.

															The privilege claimed here is conditional, not absolute; given
the suggested preliminary showings and compelling need, the
reporter would be required to testify. Presumably, such a rule
would reduce the instances in which reporters could be required to
appear, but predicting in advance when and in what circumstances
they could be compelled to do so would be difficult. Such a rule
would also have implications for the issuance of compulsory process
to reporters at civil and criminal trials and at legislative
hearings. If newsmen's confidential sources are as sensitive as
they are claimed to be, the prospect of being unmasked whenever a
judge determines the situation justifies it is hardly a
satisfactory solution to the problem. [ Footnote 39 ] For them, it would appear that only an
absolute privilege would suffice. Page 408 U. S. 703 We are unwilling to embark the judiciary on a long and difficult
journey to such an uncertain destination. The administration of a
constitutional newsman's privilege Page 408 U. S. 704 would present practical and conceptual difficulties of a high
order. Sooner or later, it would be necessary to define those
categories of newsmen who qualified for the privilege, a
questionable procedure in light of the traditional doctrine that
liberty of the press is the right of the lonely pamphleteer who
uses carbon paper or a mimeograph just as much as of the large
metropolitan publisher who utilizes the latest photocomposition
methods. Cf. In re Grand Jury Witnesses, 322 F.
Supp. 573 , 574 (ND Cal.1970). Freedom of the press is a
"fundamental personal right" which

															"is not confined to newspapers and periodicals. It necessarily
embraces pamphlets and leaflets. . . . The press in its historic
connotation comprehends every sort of publication which affords a
vehicle of information and opinion." Lovell v. Griffin, 303 U. S. 444 , 303 U. S. 450 , 303 U. S. 452 (138). See also Mills Page 408 U. S. 705 v. Alabama, 34 U.S. 214, 34 U. S. 219 (1966); Murdock v. Pennsylvania, 319 U.
S. 105 , 319 U. S. 111 (1943). The informative function asserted by representatives of the
organized press in the present cases is also performed by
lecturers, political pollsters, novelists, academic researchers,
and dramatists. Almost any author may quite accurately assert that
he is contributing to the flow of information to the public, that
he relies on confidential sources of information, and that these
sources will be silenced if he is forced to make disclosures before
a grand jury. [ Footnote
40 ]

															In each instance where a reporter is subpoenaed to testify, the
courts would also be embroiled in preliminary factual and legal
determinations with respect to whether the proper predicate had
been laid for the reporter's appearance: Is there probable cause to
believe a crime has been committed? Is it likely that the reporter
has useful information gained in confidence? Could the grand jury
obtain the information elsewhere? Is the official interest
sufficient to outweigh the claimed privilege?

															Thus, in the end, by considering whether enforcement of a
particular law served a "compelling" governmental interest, the
courts would be inextricably involved in Page 408 U. S. 706 distinguishing between the value of enforcing different criminal
laws. By requiring testimony from a reporter in investigations
involving some crimes but not in others, they would be making a
value judgment that a legislature had declined to make, since, in
each case, the criminal law involved would represent a considered
legislative judgment, not constitutionally suspect, of what conduct
is liable to criminal prosecution. The task of judges, like other
officials outside the legislative branch, is not to make the law,
but to uphold it in accordance with their oaths.

															At the federal level, Congress has freedom to determine whether
a statutory newsman's privilege is necessary and desirable and to
fashion standards and rules as narrow or broad as deemed necessary
to deal with the evil discerned and, equally important, to
refashion those rules as experience from time to time may dictate.
There is also merit in leaving state legislatures free, within
First Amendment limits, to fashion their own standards in light of
the conditions and problems with respect to the relations between
law enforcement officials and press in their own areas. It goes
without saying, of course, that we are powerless to bar state
courts from responding in their own way and construing their own
constitutions so as to recognize a newsman's privilege, either
qualified or absolute.

															In addition, there is much force in the pragmatic view that the
press has at its disposal powerful mechanisms of communication, and
is far from helpless to protect itself from harassment or
substantial harm. Furthermore, if what the newsmen urged in these
cases is true -- that law enforcement cannot hope to gain, and may
suffer from subpoenaing newsmen before grand juries -- prosecutors
will be loath to risk so much for so little. Thus, at the federal
level, the Attorney General has already fashioned a set of rules
for federal officials in connection Page 408 U. S. 707 with subpoenaing members of the press to testify before grand
juries or at criminal trials. [ Footnote 41 ] These rules are a major step in the
direction the reporters herein desire to move. They may prove
wholly sufficient to resolve the bulk of disagreements and
controversies between press and federal officials.

															Finally, as we have earlier indicated, news gathering is not
without its First Amendment protections, and grand jury
investigations, if instituted or conducted other than in good
faith, would pose wholly different issues for resolution under the
First Amendment. [ Footnote
42 ] Official harassment of the press undertaken not for
purposes of law enforcement, but to disrupt a reporter's
relationship Page 408 U. S. 708 with his news sources would have no justification. Grand juries
are subject to judicial control and subpoenas to motions to quash.
We do not expect courts will forget that grand juries must operate
within the limits of the First Amendment as well as the Fifth. III We turn, therefore, to the disposition of the cases before us.
From what we have said, it necessarily follows that the decision in United States v. Caldwell, No. 70-57, must be reversed. If
there is no First Amendment privilege to refuse to answer the
relevant and material questions asked during a good faith grand
jury investigation, then it is a fortiori true that there
is no privilege to refuse to appear before such a grand jury until
the Government demonstrates some "compelling need" for a newsman's
testimony. Other issues were urged upon us, but since they were not
passed upon by the Court of Appeals, we decline to address them in
the first instance.

															The decisions in No. 70-85, Branzburg v. Hayes and Branzburg v. Meigs, must be affirmed. Here, petitioner
refused to answer question that directly related to criminal
conduct that he had observed and written about. The Kentucky Court
of Appeals noted that marihuana is defined as a narcotic drug by
statute, Ky.Rev.Stat. § 218.010(14) (1962), and that unlicensed
possession or compounding of it is a felony punishable by both fine
and imprisonment. Ky.Rev.Stat. § 218.210 (1962). It held that
petitioner "saw the commission of the statutory felonies of
unlawful possession of marijuana and the unlawful conversion of it
into hashish," in Branzburg v. Pound, 461 S.W.2d at 346.
Petitioner may be presumed to have observed similar violations of
the state narcotics laws during the research he did for the story
that forms the basis of the subpoena in Branzburg v.
Meigs. In both cases, if what petitioner wrote was true, Page 408 U. S. 709 he had direct information to provide the grand jury concerning
the commission of serious crimes.

															The only question presented at the present time in In re
Pappas, No. 70-94, is whether petitioner Pappas must appear
before the grand jury to testify pursuant to subpoena. The
Massachusetts Supreme Judicial Court characterized the record in
this case as "meager," and it is not clear what petitioner will be
asked by the grand jury. It is not even clear that he will be asked
to divulge information received in confidence. We affirm the
decision of the Massachusetts Supreme Judicial Court and hold that
petitioner must appear before the grand jury to answer the
questions put to him, subject, of course, to the supervision of the
presiding judge as to "the propriety, purposes, and scope of the
grand jury inquiry and the pertinence of the probable testimony."
358 Mass. at 614, 266 N.E.2d at 303-304. So ordered. [ Footnote 1 ]

															he article contained the following paragraph:

															"'I don't know why I'm letting you do this story,' [one
informant] said quietly. 'To make the narcs (narcotics detectives)
mad, I guess. That's the main reason.' However, Larry and his
partner asked for and received a promise that their names would be
changed."

															App. 3-4.

															[ Footnote 2 ]

															The Foreman of the grand jury reported that petitioner Branzburg
had refused to answer the following two questions:

															"#1. On November 12, or 13, 1969, who was the person or persons
you observed in possession of Marijuana, about which you wrote an
article in the Courier-Journal on November 15, 1969?"

															"#2. On November 12, or 13, 1969, who was the person or persons
you observed compounding Marijuana, producing same to a compound
known as Hashish?"

															App. 6.

															[ Footnote 3 ]

															Judge J. Miles Pound. The respondent in this case, Hon. John P.
Hayes, is the successor of Judge Pound.

															[ Footnote 4 ]

															Ky.Rev.Stat. § 421.100 provides:

															"No person shall be compelled to disclose in any legal
proceeding or trial before any court, or before any grand or petit
jury, or before the presiding officer of any tribunal, or his agent
or agents, or before the General Assembly, or any committee
thereof, or before any city or county legislative body, or any
committee thereof, or elsewhere, the source of any information
procured or obtained by him, and published in a newspaper or by a
radio or television broadcasting station by which he is engaged or
employed, or with which he is connected."

															[ Footnote 5 ]

															Petitioner's Motion to Quash argued:

															"If Mr. Branzburg were required to disclose these confidences to
the Grand Jury, or any other person, he would thereby destroy the
relationship of trust which he presently enjoys with those in the
drug culture. They would refuse to speak to him; they would become
even more reluctant than they are now to speak to any newsman; and
the news media would thereby be vitally hampered in their ability
to cover that views and activities of those involved in the drug
culture."

															"The inevitable effect of the subpoena issued to Mr. Branzburg,
if it not be quashed by this Court, will be to suppress vital First
Amendment freedoms of Mr. Branzburg, of the Courier Journal, of the
news media, and of those involved in the drug culture by driving a
wedge of distrust and silence between the news media and the drug
culture. This Court should not sanction a use of its process
entailing so drastic an incursion upon First Amendment freedoms in
the absence of compelling Commonwealth interest in requiring Mr.
Branzburg's appearance before the Grand Jury. It is insufficient
merely to protect Mr. Branzburg's right to silence after he appears
before the Grand Jury. This Court should totally excuse Mr.
Branzburg from responding to the subpoena and even entering the
Grand Jury room. Once Mr. Branzburg is required to go behind the
closed doors of the Grand Jury room, his effectiveness as a
reporter in these areas is totally destroyed. The secrecy that
surrounds Grand Jury testimony necessarily introduces uncertainties
in the minds of those who fear a betrayal of their
confidences."

															App. 43-44.

															[ Footnote 6 ]

															After the Kentucky Court of Appeals' decision in Branzburg
v. Meigs was announced, petitioner filed a rehearing motion in Branzburg v. Pound suggesting that the court had not
passed upon his First Amendment argument and calling to the court's
attention the recent Ninth Circuit decision in Caldwell v.
United States, 434 F.2d 1081 (1970). On Jan. 22, 1971, the
court denied petitioner's motion and filed an amended opinion in
the case, adding a footnote, 461
S.W.2d 345 , 346 n. 1, to indicate that petitioner had abandoned
his First Amendment argument and elected to rely wholly on
Ky.Rev.Stat. § 421.100 when he filed a Supplemental Memorandum
before oral argument. In his Petition for Prohibition and Mandamus,
petitioner had clearly relied on the First Amendment, and he had
filed his Supplemental Memorandum in response to the State's
Memorandum in Opposition to the granting of the writs. As its title
indicates, this Memorandum was complementary to petitioner's
earlier Petition, and it dealt primarily with the State's
construction of the phrase "source of any information" in
Ky.Rev.Stat. § 421.100. The passage that the Kentucky Court of
Appeals cited to indicate abandonment of petitioner's First
Amendment claim is as follows:

															"Thus, the controversy continues as to whether a newsman's
source of information should be privileged. However, that question
is not before the Court in this case. The Legislature of Kentucky
has settled the issue, having decided that a newsman's source of
information is to be privileged. Because of this, there is no point
in citing Professor Wigmore and other authorities who speak against
the grant of such a privilege. The question has been many times
debated, and the Legislature has spoken. The only question before
the Court is the construction of the term 'source of information'
as it was intended by the Legislature."

															Though the passage itself is somewhat unclear, the surrounding
discussion indicates that petitioner was asserting here that the
question of whether a common law privilege should be recognized was
irrelevant, since the legislature had already enacted a statute. In
his earlier discussion, petitioner had analyzed certain cases in
which the First Amendment argument was made, but indicated that it
was not necessary to reach this question if the statutory phrase
"source of any information" were interpreted expansively. We do not
interpret this discussion as indicating that petitioner was
abandoning his First Amendment claim if the Kentucky Court of
Appeals did not agree with his statutory interpretation argument,
and we hold that the constitutional question in Branzburg v.
Pound was properly preserved for review.

															[ Footnote 7 ]

															Petitioner's news films of this event were made available to the
Bristol County District Attorney. App. 4.

															[ Footnote 8 ]

															The case was reported by the superior court directly to the
Supreme Judicial Court for an interlocutory ruling under
Mass.Gen.Laws, c. 278, § 30A and Mass.Gen.Laws, c. 231, § 111
(1959). The Supreme Judicial Court's decision appears at 358 Mass.
604, 266
N.E.2d 297 (1971).

															[ Footnote 9 ]

															"We do not have before us the text of any specific questions
which Pappas has refused to answer before the grand jury, or any
petition to hold him for contempt for his refusal. We have only
general statements concerning (a) the inquiries of the grand jury,
and (b) the materiality of the testimony sought from Pappas. The
record does not show the expected nature of his testimony or what
likelihood there is of being able to obtain that testimony from
persons other than news gatherers."

															358 Mass. at 606-607, 266 N.E.2d at 299 (footnote omitted).

															[ Footnote 10 ]

															The court expressly declined to consider, however, appearances
of newsmen before legislative or administrative bodies. Id. at 612 n. 10, 266 N.E.2d at 303 n. 10.

															[ Footnote 11 ]

															The court noted that "a presiding judge may consider in his
discretion" the argument that the use of newsmen as witnesses is
likely to result in unnecessary or burdensome use of their work
product, id. at 614 n. 13, 266 N.E.2d at 304 n. 13, and
cautioned that:

															"We do not suggest that a general investigation of mere
political or group association of persons, without substantial
relation to criminal events, may not be viewed by a judge in a
somewhat different manner from an investigation of particular
criminal events concerning which a newsman may have knowledge." Id. at 614 n. 14, 266 N.E.2d at 304 n. 14.

															[ Footnote 12 ]

															The subpoena ordered production of

															"[n]otes and tape recordings of interviews covering the period
from January 1, 1969, to date, reflecting statements made for
publication by officers and spokesmen for the Black Panther Party
concerning the aims and purposes of said organization and the
activities of said organization, its officers, staff, personnel,
and members, including specifically but not limited to interviews
given by David Hilliard and Raymond 'Masai' Hewitt."

															App. 20.

															[ Footnote 13 ]

															The New York Times was granted standing to intervene as a party
on the motion to quash the subpoenas. Application of
Caldwell, 311 F.
Supp. 358 , 359 (ND Cal, 1970). It did not file an appeal from
the District Court's contempt citation, and it did not seek
certiorari here. It has filed an amicus curiae brief,
however.

															[ Footnote 14 ]

															Respondent appealed from the District Court's April 6 denial of
his motion to quash on April 17, 1970, and the Government moved to
dismiss that appeal on the ground that the order was interlocutory.
On May 12, 1970, the Ninth Circuit dismissed the appeal without
opinion.

															[ Footnote 15 ]

															The Government did not file a cross-appeal, and did not
challenge the validity of the District Court protective order in
the Court of Appeals.

															[ Footnote 16 ]

															The petition presented a single question:

															"Whether a newspaper reporter who has published articles about
an organization can, under the First Amendment, properly refuse to
appear before a grand jury investigating possible crimes by members
of that organization who have been quoted in the published
articles."

															[ Footnote 17 ] Curtis Publishing Co. v. Butts, 388 U.
S. 130 , 388 U. S. 145 (1967) (opinion of Harlan, J.); New York Times Co. v.
Sullivan, 376 U. S. 254 , 376 U. S. 270 (1964); Talley v. California, 362 U. S.
60 , 362 U. S. 64 -65
(1960); Bridges v. California, 314 U.
S. 252 , 314 U. S. 263 (1941); Grosjean v. American Press Co., 297 U.
S. 233 , 297 U. S. 250 (1936); Near v. Minnesota, 283 U.
S. 697 , 283 U. S. 722 (1931).

															[ Footnote 18 ] NAACP v. Button, 371 U. S. 415 , 371 U. S. 439 (1963); Thomas v. Collins, 323 U.
S. 516 , 323 U. S. 530 (1945); DeGregory v. Attorney General of New Hampshire, 383 U. S. 825 , 383 U. S. 829 (1966); Bates v. Little Rock, 361 U.
S. 516 , 361 U. S. 524 (1960); Schneider v. State, 308 U.
S. 147 , 308 U. S. 161 (1939); NAACP v. Alabama, 357 U.
S. 449 , 357 U. S. 464 (1958).

															[ Footnote 19 ] Freedman v. Maryland, 380 U. S. 51 , 380 U. S. 56 (1965); NAACP v. Alabama, 377 U.
S. 288 , 377 U. S. 307 (1964); Martin v. City of Struthers, 319 U.
S. 141 , 319 U. S. 147 (1943); Elfbrandt v. Russell, 384 U. S.
11 , 384 U. S. 18 (1966).

															[ Footnote 20 ]

															There has been a great deal of writing in recent years on the
existence of a newsman's constitutional right of nondisclosure of
confidential information. See, e.g., Beaver, The Newsman's
Code, The Claim of Privilege and Everyman's Right to Evidence, 47
Ore.L.Rev. 243 (1968); Guest & Stanzler, The Constitutional
Argument for Newsmen Concealing Their Sources, 64 Nw.U.L.Rev. 18
(1969); Note, Reporters and Their Sources: The Constitutional Right
to a Confidential Relationship, 80 Yale L.J. 317 (1970); Comment,
The Newsman's Privilege: Government Investigations, Criminal
Prosecutions and Private Litigation, 58 Calif.L.Rev. 1198 (1970);
Note, The Right of the Press to Gather Information, 71 Col.L.Rev.
838 (1971); Nelson, The Newsmen's Privilege Against Disclosure of
Confidential Sources and Information, 24 Vand.L.Rev. 667
(1971).

															[ Footnote 21 ]

															"In general, then, the mere fact that a communication was made
in express confidence, or in the implied confidence of a
confidential relation, does not create a privilege."

															". . . No pledge of privacy nor oath of secrecy can avail
against demand for the truth in a court of justice."

															8 J. Wigmore, Evidence § 2286 (McNaughton rev.1961). This was
not always the rule at common law, however . In 17th century
England, the obligations of honor among gentlemen were occasionally
recognized as privileging from compulsory disclosure information
obtained in exchange for a promise of confidence. See Bulstrod
v. Letchmere, 2 Freem. 6, 22 Eng.Rep. 1019 (1676); Lord
Grey's Trial, 9 How.St.Tr. 127 (1682).

															[ Footnote 22 ]

															"There are few restrictions on action which could not be clothed
by ingenious argument in the garb of decreased data flow. For
example, the prohibition of unauthorized entry into the White House
diminishes the citizen's opportunities to gather information he
might find relevant to his opinion of the way the country is being
run, but that does not make entry into the White House a First
Amendment right."

															381 U.S. at 381 U. S.
117 .

															[ Footnote 23 ]

															"Historically, [the grand jury] has been regarded as a primary
security to the innocent against hasty, malicious and oppressive
persecution; it serves the invaluable function in our society of
standing between the accuser and the accused . . . to determine
whether a charge is founded upon reason or was dictated by an
intimidating power or by malice and personal ill will." Wood v. Georgia, 370 U. S. 375 , 370 U. S. 390 (1962) (footnote omitted).

															[ Footnote 24 ]

															It has been held that "infamous" punishments include confinement
at hard labor, United States v. Moreland, 258 U.
S. 433 (1922); incarceration in a penitentiary, Macking v. United States, 117 U.
S. 348 (1886); and imprisonment for more than a year, Barkman v. Sanford, 162 F.2d 592 (CA5), cert.
denied, 332 U.S. 816 (1947). Fed.Rule Crim.Proc. 7(a) has
codified these holdings:

															"An offense which may be punished by death shall be prosecuted
by indictment. An offense which may be punished by imprisonment for
a term exceeding one year or at hard labor shall be prosecuted by
indictment or, if indictment is waived, it may be prosecuted by
information. Any other offense may be prosecuted by indictment or
by information."

															[ Footnote 25 ]

															Although indictment by grand jury is not part of the due process
of law guaranteed to state criminal defendants by the Fourteenth
Amendment, Hurtado v. California, 110 U.
S. 516 (1884), a recent study reveals that 32 States
require that certain kinds of criminal prosecutions be initiated by
indictment. Spain, The Grand Jury, Past and Present: A Survey, 2
Am.Crim. L.Q. 119, 126-142 (1964). In the 18 States in which the
prosecutor may proceed by information, the grand jury is retained
as an alternative means of invoking the criminal process and as an
investigative tool. Ibid. [ Footnote 26 ]

															Jeremy Bentham vividly illustrated this maxim:

															"Are men of the first rank and consideration -- are men high in
office -- men whose time is not less valuable to the public than to
themselves -- are such men to be forced to quit their business,
their functions, and what is more than all, their pleasure, at the
beck of every idle or malicious adversary, to dance attendance upon
every petty cause? Yes, as far as it is necessary, they and
everybody. Were the Prince of Wales, the Archbishop of Canterbury,
and the Lord High Chancellor, to be passing by in the same coach,
while a chimney-sweeper and a barrow-woman were in dispute about a
halfpennyworth of apples, and the chimney-sweeper or the
barrowwoman were to think proper to call upon them for their
evidence, could they refuse it? No, most certainly."

															4 The Works of Jeremy Bentham 320-321 (J. Bowring ed. 1843). In United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC
Va. 1807), Chief Justice Marshall, sitting on Circuit, opined that,
in proper circumstances, a subpoena could be issued to the
President of the United States.

															[ Footnote 27 ]

															Thus, far, 17 States have provided some type of statutory
protection to a newsman's confidential sources:

															Ala.Code, Tit. 7, § 370 (1960); Alaska Stat. §09.25.150 (Supp.
1971); Ariz.Rev.Stat.Ann. § 12-2237 (Supp. 1971-1972);
Ark.Stat.Ann. § 43-917 (1964); Cal. Evid.Code § 1070 (Supp. 1972);
Ind.Ann.Stat. § 2-1733 (1968); Ky.Rev.Stat. § 421.100 (1962);
La.Rev.Stat.Ann. §§ 45:1451-45:1454 (Supp. 1972); Md.Ann.Code, Art.
35, § 2 (1971); Mich.Comp.Laws § 767.5a (Supp. 1956),
Mich.Stat.Ann. § 28.945(1) (1954); Mont.Rev.Codes Ann. § 93-601-2
(1964); Nev.Rev.Stat. § 49.275 (1971); N.J.Rev.Stat. §§ 2A:84A-21,
2A:84A-29 (Supp. 1972-1973); N.M.Stat.Ann. § 20-1-12.1 (1970); N.Y.
Civ. Rights Law § 79-h (Supp 1971-1972); Ohio Rev.Code Ann. §
2739.12 (1954); Pa.Stat.Ann., Tit. 28, § 330 (Supp. 1972-1973).

															[ Footnote 28 ]

															Such legislation has been introduced, however. See,
e.g., S. 1311, 92d Cong., 1st Sess. (1971); S. 3552, 91st
Cong., 2d Sess. (1970); H.R. 16328, H R. 16704, 91st Cong., 2d
Sess. (1970); S. 1851, 88th Cong., 1st Sess. (1963); H.R. 8519,
H.R. 7787, 88th Cong., 1st Sess. (1963); S. 965, 86th Cong., 1st
Sess. (1959); H.R. 355, 86th Cong., 1st Sess. (1959). For a general
analysis of proposed congressional legislation, see Staff
of Senate Committee on the Judiciary, 89th Cong., 2d Sess., The
Newsman's Privilege (Comm.Print 1966).

															[ Footnote 29 ]

															The creation of new testimonial privileges has been met with
disfavor by commentators, since such privileges obstruct the search
for truth. Wigmore condemns such privileges as "so many derogations
from a positive general rule [that everyone is obligated to testify
when properly summoned]" and as "obstacle[s] to the administration
of justice." 8 J. Wigmore, Evidence § 2192 (McNaughton rev.1961).
His criticism that " all privileges of exemption from this duty
are exceptional, and are therefore to be discountenanced," id. at § 2192, p. 73 (emphasis in original) has been
frequently echoed. Morgan, Foreword, Model Code of Evidence 22-30
(1942); 2 Z. Chafee, Government and Mass Communications 496-497
(1947); Report of ABA Committee on Improvements in the Law of
Evidence, 63 A.B.A. Reports 595 (1938); C. McCormick, Evidence 159
(2d ed.1972); Chafee, Privileged Communications: Is Justice Served
or Obstructed by Closing the Doctor's Mouth on the Witness Stand?,
52 Yale L.J. 607 (1943); Ladd, Privileges, 1969 Law & the
Social Order 555, 556; 58 Am.Jur., Witnesses § 546 (1948); 97
C.J.S., Witnesses § 259 (1957); McMann v. Securities and Exchange
Commission, 87 F.2d 377, 378 (CA2 1937) (L. Hand, J.). Neither the
ALI's Model Code of Evidence (1942), the Uniform Rules of Evidence
of the National Conference of Commissioners on Uniform State Laws
(1953), nor the Proposed Rules of Evidence for the United States
Courts and Magistrates (rev. ed.1971) has included a newsman's
privilege.

															[ Footnote 30 ]

															The holding in this case involved a construction of the Contempt
of Court Act of 1831, 4 Stat. 487, which permitted summary trial of
contempts "so near [to the court] as to obstruct the administration
of justice." The Court held that the Act required only that the
conduct have a "direct tendency to prevent and obstruct the
discharge of judicial duty." 247 U.S. at 247 U. S. 419 .
This view was overruled and the Act given a much narrower reading
in Nye v. United States, 313 U. S. 33 , 313 U. S. 47 -52
(1941). See Bloom v. Illinois, 391 U.
S. 194 , 391 U. S.
205 -206 (1968).

															[ Footnote 31 ]

															Respondent Caldwell attached a number of affidavits from
prominent newsmen to his initial motion to quash, which detail the
experiences of such journalists after they have been subpoenaed.
Appendix to No. 757, pp. 221.

															[ Footnote 32 ] Cf., e.g., the results of a study conducted by Guest
& Stanzler, which appears as an appendix to their article, supra, n 20. A
number of editors of daily newspapers of varying circulation were
asked the question,

															"Excluding one- or two-sentence gossip items, on the average,
how many stories based on information received in confidence are
published in your paper each year? Very rough estimate."

															Answers varied significantly, e.g., "Virtually
innumerable," Tucson Daily Citizen (41,969 daily circ.), "Too many
to remember," Los Angeles Herald-Examiner (718,221 daily circ.),
"Occasionally," Denver Post (252,084 daily circ.), "Rarely,"
Cleveland Plain Dealer (370,499 daily circ.), "Very rare, some
politics," Oregon Journal (146,403 daily circ.). This study did not
purport to measure the extent of deterrence of informants caused by
subpoenas to the press.

															[ Footnote 33 ]

															In his Press Subpoenas: An Empirical and Legal Analysis, Study
Report of the Reporters' Committee on Freedom of the Press 12,
Prof. Vince Blasi discusses these methodological problems. Prof.
Blasi's survey found that slightly more than half of the 975
reporters questioned said that they relied on regular confidential
sources for at least 10% of their stories. Id. at 21. Of
this group of reporters, only 8% were able to say with some
certainty that their professional functioning had been adversely
affected by the threat of subpoena; another 11% were not certain
whether or not they had been adversely affected. Id. at
53.

															[ Footnote 34 ] See Statute of Westminster First, 3 Edw. 1, c. 9, p. 43
(1275); Statute of Westminster Second, 13 Edw. 1, c. 6, pp. 114-115
(1285); Sheriffs Act of 1887, 50 & 51 Vict., c. 55, § 8(1); 4
W. Blackstone, Commentaries *293-295; 2 W. Holdsworth, History of
English Law 80-81, 101-102 (3d ed.1927); 4 id. at
521-522.

															[ Footnote 35 ] See, e.g., Scope's Case, referred to in 3 Coke's
Institute 36; Rex v. Cowper, 5 Mod. 206, 87 Eng.Rep. 611
(1696); Proceedings under a Special Commission for the County of
York, 31 How.St.Tr. 965, 969 (1813); Sykes v. Director of
Public Prosecutions, [1961] 3 W.L.R. 371. But see Glazebrook, Misprision of Felony -- Shadow or Phantom?, 8
Am.J.Legal Hist. 189 (1964). See also Act 5 & 6 Edw.
6, c. 11 (1552).

															[ Footnote 36 ]

															This statute has been construed, however, to require both
knowledge of a crime and some affirmative act of concealment or
participation. Bratton v. United States, 73 F.2d 795 (CA10
1934); United States v. Farrar, 38 F.2d
515 , 516 (Mass.), aff'd on other grounds, 281 U.
S. 624 (1930); United States v. Norman, 391
F.2d 212 (CA6), cert. denied, 390 U.S. 1014 (1968); Lancey v. United States, 356 F.2d 407 (CA9), cert.
denied, 385 U.S. 922 (1966). Cf. 20 U.
S. Brooks, 7 Wheat. 556, 20 U. S. 575 (1822) (Marshall, C.J.).

															[ Footnote 37 ]

															Though the constitutional argument for a newsman's privilege has
been put forward very recently, newsmen have contended for a number
of years that such a privilege was desirable. See, e.g., Siebert & Ryniker, Press Winning Fight to Guard Sources, Editor
& Publisher, Sept. 1, 1934, pp. 9, 36-37; G. Bird & F.
Merwin, The Press and Society 592 (1971). The first newsman's
privilege statute was enacted by Maryland in 1896, and currently is
codified as Md.Ann.Code, Art. 35, § 2 (1971).

															[ Footnote 38 ]

															A list of recent subpoenas to the news media is contained in the
appendix to the brief of amicus New York Times in No.
757.

															[ Footnote 39 ]

															"Under the case-by-case method of developing rules, it will be
difficult for potential informants and reporters to predict whether
testimony will be compelled, since the decision will turn on the
judge's ad hoc assessment in different fact settings of
'importance' or 'relevance' in relation to the free press interest.
A 'general' deterrent effect is likely to result. This type of
effect stems from the vagueness of the tests and from the
uncertainty attending their application. For example, if a
reporter's information goes to the 'heart of the matter' in
Situation X, another reporter and informant who subsequently are in
Situation Y will not know if 'heart of the matter rule X' will be
extended to them, and deterrence will thereby result. Leaving
substantial discretion with judges to delineate those 'situations'
in which rules of 'relevance' or 'importance' apply would therefore
seem to undermine significantly the effectiveness of a
reporter-informer privilege."

															Note, Reporters and Their Sources: The Constitutional Right to a
Confidential Relationship, 80 Yale L.J. 317, 341 (1970). In re Grand Jury Witnesses, 322 F.
Supp. 573 (ND Cal.1970), illustrates the impact of this ad
hoc approach. Here, the grand jury was, as in Caldwell, investigating the Black Panther Party, and
was

															"inquiring into matters which involve possible violations of
Congressional acts passed to protect the person of the President
(18 U.S.C. § 1751), to free him from threats (18 U.S.C. § 871), to
protect our armed forces from unlawful interference (18 U.S.C. §
2387), conspiracy to commit the foregoing offenses (18 U.S.C. §
371), and related statutes prohibiting acts directed against the
security of the government." Id. at 577. The two witnesses, reporters for a Black
Panther Party newspaper, were subpoenaed and given Fifth Amendment
immunity against criminal prosecution, and they claimed a First
Amendment journalist's privilege. The District Court entered a
protective order, allowing them to refuse to divulge confidential
information until the Government demonstrated "a compelling and
overriding national interest in requiring the testimony of [the
witnesses] which cannot be served by any alternative means." Id. at 574. The Government claimed that it had information
that the witnesses had associated with persons who had conspired to
perform some of the criminal acts that the grand jury was
investigating. The court held the Government had met its burden and
ordered the witnesses to testify:

															"The whole point of the investigation is to identify persons
known to the [witnesses] who may have engaged in activities
violative of the above indicated statutes, and also to ascertain
the details of their alleged unlawful activities. All questions
directed to such objectives of the investigation are unquestionably
relevant, and any other evaluation thereof by the Court without
knowledge of the facts before the Grand Jury would clearly
constitute 'undue interference of the Court.'" Id. at 577.

															Another illustration is provided by State v. Knops, 49
Wis.2d 647, 183 N.W.2d
93 (1971), in which a grand jury was investigating the August
24, 1970, bombing of Sterling Hall on the University of Wisconsin
Madison campus. On August 26, 1970, an "underground" newspaper, the
Madison Kaleidoscope, printed a front-page story entitled "The
Bombers Tell Why and What Next -- Exclusive to Kaleidoscope." An
editor of the Kaleidoscope was subpoenaed, appeared, asserted his
Fifth Amendment right against self-incrimination, was given
immunity, and then pleaded that he had a First Amendment privilege
against disclosing his confidential informants. The Wisconsin
Supreme Court rejected his claim and upheld his contempt
sentence:

															"[Appellant] faces five very narrow and specific questions, all
of which are founded on information which he himself has already
volunteered. The purpose of these questions is very clear. The need
for answers to them is 'overriding,' to say the least. The need for
these answers is nothing short of the public's need (and right) to
protect itself from physical attack by apprehending the
perpetrators of such attacks."

															49 Wis.2d at 658, 183 N.W.2d at 98-99.

															[ Footnote 40 ]

															Such a privilege might be claimed by group that set up
newspapers in order to engage in criminal activity and to therefore
be insulated from grand jury inquiry, regardless of Fifth Amendment
grants of immunity. It might appear that such "ham" newspaper would
be easily distinguishable, yet the First Amendment ordinarily
prohibits courts from inquiring into the content of expression,
except in cases of obscenity or libel, and protects speech and
publication regardless of their motivation, orthodoxy,
truthfulness, timeliness, or taste. New York Times Co. v.
Sullivan, 376 U.S. at 376 U. S. 269 -270; Kingsley Pictures Corp. v.
Regents, 360 U. S. 684 , 360 U. S. 689 (1959); Winters v. New York, 333 U.
S. 507 , 333 U. S. 510 (1948); Thomas v. Collins, 323 U.S. at 323 U. S. 537 .
By affording a privilege to some organs of communication but not to
others, court would inevitably be discriminating on the basis of
content.

															[ Footnote 41 ]

															The Guidelines for Subpoenas to the News Media were first
announced in a speech by the Attorney General on August 10, 1970,
and then were expressed in Department of Justice Memo. No. 692
(Sept. 2, 1970), which was sent to all United States Attorneys by
the Assistant Attorney General in charge of the Criminal Division.
The Guidelines state that:

															"The Department of Justice recognizes that compulsory process in
some circumstances may have a limiting effect on the exercise of
First Amendment rights. In determining whether to request issuance
of a subpoena to the press, the approach in every case must be to
weigh that limiting effect against the public interest to be served
in the fair administration of justice,"

															and that:

															"The Department of Justice does not consider the press 'an
investigative arm of the government.' Therefore, all reasonable
attempts should be made to obtain information from non-press
sources before there is any consideration of subpoenaing the
press."

															The Guidelines provide for negotiations with the press, and
require the express authorization of the Attorney General for such
subpoenas. The principles to be applied in authorizing such
subpoenas are stated to be whether there is "sufficient reason to
believe that the information sought [from the journalist] is
essential to a successful investigation" and whether the Government
has unsuccessfully attempted to obtain the information from
alternative non-press sources. The Guidelines provide, however,
that, in "emergencies and other unusual situations," subpoenas may
be issued which do not exactly conform to the Guidelines.

															[ Footnote 42 ] Cf. Younger v. Harris, 401 U. S.
37 , 401 U. S. 49 , 401 U. S. 53 -54
(1971).

															MR. JUSTICE POWELL, concurring.

															I add this brief statement to emphasize what seems to me to be
the limited nature of the Court's holding. The Court does not hold
that newsmen, subpoenaed to testify before a grand jury, are
without constitutional rights with respect to the gathering of news
or in safeguarding their sources. Certainly, we do not hold, as
suggested in MR. JUSTICE STEWART's dissenting opinion, that state
and federal authorities are free to "annex" the news media as "an
investigative arm of government." The solicitude repeatedly shown
by this Court for First Amendment freedoms should be sufficient
assurance against any such effort, even if one seriously believed
that the media -- properly free and untrammeled in the fullest
sense of these terms -- were not able to protect themselves.

															As indicated in the concluding portion of the opinion, the Court
states that no harassment of newsmen will Page 408 U. S. 710 be tolerated. If a newsman believes that the grand jury
investigation is not being conducted in good faith, he is not
without remedy. Indeed, if the newsman is called upon to give
information bearing only a remote and tenuous relationship to the
subject of the investigation, or if he has some other reason to
believe that his testimony implicates confidential source
relationships without a legitimate need of law enforcement, he will
have access to the court on a motion to quash, and an appropriate
protective order may be entered. The asserted claim to privilege
should be judged on its facts by the striking of a proper balance
between freedom of the press and the obligation of all citizens to
give relevant testimony with respect to criminal conduct. The
balance of these vital constitutional and societal interests on a
case-by-case basis accords with the tried and traditional way of
adjudicating such questions. * In short, the courts will be available to newsmen under
circumstances where legitimate First Amendment interests require
protection. Page 408 U. S. 711 * It is to be remembered that Caldwell asserts a constitutional
privilege not even to appear before the grand jury unless a court
decides that the Government has made a showing that meets the three
preconditions specified in the dissenting opinion of MR. JUSTICE
STEWART. To be sure, this would require a "balancing" of interests
by the court, but under circumstances and constraints significantly
different from the balancing that will be appropriate under the
court's decision. The newsman witness, like all other witnesses,
will have to appear; he will not be in a position to litigate at
the threshold the State's very authority to subpoena him. Moreover,
absent the constitutional preconditions that Caldwell and that
dissenting opinion would impose as heavy burdens of proof to be
carried by the State, the court -- when called upon to protect a
newsman from improper or prejudicial questioning -- would be free
to balance the competing interests on their merits in the
particular case. The new constitutional rule endorsed by that
dissenting opinion would, as a practical matter, defeat such a fair
balancing and the essential societal interest in the detection and
prosecution of crime would be heavily subordinated.

															MR. JUSTICE DOUGLAS, dissenting in No. 757, 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 Page 408 U. S. 712 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 questions. Page 408 U. S. 713 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 , 357 U. S. 463 ; Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539 ; Baird v. State Bar of Arizona, 401 U. S.
1 , 401 U. S. 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 which 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. [ Footnote 2/1 ] 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:
[ Footnote 2/2 ]

															"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 Page 408 U. S. 714 of the first ten amendments. They are not a 'Bill of Rights,'
but a 'Bill of Powers and Rights.' The Second through the Ninth
Amendments 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,' [ Footnote 2/3 ]"

															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. [ Footnote 2/4 ]"

															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 viewpoint. Page 408 U. S. 715 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 reexamination. 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 354 U. S.
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 , 319 U. S. 642 ; Baird v. State Bar of Arizona, 401 U.S. at 401 U. S. 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. Page 408 U. S. 716 Alabama, 357 U.S. at 357 U. S. 462 ; NAACP v. Button, 371 U. S. 415 .

															As I said in Gibson v. Florida Legislative Investigation
Committee, 372 U.S. at 372 U. S.
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, [ Footnote 2/5 ] and
later under the influence of the "balancing" formula, [ Footnote 2/6 ] the Page 408 U. S. 717 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," [ Footnote 2/7 ] must be
"compelling," and not Page 408 U. S. 718 merely "rational" as is the case where other activities are
concerned. [ Footnote 2/8 ] But the
"compelling" interest in regulation neither includes paring down or
diluting the right nor Page 408 U. S. 719 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 , 310 U. S.
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. [ Footnote
2/9 ]"

															Under these precedents, there is no doubt that Caldwell could
not be brought before the grand jury for the sole purpose of
exposing 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 Page 408 U. S. 720 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 , 250 U. S. 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 80 watered down that
the danger had to be neither clear nor present, but merely "not
improbable." Dennis v. United States, 341 U.
S. 494 , 341 U. S. 510 . See my concurring opinion in Brandenburg v. Ohio, 395 U. S. 444 , 395 U. S. 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 360 U. S. 106 .
The majority, however, found that "the governmental interest in
self-preservation is sufficiently compelling to subordinate the
interest in associational privacy. . . ." Id. at 360 U. S. 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 Page 408 U. S. 721 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 , 403 U. S. 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 , 337 U. S. 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
preconceptions Page 408 U. S. 722 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. [ Footnote 2/10 ] Page 408 U. S. 723 The record in this case is replete with weighty affidavits from
responsible newsmen, telling how important is the sanctity of their
sources of information. [ Footnote
2/11 ] 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). Page 408 U. S. 724 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. [ Footnote 2/12 ] 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. 408 U. S. 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 perpetuate Page 408 U. S. 725 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.
785, Branzburg v. Hayes, and No. 794, In re
Pappas, for the reasons stated in the above dissent in No.
757, United States v. Caldwell. [ Footnote 2/1 ]

															"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.

															[ Footnote 2/2 ]

															The First Amendment Is An Absolute, 191 Sup.Ct.Rev. 245,
254.

															[ Footnote 2/3 ] Id. at 255.

															[ Footnote 2/4 ] Id. at 257.

															[ Footnote 2/5 ] 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 , 395 U. S.
450 .

															[ Footnote 2/6 ] 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 , 360 U. S. 79 , 81
(preserving security of New Hampshire from subversives outweighs
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 , 365 U. S. 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).

															[ Footnote 2/7 ]

															Thus, we have held "overbroad" measures which unduly restricted
the time, place, and manner of expression. Schneider v.
State, 308 U. S. 147 , 308 U. S. 161 (anti-leafleting law); Thornhill v. Alabama, 310 U. S.
88 , 310 U. S. 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 , 403 U. S. 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 adverted to the absence of a compelling justification for
attempted intrusions into philosophical or associational privacy. Bates v. Little Rock, 361 U. S. 516 , 361 U. S. 523 (disclosure of NAACP membership lists to city officials); Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539 , 372 U. S. 546 (disclosure of NAACP membership list to state legislature); DeGregory v. Attorney General of New Hampshire, 383 U. S. 825 , 383 U. S. 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 , 401 U. S. 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 nag). 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 , 366 U. S. 296 (disclosure of NAACP membership lists); Whitehill v.
Elkins, 389 U. S. 54 , 389 U. S. 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.
1 54, 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.

															[ Footnote 2/8 ]

															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 , 304 U. S. 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 .

															[ Footnote 2/9 ]

															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 , 384 U. S. 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.

															[ Footnote 2/10 ]

															"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).

															[ Footnote 2/11 ]

															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 408 U. S. 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 .

															[ Footnote 2/12 ]

															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).

															MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE MARSHALL join, dissenting.

															The Court's crabbed view of the First Amendment reflect a
disturbing insensitivity to the critical role of an independent
press in our society. The question whether a reporter has a
constitutional right to a confidential relationship with his source
is of first impression here, but the principles that should guide
our decision are as basic as any to be found in the Constitution.
While MR. JUSTICE POWELL's enigmatic concurring opinion gives some
hope of a more flexible view in the future, the Court in these
cases holds that a newsman has no First Amendment right to protect
his sources when called before a grand jury. The Court thus invites
state and federal authorities to undermine the historic
independence of the press by attempting to annex the journalistic
profession as an investigative arm of government. Not only will
this decision impair performance of the press' constitutionally
protected functions, but it will, I am convinced, in the long run
harm, rather than help, the administration of justice.

															I respectfully dissent. I The reporter's constitutional right to a confidential
relationship with his source stem from the broad societal interest
in a full and free flow of information to the public. It is this
basic concern that underlie the Constitution's Page 408 U. S. 726 protection of a free press, Grosjean v. American Press
Co., 297 U. S. 233 , 297 U. S. 250 ; New York Times Co. v. Sullivan, 376 U.
S. 254 , 376 U. S. 269 ,
[ Footnote 3/1 ] because the
guarantee is "not for the benefit of the press so much as for the
benefit of all of us." Time, Inc. v. Hill, 385 U.
S. 374 , 385 U. S. 389 .
[ Footnote 3/2 ] Enlightened choice
by an informed citizenry is the basic ideal upon which an open
society is premised, [ Footnote 3/3 ]
and a free press is thus indispensable to a free society. Not only
does the press enhance personal self-fulfillment Page 408 U. S. 727 by providing the people with the widest possible range of fact
and opinion, but it also is an incontestable precondition of
self-government. The press

															"has been a mighty catalyst in awakening public interest in
governmental affairs, exposing corruption among public officers and
employees and generally informing the citizenry of public events
and occurrences. . . ." Estes v. Texas, 381 U. S. 532 , 381 U. S. 539 ; Mills v. Alabama, 384 U. S. 214 , 384 U. S. 219 ; Grosjean, supra, at 297 U. S. 250 .
As private and public aggregations of power burgeon in size and the
pressures for conformity necessarily mount, there is obviously a
continuing need for an independent press to disseminate a robust
variety of information and opinion through reportage,
investigation, and criticism, if we are to preserve our
constitutional tradition of maximizing freedom of choice by
encouraging diversity of expression. A In keeping with this tradition, we have held that the right to
publish is central to the First Amendment and basic to the
existence of constitutional democracy. Grosjean, supra, at 297 U. S. 250 ; New York Times, supra, at 403 U. S.
270 .

															A corollary of the right to publish must be the right to gather
news. The full flow of information to the public protected by the
free press guarantee would be severely curtailed if no protection
whatever were afforded to the process by which news is assembled
and disseminated. We have, therefore, recognized that there is a
right to publish without prior governmental approval, Near v.
Minnesota, 283 U. S. 697 ; New York Times Co. v. United States, 403 U.
S. 713 , a right to distribute information, see,
e.g., Lovell v. Griffin, 303 U. S. 444 , 303 U. S. 452 ; Marsh v. Alabama, 326 U. S. 501 ; Martin v. City of Struthers, 319 U.
S. 141 ; Grosjean, supra, and a right to receive
printed matter, Lamont v. Postmaster General, 381 U.
S. 301 . Page 408 U. S. 728 No less important to the news dissemination process is the
gathering of information. News must not be unnecessarily cut off at
its source, for without freedom to acquire information, the right
to publish would be impermissibly compromised. Accordingly, a right
to gather news, of some dimensions, must exist. Zemel v.
Rusk, 381 U. S. 1 .
[ Footnote 3/4 ] Note, The Right of
the Press to Gather Information, 71 Col.L.Rev. 838 (1971). As
Madison wrote: "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." 9 Writings of James Madison 103 (G. Hunt
ed.1910). B The right to gather news implies, in turn, a right to a
confidential relationship between a reporter and his source. This
proposition follows as a matter of simple logic once three factual
predicates are recognized: (1) newsmen require informants to gather
news; (2) confidentiality -- the promise or understanding that
names or certain aspects of communications will be kept off the
record -- is essential to the creation and maintenance of a
newsgathering relationship with informants; and (3) an unbridled
subpoena power -- the absence of a constitutional right protecting,
in any way, a confidential relationship from compulsory process --
will either deter source from divulging information or deter
reporters from gathering and publishing information. Page 408 U. S. 729 It is obvious that informants are necessary to the
news-gathering process as we know it today. If it is to perform its
constitutional mission, the press must do far more than merely
print public statements or publish prepared handouts. Familiarity
with the people and circumstances involved in the myriad background
activities that result in the final product called "news" is vital
to complete and responsible journalism, unless the press is to be a
captive mouthpiece of "newsmakers." [ Footnote 3/5 ]

															It is equally obvious that the promise of confidentiality may be
a necessary prerequisite to a productive relationship between a
newsman and his informants. An officeholder may fear his superior;
a member of the bureaucracy, his associates; a dissident, the scorn
of majority opinion. All may have information valuable to the
public discourse, yet each may be willing to relate that
information only in confidence to a reporter whom he trusts, either
because of excessive caution or because of a reasonable fear of
reprisals or censure for unorthodox Page 408 U. S. 730 views. The First Amendment concern must not be with the motives
of any particular news source, but rather with the conditions in
which informants of all shades of the spectrum may make information
available through the press to the public. Cf. Talley v.
California, 362 U. S. 60 , 362 U. S. 65 ; Bates v. Little Rock, 361 U. S. 516 ; NAACP v. Alabama, 357 U. S. 449 .
[ Footnote 3/6 ]

															In Caldwell, the District Court found that

															"confidential relationships . . . are commonly developed and
maintained by professional journalists, and are indispensable to
their work of gathering, analyzing and publishing the news.
[ Footnote 3/7 ]"

															Commentators and individual reporters have repeatedly noted the
importance of confidentiality. [ Footnote 3/8 ] Page 408 U. S. 731 And surveys among reporters and editors indicate that the
promise of nondisclosure is necessary for many types of news
gathering. [ Footnote 3/9 ]

															Finally, and most important, when governmental officials possess
an unchecked power to compel newsmen to disclose information
received in confidence, sources will clearly be deterred from
giving information, and reporters will clearly be deterred from
publishing it, because uncertainty about exercise of the power will
lead to "self-censorship." Smith v. California, 361 U. S. 147 , 361 U. S.
149 -154; New York Times Co. v. Sullivan, 376
U.S. at 376 U. S. 279 .
The uncertainty arises, of course, because the judiciary has
traditionally imposed virtually no limitations on the grand jury's
broad investigatory powers. See Antell, The Modern Grand
Jury: Benighted Supergovernment, 51 A.B.A.J. 153 (1965). See
also 408 U. S. infra. After today's decision, the potential informant can never be
sure that his identity or off-the-record communications will not
subsequently be revealed through the compelled testimony of a
newsman. A public-spirited person inside government, who is not
implicated in any crime, will now be fearful of revealing
corruption or other governmental wrongdoing, because he will now
know he can subsequently be identified by use of compulsory
process. The potential source must, therefore, choose between
risking exposure by giving information or avoiding the risk by
remaining silent.

															The reporter must speculate about whether contact with a
controversial source or publication of controversial material will
lead to a subpoena. In the event of a Page 408 U. S. 732 subpoena, under today's decision, the newsman will know that he
must choose between being punished for contempt if he refuses to
testify or violating his profession's ethic [ Footnote 3/10 ] and impairing his resourcefulness as a
reporter if he discloses confidential information. [ Footnote 3/11 ]

															Again, the common sense understanding that such deterrence will
occur is buttressed by concrete evidence. The existence of
deterrent effects through fear and self-censorship was impressively
developed in the District Court in Caldwell. [ Footnote 3/12 ] Individual reporters
[ Footnote 3/13 ] and commentators
[ Footnote 3/14 ] have noted such
effects. Surveys have verified that an unbridled subpoena power
will substantially Page 408 U. S. 733 impair the flow of news to the public, especially in sensitive
areas involving governmental officials, financial affairs,
political figures, dissidents, or minority groups that require
in-depth, investigative reporting. [ Footnote 3/15 ] And the Justice Department has
recognized that "compulsory process in some circumstances may have
a limiting effect on the exercise of First Amendment rights."
[ Footnote 3/16 ] No evidence
contradicting the existence of such deterrent effects was offered
at the trials or in the briefs here by the petitioner in Caldwell
or by the respondents in Branzburg and Pappas. The impairment of the flow of news cannot, of course, be proved
with scientific precision, as the Court seems to demand. Obviously,
not every news gathering relationship requires confidentiality. And
it is difficult to pinpoint precisely how many relationships do
require a promise or understanding of nondisclosure. But we have
never before demanded that First Amendment rights rest on elaborate
empirical studies demonstrating beyond any conceivable doubt that
deterrent effects exist; we have never before required proof of the
exact number of people potentially affected by governmental action
who would actually be dissuaded from engaging in First Amendment
activity.

															Rather, on the basis of common sense and available information,
we have asked, often implicitly, (1) whether there was a rational
connection between the cause (the governmental action) and the
effect (the deterrence or Page 408 U. S. 734 impairment of First Amendment activity), and (2) whether the
effect would occur with some regularity, i.e., would not
be de minimis. See, e.g., Grosjean v. American Press
Co., 297 U.S. at 297 U. S.
244 -245; Burstyn, Inc. v. Wilson, 343 U.
S. 495 , 343 U. S. 503 ; Sweezy v. New Hampshire, 354 U. S. 234 , 354 U. S. 248 (plurality opinion); NAACP v. Alabama, 357 U.S. at 357 U. S.
461 -466; Smith v. California, 361 U.S. at 361 U. S.
150 -154; Bates v. Little Rock, 361 U.S. at 361 U. S.
523 -524; Talley v. California, 362 U.S. at 362 U. S. 64 -65; Shelton v. Tucker, 364 U. S. 479 , 364 U. S.
485 -486; Cramp v. Board of Public Instruction, 368 U. S. 278 , 368 U. S. 286 ; NAACP v. Button, 371 U. S. 415 , 371 U. S.
431 -438; Gibson v. Florida Legislative Investigation
Committee, 372 U. S. 539 , 372 U. S.
555 -557; New York Times Co. v. Sullivan, 376
U.S. at 376 U. S.
277 -278; Freedman v. Maryland, 380 U. S.
51 , 380 U. S. 59 ; DeGregory v. New Hampshire Attorney General, 383 U.
S. 825 ; Elfbrandt v. Russell, 384 U. S.
11 , 16-19. And, in making this determination, we have
shown a special solicitude toward the "indispensable liberties"
protected by the First Amendment, NAACP v. Alabama, supra, at 357 U. S. 461 ; Bantam Books, Inc. v. Sullivan, 372 U. S.
58 , 372 U. S. 66 ,
for

															"[f]reedoms such as these are protected not only against
heavy-handed frontal attack, but also from being stifled by more
subtle governmental interference." Bates, supra, at 361 U. S. 523 .
[ Footnote 3/17 ] Once this
threshold inquiry has been satisfied, we have then examined the
competing interests in determining whether Page 408 U. S. 735 there is an unconstitutional infringement of First Amendment
freedoms.

															For example, in NAACP v. Alabama, supra, we found that
compelled disclosure of the names of those in Alabama who belonged
to the NAACP

															"is likely to affect adversely the ability [of the NAACP] and
its members to pursue their . . . beliefs which they admittedly
have the right to advocate, in that it may induce members to
withdraw from the Association and dissuade others from joining it
because of fear of exposure of their beliefs shown through their
associations and of the consequences of this exposure." Id. at 357 U. S.
462 -463. In Talley, supra, we held invalid a
city ordinance that forbade circulation of any handbill that did
not have the distributor's name on it, for there was

															"no doubt that such an identification requirement would tend to
restrict freedom to distribute information, and thereby freedom of
expression." Id. at 362 U. S. 64 .
And in Burstyn, Inc., supra, we found deterrence of First
Amendment activity inherent in a censor's power to exercise
unbridled discretion under an overbroad statute. Id. at 343 U. S.
503 .

															Surely the analogous claim of deterrence here is as securely
grounded in evidence and common sense as the claims in the cases
cited above, although the Court calls the claim "speculative." See ante at 408 U. S. 694 .
The deterrence may not occur in every confidential relationship
between a reporter and his source. [ Footnote 3/18 ] But it will certainly Page 408 U. S. 736 occur in certain types of relationships involving sensitive and
controversial matters. And such relationships are vital to the free
flow of information.

															To require any greater burden of proof is to shirk our duty to
protect values securely embedded in the Constitution. We cannot
await an unequivocal -- and therefore unattainable -- imprimatur
from empirical studies. [ Footnote
3/19 ] We can and must accept the evidence developed in the
record, and elsewhere, that overwhelmingly supports the premise
that deterrence will occur with regularity in important types of
news-gathering relationships. [ Footnote 3/20 ]

															Thus, we cannot escape the conclusion that, when neither the
reporter nor his source can rely on the shield of confidentiality
against unrestrained use of the grand jury's subpoena power,
valuable information will not be published and the public dialogue
will inevitably be impoverished. II Posed against the First Amendment's protection of the newsman's
confidential relationships in these cases is society's interest in
the use of the grand jury to administer Page 408 U. S. 737 justice fairly and effectively. The grand jury serves two
important functions: "to examine into the commission of crimes"
and

															"to stand between the prosecutor and the accused, and to
determine whether the charge was founded upon credible testimony or
was dictated by malice or personal ill will." Hale v. Henkel, 201 U. S. 43 , 201 U. S. 59 .
And to perform these functions, the grand jury must have available
to it every man's relevant evidence. See Blair v. United
States, 250 U. S. 273 , 250 U. S. 281 ; Blackmer v. United States, 284 U.
S. 421 , 284 U. S.
438 .

															Yet the longstanding rule making every person's evidence
available to the grand jury is not absolute. The rule has been
limited by the Fifth Amendment, [ Footnote 3/21 ] the Fourth Amendment, [ Footnote 3/22 ] and the evidentiary privileges of
the common law. [ Footnote 3/23 ]
So it was that, in Blair, supra, after recognizing that
the right against compulsory self-incrimination prohibited certain
inquiries, the Court noted that

															"some confidential matters are shielded from considerations of
policy, and perhaps in other cases, for special reasons, a
witness may be excused from telling all that he knows." Id. at 250 U. S. 281 (emphasis supplied). And in United States v. Bryan, 339 U. S. 323 , the
Court observed that any exemption from the duty to testify before
the grand jury "presupposes a very real interest to be protected." Id. at 339 U. S.
332 .

															Such an interest must surely be the First Amendment protection
of a confidential relationship that I have discussed above in Part
I. As noted there, this protection does not exist for the purely
private interests of the Page 408 U. S. 738 newsman or his informant, nor even, at bottom, for the First
Amendment interests of either partner in the newsgathering
relationship. [ Footnote 3/24 ]
Rather, it functions to insure nothing less than democratic
decisionmaking through the free flow of information to the public,
and it serves, thereby, to honor the "profound national commitment
to the principle that debate on public issues should be
uninhibited, robust, and wide-open." New York Times Co. v.
Sullivan, 376 U.S. at 376 U. S. 270 .

															In striking the proper balance between the public interest in
the efficient administration of justice and the First Amendment
guarantee of the fullest flow of information, we must begin with
the basic proposition that, because of their "delicate and
vulnerable" nature, NAACP v. Button, 371 U.S. at 371 U. S. 433 ,
and their transcendent importance for the just functioning of our
society, First Amendment rights require special safeguards. A This Court has erected such safeguards when government, by
legislative investigation or other investigative means, has
attempted to pierce the shield of privacy inherent in freedom of
association. [ Footnote 3/25 ] In
no previous case have we considered the extent to which the First
Amendment limits the grand jury subpoena power. But the Page 408 U. S. 739 Court has said that

															"[t]he Bill of Rights is applicable to investigations, as to all
forms of governmental action. Witnesses cannot be compelled to give
evidence against themselves. They cannot be subjected to
unreasonable search and seizure. Nor can the First Amendment
freedoms of speech, press . . . or political belief and association
be abridged." Watkins v. United States, 354 U.
S. 178 , 354 U. S. 188 .
And, in Sweezy v. New Hampshire, it was stated:

															"It is particularly important that the exercise of the power of
compulsory process be carefully circumscribed when the
investigative process tends to impinge upon such highly sensitive
areas as freedom of speech or press, freedom of political
association, and freedom of communication of ideas."

															354 U.S. at 354 U. S. 245 (plurality opinion).

															The established method of "carefully" circumscribing
investigative powers is to place a heavy burden of justification on
government officials when First Amendment rights are impaired. The
decisions of this Court have

															"consistently held that only a compelling state interest in the
regulation of a subject within the State's constitutional power to
regulate can justify limiting First Amendment freedoms." NAACP v. Button, 371 U.S. at 371 U. S. 438 .
And

															"it is an essential prerequisite to the validity of an
investigation which intrudes into the area of constitutionally
protected rights of speech, press, association and petition that
the State convincingly show a substantial relation between the
information sought and a subject of overriding and compelling state
interest. " Gibson v. Florida Legislative Investigation Committee, 372 U.S. at 372 U. S. 546 (emphasis supplied). See also DeGregory v. Attorney General of
New Hampshire, 383 U. S. 825 ; NAACP v. Alabama, 357 U. S. 449 ; Sweezy, supra; Watkins, supra. Thus, when an investigation impinges on First Amendment rights,
the government must not only show that Page 408 U. S. 740 the inquiry is of "compelling and overriding importance," but it
must also "convincingly" demonstrate that the investigation is
"substantially related"to the information sought.

															Governmental officials must, therefore, demonstrate that the
information sought is clearly relevant to a precisely defined subject of governmental inquiry. Watkins, supra;
Sweezy, supra. [ Footnote
3/26 ] They must demonstrate that it is reasonable to think the
witness in question has that information. Sweezy, supra;
Gibson, supra. [ Footnote
3/27 ] And they must show that there is not any means of
obtaining the information less destructive of First Amendment
liberties. Sheldon v. Tucker, 364 U.S. at 364 U. S. 488 ; Louisiana ex rel. Gremillion v. NAACP, 366 U.
S. 293 , 366 U. S. 297 .
[ Footnote 3/28 ]

															These requirements, which we have recognized in decisions
involving legislative and executive investigations, serve
established policies reflected in numerous First Page 408 U. S. 741 Amendment decisions arising in other contexts. The requirements
militate against vague investigations that, like vague laws, create
uncertainty and needlessly discourage First Amendment activity.
[ Footnote 3/29 ] They also insure
that a legitimate governmental purpose will not be pursued by means
that "broadly stifle fundamental personal liberties when the end
can be more narrowly achieved." Shelton, supra, at 364 U. S. 488 .
[ Footnote 3/30 ] As we said in Gibson, supra, "Of course, a legislative investigation -- as any investigation
-- must proceed 'step by step,' . . . but step by step or in
totality, an adequate foundation for inquiry must be laid before
proceeding in such a manner as will substantially intrude upon and
severely curtail or inhibit constitutionally protected activities
or seriously interfere with similarly protected associational
rights."

															372 U.S. at 372 U. S.
557 .

															I believe the safeguards developed in our decisions involving
governmental investigations must apply to the grand jury inquiries
in these cases. Surely the function of the grand jury to aid in the
enforcement of the law is no more important than the function of
the legislature, and its committees, to make the law. We have long
recognized the value of the role played by legislative
investigations, see, e.g., 345 U. S. Rumely, Page 408 U. S. 742 345 U. S. 41 , 345 U. S. 43 ; Barenblatt v. United States, 360 U.
S. 109 , 360 U. S.
111 -112, for the

															"power of the Congress to conduct investigations is inherent . .
. [encompassing] surveys of defects in our social, economic or
political system for the purpose of enabling the Congress to remedy
them." Watkins, supra, at 354 U. S. 187 .
Similarly, the associational rights of private individuals, which
have been the prime focus of our First Amendment decisions in the
investigative sphere, are hardly more important than the First
Amendment rights of mass circulation newspapers and electronic
media to disseminate idea and information, and of the general
public to receive them. Moreover, the vices of vagueness and
overbreadth that legislative investigations may manifest are also
exhibited by grand jury inquiries, since grand jury investigations
are not limited in scope to specific criminal acts, see, e.g.,
Wilson v. United States, 221 U. S. 361 , Hendricks v. United States, 223 U.
S. 178 , 223 U. S. 184 , United States v. Johnson, 319 U.
S. 503 , and since standards of materiality and relevance
are greatly relaxed. Holt v. United States, 218 U.
S. 245 ; Costello v. United States, 350 U.
S. 359 . See generally Note, The Grand Jury as
an Investigatory Body, 74 Harv.L.Rev. 590, 591-592 (1961).
[ Footnote 3/31 ] For, as the
United States notes in its brief in Caldwell, the Page 408 U. S. 743 grand jury

															"need establish no factual basis for commencing an
investigation, and can pursue rumors which further investigation
may prove groundless."

															Accordingly, when a reporter is asked to appear before a grand
jury and reveal confidences, I would hold that 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; [ Footnote 3/32 ]
(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. [ Footnote 3/33 ]

															This is not to say that a grand jury could not issue a subpoena
until such a showing were made, and it is not to say that a newsman
would be in any way privileged to ignore any subpoena that was
issued. Obviously, before the government's burden to make such a
showing were triggered, the reporter would have to move to quash
the subpoena, asserting the basis on which he considered the
particular relationship a confidential one. Page 408 U. S. 744 B The crux of the Court's rejection of any newsman's privilege is
its observation that only

															"where news sources themselves are implicated in crime or
possess information relevant to the grand jury's task need
they or the reporter be concerned about grand jury subpoenas." See ante at 408 U. S. 691 (emphasis supplied). But this is a most misleading construct. For
it is obviously not true that the only persons about whom reporters
will be forced to testify will be those "confidential informants
involved in actual criminal conduct" and those having "information
suggesting illegal conduct by others." See ante at 408 U. S. 691 , 408 U. S. 693 .
As noted above, given the grand jury's extraordinarily broad
investigative powers and the weak standards of relevance and
materiality that apply during such inquiries, reporters, if they
have no testimonial privilege, will be called to give information
about informants who have neither committed crimes nor have
information about crime. It is to avoid deterrence of such sources,
and thus to prevent needless injury to First Amendment values that
I think the government must be required to show probable cause that
the newsman has information that is clearly relevant to a specific
probable violation of criminal law. [ Footnote 3/34 ] Page 408 U. S. 745 Similarly, a reporter may have information from a confidential
source that is "related" to the commission of crime, but the
government may be able tax obtain an indictment or otherwise
achieve its purposes by subpoenaing persons other than the
reporter. It is an obvious but important truism that, when
government aims have been fully served, there can be no legitimate
reason to disrupt a confidential relationship between a reporter
and his source. To do so would not aid the administration of
justice ,and would only impair the flow of information to the
public. Thus, it is to avoid deterrence of such sources that I
think the government must show that there are no alternative means
for the grand jury to obtain the information sought.

															Both the "probable cause" and "alternative means" requirements
would thus serve the vital function of mediating between the public
interest in the administration of justice and the constitutional
protection of the full flow of information. These requirements
would avoid a direct conflict between these competing concerns, and
they would generally provide adequate protection for newsmen. See 408 U. S. infra. [ Footnote 3/35 ]
No doubt the courts would be required to make some delicate
judgments in working out this accommodation. But that, after
all, Page 408 U. S. 746 is the function of court of law. Better such judgments, however
difficult, than the simplistic and stultifying absolutism adopted
by the Court in denying any force to the First Amendment in these
cases. [ Footnote 3/36 ]

															The error in the Court's absolute rejection of First Amendment
interests in these cases seems to me to be most profound. For in
the name of advancing the administration of justice, the Court's
decision, I think, will only impair the achievement of that goal.
People entrusted with law enforcement responsibility, no less than
private citizens, need general information relating to
controversial social problems. Obviously, press reports have great
value to government, even when the newsman cannot be compelled to
testify before a grand jury. The sad paradox of the Court's
position is that, when a grand jury may exercise an unbridled
subpoena power, and sources involved in sensitive matters become
fearful of disclosing information, the newsman will not only cease
to be a useful grand jury witness; he will cease to investigate and
publish information about issues of public import. I cannot
subscribe to such an anomalous result, for, in my view, the
interests protected by the First Amendment are not antagonistic to
the administration of justice. Rather, they can, in the long run,
only be complementary, and for that reason must be given great
"breathing space." NAACP v. Button, 371 U.S. at 371 U. S.
433 . III In deciding what protection should be given to information a
reporter receives in confidence from a news source, the Court of
Appeals for the Ninth Circuit affirmed the holding of the District
Court that the grand Page 408 U. S. 747 jury power of testimonial compulsion must not be exercised in a
manner likely to impair First Amendment interests "until there has
been a clear showing of a compelling and overriding national
interest that cannot be served by any alternative means." Caldwell v. United States, 434 F.2d 1081, 1086. It
approved the request of respondent Caldwell for specification by
the government of the "subject, direction or scope of the Grand
Jury inquiry." Id. at 1085. And it held that, in the
circumstances of this case, Caldwell need not divulge confidential
information.

															I think this decision was correct. On the record before us, the
United States has not met the burden that I think the appropriate
newsman's privilege should require.

															In affidavits before the District Court, the United States said
it was investigating possible violations of 18 U.S.C. § 871
(threats against the President), 18 U.S.C. § 1751 (assassination,
attempts to assassinate, conspiracy to assassinate the President),
18 U.S.C. § 231 (civil disorders), 18 U.S.C. § 2101 (interstate
travel to incite a riot), 18 U.S.C. § 1341 (mail fraud and
swindles) and other crimes that were not specified. But, with one
exception, there has been no factual showing in this case of the
probable commission of, or of attempts to commit, any crimes.
[ Footnote 3/37 ] The single
exception relates to the allegation that a Black Panther Party
leader, David Hilliard, violated 18 U.S.C. § 871 during the course
of a speech in November, 1969. But Caldwell was subpoenaed two
months after an indictment was returned against Hilliard, and that
charge could not, subsequent to the indictment, be investigated by
a grand jury. See In re National Window Glass Workers, 287
F. 219; United Page 408 U. S. 748 States v. Dardi, 330 F.2d 316, 336. [ Footnote 3/38 ] Furthermore, the record before us
does not show that Caldwell probably had any information about the
violation of any other federal criminal laws, [ Footnote 3/39 ] or that alternative Page 408 U. S. 749 means of obtaining the desired information were pursued.
[ Footnote 3/40 ]

															In the Caldwell case, the Court of Appeal further found
that Caldwell's confidential relationship with the leaders of the
Black Panther Party would be impaired if he appeared before the
grand jury at all to answer questions, even though not privileged. Caldwell v. United States, 434 F.2d at 1088. On the
particular facts before it, [ Footnote
3/41 ] the court concluded that the very Page 408 U. S. 750 appearance by Caldwell before the grand jury would jeopardize
his relationship with his sources, leading to a severance of the
news-gathering relationship and impairment of the flow of news to
the public: [ Footnote 3/42 ]

															"Appellant asserted in affidavit that there is nothing to which
he could testify (beyond that which he has already made public and
for which, therefore, his appearance is unnecessary) that is not
protected by the District Court's order. If this is true -- and the
Government apparently has not believed it necessary to dispute it
-- appellant's response to the subpoena would be a barren
performance Page 408 U. S. 751 -- one of no benefit to the Grand Jury. To destroy appellant's
capacity as news gatherer for such a return hardly makes sense.
Since the cost to the public of excusing his attendance is so
slight, it may be said that there is here no public interest of
real substance in competition with the First Amendment freedoms
that are jeopardized."

															"If any competing public interest is ever to arise in a case
such as this (where First Amendment liberties are threatened by
mere appearance at a Grand Jury investigation) it will be on an
occasion in which the witness, armed with his privilege, can still
serve a useful purpose before the Grand Jury. Considering the scope
of the privilege embodied in the protective order, these occasions
would seem to be unusual. It is not asking too much of the
Government to show that such an occasion is presented here." Id. at 1089.

															I think this ruling was also correct in light of the
particularized circumstances of the Caldwell case.
Obviously, only in very rare circumstances would a confidential
relationship between a reporter and his source be so sensitive that
mere appearance before the grand jury by the newsman would
substantially impair his newsgathering function. But in this case,
the reporter made out a prima facie case that the flow of
news to the public would be curtailed. And he stated, without
contradiction, that the only nonconfidential material about which
he could testify was already printed in his newspaper articles.
[ Footnote 3/43 ] Since the United
States has not attempted to Page 408 U. S. 752 refute this assertion, the appearance of Caldwell would, on
these facts, indeed be a "barren performance." But this aspect of
the Caldwell judgment I would confine to its own facts. As
the Court of Appeals appropriately observed: "[T]he rule of this
case is a narrow one. . . ." Caldwell, supra, at 1090.

															Accordingly, I would affirm the judgment of the Court of Appeals
in No. 70-57, United States v. Caldwell. [ Footnote 3/44 ] In the other two cases before us,
No. 70-85, Branzburg v. Hayes and Meigs, and No.
70-94, In re Pappas, I would vacate the judgments and
remand the cases for further proceedings not inconsistent with the
views I have expressed in this opinion.

															[ Footnote 3/1 ]

															We have often described the process of informing the public as
the core purpose of the constitutional guarantee of free speech and
a free press. See, e.g., Stromberg v. California, 283 U. S. 359 , 283 U. S. 369 ; De Jonge v. Oregon, 299 U. S. 353 , 299 U. S. 365 ; Smith v. California, 361 U. S. 147 , 361 U. S.
153 .

															[ Footnote 3/2 ]

															As I see it, a reporter's right to protect his source is
bottomed on the constitutional guarantee of a full flow of
information to the public. A newsman's personal First Amendment
rights or the associational rights of the newsman and the source
are subsumed under that broad societal interest protected by the
First Amendment. Obviously, we are not here concerned with the
parochial personal concerns of particular newsmen or
informants.

															"The newsman-informer relationship is different from . . . other
relationships whose confidentiality is protected by statute, such
as the attorney-client and physician-patient relationships. In the
case of other statutory privileges, the right of nondisclosure is
granted to the person making the communication in order that he
will be encouraged by strong assurances of confidentiality to seek
such relationships which contribute to his personal wellbeing. The
judgment is made that the interests of society will be served when
individuals consult physicians and lawyers; the public interest is
thus advanced by creating a zone of privacy that the individual can
control. However, in the case of the reporter-informer
relationship, society's interest is not in the welfare of the
informant per se, but rather in creating conditions in
which information possessed by news sources can reach public
attention."

															Note, 80 Yale L.J. 317, 343 (1970) (footnotes omitted)
(hereinafter Yale Note).

															[ Footnote 3/3 ] See generally Z. Chafee, Free Speech in the United
States (1941); A. Meikeljohn, Free Speech and Its Relation to
Self-Government (1948); T. Emerson, Toward a General Theory of the
First Amendment (1963).

															[ Footnote 3/4 ]

															In Zemel v. Rusk, 381 U. S. 1 , we held
that the Secretary of State's denial of a passport for travel to
Cuba did not violate a citizen's First Amendment rights. The rule
was justified by the "weightiest considerations of national
security," and we concluded that the "right to speak and publish
does not carry with it the unrestrained right to gather
information." Id. at 381 U. S. 16 -17
(emphasis supplied). The necessary implication is that some right
to gather information does exist.

															[ Footnote 3/5 ]

															In Caldwell v. United States, 434 F.2d 1081, the
Government claimed that Caldwell did not have to maintain a
confidential relationship with members of the Black Panther Party
and provide independent reporting of their activities, since the
Party and its leaders could issue statements on their own. But, as
the Court of Appeals for the Ninth Circuit correctly observed:

															"[I]t is not enough that Black Panther press releases and public
addresses by Panther leaders may continue unabated in the wake of
subpoenas such as the one here in question. It is not enough that
the public's knowledge of groups such as the Black Panthers should
be confined to their deliberate public pronouncements or distant
news accounts of their occasional dramatic forays into the public
view."

															"The need for an untrammeled press takes on special urgency in
times of widespread protest and dissent. In such times, the First
Amendment protections exist to maintain communication with
dissenting groups and to provide the public with a wide range of
information about the nature of protest and heterodoxy."

															Citing Associated Press v. United States, 326 U. S.
1 , 326 U. S. 20 ; Thornill v. Alabama, 310 U. S. 88 , 310 U. S. 102 . Id. at 1084-1085.

															[ Footnote 3/6 ]

															As we observed in Talley v. California, 362 U. S.
60 ,

															"Anonymous pamphlets, leaflets, brochures and even books have
played al important role in the progress of mankind. . . . Before
the Revolutionary War, colonial patriots frequently had to conceal
their authorship or distribution of literature that easily could
have brought down on them prosecutions by English controlled
courts. . . . Even the Federalist Papers, written in favor of the
adoption of our Constitution, were published under fictitious
names. It is plain that anonymity has sometimes been assumed for
the most constructive purposes." Id. at 362 U. S. 64 -65.
And in Lamont v. Postmaster General, 381 U.
S. 301 , we recognized the importance to First Amendment
values of the right to receive information anonymously.

															[ Footnote 3/7 ] Application of Caldwell, 311 F.
Supp. 358 , 361.

															[ Footnote 3/8 ] See, e.g., F. Chalmers, A Gentleman of the Press: The
Biography of Colonel John Bayne MacLean 775 (1969); H. Klurfeld,
Behind the Lines: The World of Drew Pearson 50, 52-55 (1968); A.
Krock, Memoirs: Sixty Years on the Firing Line 181, 184-185 (1968);
E. Larsen, First with the Truth 22-23 (1968); R. Ottley, The Lonely
Warrior -- The Life and Times of Robert S. Abbott 143-145 (1955);
C. Sulzberger, A Long Row of Candles; Memoirs and Diaries 241
(1969).

															As Walter Cronkite, a network television reporter, said in an
affidavit in Caldwell:

															"In doing my work, I (and those who assist me) depend constantly
on information, ideas, leads and opinions received in confidence.
Such material is essential in digging out news worthy facts and,
equally important, in assessing the importance and analyzing the
significance of public events."

															App. 52.

															[ Footnote 3/9 ] See Guest & Stanzler, The Constitutional Argument
for Newsmen Concealing Their Sources, 64 Nw.U.L.Rev. 18 (1969); V.
Blasi, Press Subpoenas: An Empirical and Legal Analysis, Study
Report of the Reporters' Committee on Freedom of the Press 229
(hereinafter Blasi).

															[ Footnote 3/10 ]

															The American Newspaper Guild has adopted the following rule as
part of the newsman's code of ethics:

															"[N]ewspapermen shall refuse to reveal confidences or disclose
sources of confidential information in court or before other
judicial or investigating bodies."

															G. Bird & F. Merwin, The Press and Society 592 (1971).

															[ Footnote 3/11 ]

															Obviously, if a newsman does not honor a confidence, he will
have difficulty establishing other confidential relationships
necessary for obtaining information in the future. See Siebert & Ryniker, Press Winning Fight to Guard Sources, Editor
& Publisher, Sept. 1, 1934, pp. 9, 36-37.

															[ Footnote 3/12 ]

															The court found that

															"compelled disclosure of information received by a journalist
within the scope of . . . confidential relationships jeopardizes
those relationships, and thereby impairs the journalist's ability
to gather, analyze and publish the news." Application of Caldwell, 311 F. Supp. at 361.

															[ Footnote 3/13 ] See 408
U.S. 665 fn3/8|>n. 8, supra. [ Footnote 3/14 ]

															Recent commentary is nearly unanimous in urging either an
absolute or qualified newsman's privilege. See, e.g., Goldstein, Newsmen and Their Confidential Sources, New Republic,
Mar. 21, 1970, pp. 13-14; Yale Note, supra, 408
U.S. 665 fn3/2|>n. 2; Comment, 46 N.Y.U.L.Rev. 617 (1971);
Nelson, The Newsmen's Privilege Against Disclosure of Confidential
Sources and Information, 24 Vand.L.Rev. 667 (1971); Note, The Right
of the Press to Gather Information, 71 Col.L.Rev. 838 (1971);
Comment, 4 U.Mich.J.L.Ref. 85 (1970); Comment, 6
Harv.Civ.Rights-Civ.Lib.L.Rev. 119 (1970); Comment, The Newsman's
Privilege: Government Investigations, Criminal Prosecutions and
Private Litigation, 58 Calif.L.Rev. 1198 (1970). But see the Court's opinion, ante at 408 U. S. 690 n. 29. And see generally articles collected in Yale Note, supra, 408
U.S. 665 fn3/2|>n. 2.

															Recent decisions are in conflict both as to the importance of
the deterrent effects and, a fortiori, as to the existence
of a constitutional right to a confidential reporter-source
relationship. See the Court's opinion, ante at 408 U. S. 686 ,
and cases collected in Yale Note, at 318 nn. 6-7.

															[ Footnote 3/15 ] See Blasi 6-71; Guest & Stanzler, supra, 408
U.S. 665 fn3/9|>n. 9, at 450.

															[ Footnote 3/16 ]

															Department of Justice Memo. No. 692 (Sept. 2, 1970).

															[ Footnote 3/17 ]

															Although, as the Court points out, we have held that the press
is not free from the requirements of the National Labor Relations
Act, the Fair Labor Standards Act, the antitrust laws, or
nondiscriminatory taxation, ante at 408 U. S. 683 ,
these decisions were concerned "only with restraints on certain
business or commercial practices" of the press. Citizen
Publishing Co. v. United States, 394 U.
S. 131 , 394 U. S. 139 .
And due weight was given to First Amendment interests. For
example,

															"The First Amendment, far from providing an argument against
application of the Sherman Act . . . provides powerful reasons to
the contrary." Associated Press v. United States, 326 U.S. at 326 U. S. 20 .

															[ Footnote 3/18 ]

															The fact that some informants will not be deterred from giving
information by the prospect of the unbridled exercise of the
subpoena power only means that there will not always be a
conflict between the grand jury's inquiry and the protection of
First Amendment activities. But even if the percentage of such
informants is relatively large compared to the total "universe" of
potential informants, there will remain a large number of people in
"absolute" terms who will be deterred, and the flow of
news through mass circulation newspapers and electronic media will
inevitably be impaired.

															[ Footnote 3/19 ]

															Empirical studies, after all, can only provide facts. It is the
duty of courts to give legal significance to facts; and it is the
special duty of this Court to understand the constitutional
significance of facts. We must often proceed in a state of less
than perfect knowledge, either because the facts are murky or the
methodology used in obtaining the facts is open to question. It is
then that we must look to the Constitution for the values that
inform our presumptions. And the importance to our society of the
full flow of information to the public has buttressed this Court's
historic presumption in favor of First Amendment values.

															[ Footnote 3/20 ] See, e.g., the uncontradicted evidence presented in
affidavits from newsmen in Caldwell, Appendix to No.
70-57, pp. 22-61 (statements from Gerald Fraser, Thomas Johnson,
John Kifner, Timothy Knight, Nicholas Proffitt, Anthony Ripley,
Wallace Turner, Gilbert Noble, Anthony Lukas, Martin Arnold, David
Burnham, Jon Lowell, Frank Morgan, Min Yee, Walter Cronkite, Eric
Severeid, Mike Wallace, Dan Rather, Marvin Kalb).

															[ Footnote 3/21 ] See Blau v. United States, 340 U.
S. 159 ; Quinn v. United States, 349 U.
S. 155 ; Curcio v. United States, 354 U.
S. 118 ; Malloy v. Hogan, 378 U. S.
1 .

															[ Footnote 3/22 ] See Silverthorne Lumber Co. v. United States, 251 U. S. 385 .

															[ Footnote 3/23 ] See Committee on Rules of Practice and Procedure of
Judicial Conference of the United States, Revised Draft of Proposed
Rules of Evidence for the United States Court and Magistrates
(1971); 8 J. Wigmore, Evidence §§ 2292391 (McNaughton
rev.1961).

															[ Footnote 3/24 ]

															Although there is a longstanding presumption against creation of
common law testimonial privileges, United States v. Bryan, 339 U. S. 323 ,
these privileges are rounded in an "individual interest which has
been found . . . to outweigh the public interest in the search for
truth," rather than in the broad public concerns that inform the
First Amendment. Id. at 339 U. S.
331 .

															[ Footnote 3/25 ]

															The protection of information from compelled disclosure for
broad purposes of public policy has been recognized in decisions
involving police informers, see Roviaro v. United States, 353 U. S. 53 , United States v. Ventresca, 380 U.
S. 102 , 380 U. S. 108 , Aguilar v. Texas, 378 U. S. 108 , 378 U. S. 114 , McCray v. Illinois, 386 U. S. 300 , and
military and state secrets, United States v. Reynolds, 345 U. S. 1 .

															[ Footnote 3/26 ]

															As we said in Watkins v. United States, 354 U.
S. 178 ,

															"[W]hen First Amendment rights are threatened, the delegation of
power to the [legislative] committee must be clearly revealed in
its charter. . . . It is the responsibility of the Congress . . .
to insure that compulsory process is used only in furtherance of a
legislative purpose. That requires that the instructions to an
investigating committee spell out the group's jurisdiction and
purpose with sufficient particularity. . . . The more vague the
committee's charter is, the greater becomes the possibility that
the committee's specific actions are not in conformity with the
will of the parent House of Congress." Id. at 354 U. S. 198 , 354 U. S.
201 .

															[ Footnote 3/27 ]

															We noted in Sweezy v. New Hampshire, 354 U.
S. 234 :

															"The State Supreme Court itself recognized that there was a
weakness in its conclusion that the menace of forcible overthrow of
the government justified sacrificing constitutional rights. There
was a missing link in the chain of reasoning. The syllogism was not
complete. There was nothing to connect the question of
petitioner with this fundamental interest of the State. " Id. at 354 U. S. 251 (emphasis supplied).

															[ Footnote 3/28 ] See generally Note, Less Drastic Means and the First
Amendment, 78 Yale L.J. 464 (1969).

															[ Footnote 3/29 ] See Watkins, supra, at 354 U. S.
208 -209. See generally Baggett v. Bullitt, 377 U. S. 360 , 377 U. S. 372 ; Speiser v. Randall, 357 U. S. 513 , 357 U. S. 526 ; Ashton v. Kentucky, 384 U. S. 195 , 384 U. S.
200 -201; Dombrowski v. Pfister, 380 U.
S. 479 , 380 U. S. 486 ; Smith v. California, 361 U.S. at 361 U. S.
150 -152; Winters v. New York, 333 U.
S. 507 ; Stromberg v. California, 283 U.S. at 283 U. S. 369 . See also Note, The Chilling Effect in Constitutional Law,
69 Col.L.Rev. 808 (1969).

															[ Footnote 3/30 ] See generally Zwickler v. Koota, 389 U.
S. 241 , 389 U. S.
249 -250, and cases cited therein; Coates v.
Cincinnati, 402 U. S. 611 , 402 U. S. 616 ; Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 307 ; De Jonge v. Oregon, 299 U.S. at 299 U. S.
364 -365; Schneider v. State, 308 U.
S. 147 , 308 U. S. 164 ; Cox v. Louisiana, 379 U. S. 559 , 379 U. S.
562 -664. Cf. NAACP v. Button, 371 U.
S. 415 , 371 U. S. 438 . See also Note, The First Amendment Overbreadth Doctrine,
83 Harv.L.Rev. 844 (1970).

															[ Footnote 3/31 ]

															In addition, witnesses customarily are not allowed to object to
questions on the grounds of materiality or relevance, since the
scope of the grand jury inquiry is deemed to be of no concern to
the witness. Carter v. United States, 417 F.2d 384, cert. denied, 399 U.S. 935. Nor is counsel permitted to be
present to aid a witness. See In re Groban, 352 U.
S. 330 . See generally Younger, The Grand Jury Under Attack, pt.
3, 46 J.Crim.L.C. & P.S. 214 (1955); Recent Cases, 104
U.Pa.L.Rev. 429 (1955); Watts, Grand Jury: Sleeping Watchdog or
Expensive Antique, 37 N.C.L.Rev. 290 (1959); Whyte, Is the Grand
Jury Necessary?, 45 Va.L.Rev. 461 (1959); Note, 2 Col. J.Law &
Soc.Prob. 47, 58 (1966); Antell, The Modern Grand Jury: Benighted
Supergovernment, 51 A.B.A.J. 153 (1965); Orfield, The Federal Grand
Jury, 22 F.R.D. 343.

															[ Footnote 3/32 ]

															The standard of proof employed by most grand juries, federal and
State, is simply "probable cause" to believe that the accused has
committed a crime. See Note, 1963 Wash.U.L.Q.102; L. Hall et al., Modern Criminal Procedure 793-794 (1969).
Generally speaking, it is extremely difficult to challenge
indictments on the ground that they are not supported by adequate
or competent evidence. Cf. Costello v. United States, 350 U. S. 359 ; Beck v. Washington, 369 U. S. 541 .

															[ Footnote 3/33 ] Cf. Garland v. Torre, 259 F.2d 545. The Court of
Appeals for the Second Circuit declined to provide a testimonial
privilege to a newsman called to testify at a civil trial. But the
court recognized a newsman's First Amendment right to a
confidential relationship with his source, and concluded:

															"It is to be noted that we are not dealing here with the use of
the judicial process to force a wholesale disclosure of a
newspaper's confidential sources of news, nor with a case where the
identity of the news source is of doubtful relevance or
materiality. . . . The question asked . . . went to the heart of
the plaintiff's claim." Id. at 549-550 (citations omitted).

															[ Footnote 3/34 ]

															If this requirement is not met, then the government will
basically be allowed to undertake a "fishing expedition" at the
expense of the press. Such general, exploratory investigations will
be most damaging to confidential news-gathering relationships,
since they will create great uncertainty in both reporters and
their sources. The Court sanctions such explorations by refusing to
apply a meaningful "probable cause" requirement. See ante at 408 U.S. 701 -702. As the
Court states, a grand jury investigation "may be triggered by tips,
rumors, evidence proffered by the prosecutor, or the personal
knowledge of the grand jurors." Ante at 408 U.S. 701 . It thereby invites
government to try to annex the press as an investigative arm, since
any time government wants to probe the relationships between the
newsman and his source, it can, on virtually any pretext, convene a
grand jury and compel the journalist to testify.

															The Court fails to recognize that, under the guise of
"investigating crime," vindictive prosecutors can, using the broad
powers of the grand jury which are, in effect, immune from judicial
supervision, explore the newsman's sources at will, with no serious
law enforcement purpose. The secrecy of grand jury proceedings
affords little consolation to a news source; the prosecutor
obviously will, in most cases, have knowledge of testimony given by
grand jury witnesses.

															[ Footnote 3/35 ]

															We need not, therefore, reach the question of whether
government's interest in these cases is "overriding and
compelling." I do not, however, believe, as the Court does, that
all grand jury investigations automatically would override the
newsman's testimonial privilege.

															[ Footnote 3/36 ]

															The disclaimers in MR. JUSTICE POWELL's concurring opinion leave
room for the hope that, in some future case, the Court may take a
less absolute position in this area.

															[ Footnote 3/37 ] See Blasi 61 et seq. [ Footnote 3/38 ]

															After Caldwell was first subpoenaed to appear before the grand
jury, the Government did undertake, by affidavits, to

															"set forth facts indicating the general nature of the grand
jury's investigation [and] witness Earl Caldwell's possession of
information relevant to this general inquiry."

															In detailing the basis for the belief that a crime had probably
been committed, the Government simply asserted that certain actions
had previously been taken by other grand juries, and by
Government counsel, with respect to certain members of the
Black Panther Party ( i.e., immunity grants for certain
Black Panthers were sought; the Government moved to compel party
members to testify before grand juries; and contempt citations were
sought when party members refused to testify). No facts were
asserted suggesting the actual commission of crime. The exception,
as noted, involved David Hilliard's speech and its republication in
the party newspaper, the Black Panther, for which Hilliard had been
indicted before Caldwell was subpoenaed.

															[ Footnote 3/39 ]

															In its affidavits, the Government placed primary reliance on
certain articles published by Caldwell in the New York Times during
1969 (on June 15, July 20, July 22, July 27, and Dec. 14). On Dec.
14, 1969, Caldwell wrote:

															"'We are special,' Mr. Hilliard said recently. 'We advocate the
very direct overthrow of the Government by way of force and
violence. By picking up guns and moving against it because we
recognize it as being oppressive and, in recognizing that, we know
that the only solution to it is armed struggle.'"

															"In their role as the vanguard in a revolutionary struggle, the
Panthers have picked up guns."

															"Last week, two of their leaders were killed during the police
raid on one of their offices in Chicago. And in Los Angeles a few
days earlier, three officers and three Panthers were wounded in a
similar shooting incident. In these and in some other raids, the
police have found caches of weapons, including high-powered
rifles."

															App. in No. 70-57, p. 13. In my view, this should be read as
indicating that Caldwell had interviewed Panther leaders. It does
not indicate that he probably had knowledge of the crimes being
investigated by the Government. And, to repeat, to the extent it
does relate to Hilliard's threat, an indictment had already been
brought in that matter. The other articles merely demonstrate that
Black Panther Party leaders had told Caldwell their ideological
beliefs -- beliefs that were readily available to the Government
through other sources, like the party newspaper.

															[ Footnote 3/40 ]

															The Government did not attempt to show that means less impinging
upon First Amendment interests had been pursued.

															[ Footnote 3/41 ]

															In an affidavit filed with the District Court, Caldwell
stated:

															"I began covering and writing articles about the Black Panthers
almost from the time of their inception, and I myself found that,
in those first months . . . , they were very brief and reluctant to
discuss any substantive matter with me. However, as they realized I
could be trusted and that my sole purpose was to collect my
information and present it objectively in the newspaper, and that I
had no other motive, I found that not only were the party leaders
available for in-depth interviews, but also the rank and file
members were cooperative in aiding me in the newspaper stories that
I wanted to do. During the time that I have been covering the
party, I have noticed other newspapermen representing legitimate
organizations in the news media being turned away because they were
not known and trusted by the party leadership."

															"As a result of the relationship that I have developed, I have
been able to write lengthy stories about the Panthers that have
appeared in The New York Times and have been of such a nature that
other reporters who have not known the Panthers have not been able
to write. Many of these stories have appeared in up to 50 or 60
other newspapers around the country."

															"The Black Panther Party's method of operation with regard to
members of the press is significantly different from that of other
organizations. For instance, press credentials are not recognized
as being of any significance. In addition, interviews are not
normally designated as being 'backgrounders' or 'off the record' or
'for publication' or 'on the record.' Because no substantive
interviews are given until a relationship of trust and confidence
is developed between the Black Panther Party members and a
reporter, statements are rarely made to such reporters on an
expressed 'on' or 'off' the record basis. Instead, an understanding
is developed over a period of time between the Black Panther Party
members and the reporter as to matters which the Black Panther
Party wishes to disclose for publications and those matters which
are given in confidence. . . . Indeed, if I am forced to appear in
secret grand jury proceedings, my appearance alone would be
interpreted by the Black Panthers and other dissident groups as a
possible disclosure of confidences and trusts and would similarly
destroy my effectiveness as a newspaperman."

															The Government did not contradict this affidavit.

															[ Footnote 3/42 ]

															"Militant groups might very understandably fear that, under the
pressure of examination before a Grand Jury, the witness may fail
to protect their confidences. . . . The Government characterizes
this anticipated loss of communication as Black Panther reprisal. .
. . But it is not an extortionate threat we face. It is human
reaction as reasonable to expect as that a client will leave his
lawyer when his confidence is shaken. . . . As the Government
points out, loss of such a sensitive news source can also result
from its reaction to indiscreet or unfavorable reporting or from a
reporter's association with Government agents or persons
disapproved of by the news source. Loss in such a case, however,
results from an exercise of the choice and prerogative of a free
press. It is not the result of Government compulsion." Caldwell v. United States, 434 F.2d at 1088.

															[ Footnote 3/43 ]

															Caldwell stated in his affidavit filed with the District Court, see 408
U.S. 665 fn3/40|>n. 40, supra: "It would be virtually impossible for me to recall whether any
particular matter disclosed to me by members of the Black Panther
Party since January l, 1969, was based on an understanding that it
would or would not be confidential. Generally, those matters which
were made on a nonconfidential or 'for publication' basis have been
published in articles I have written in The New York Times;
conversely, any matters which I have not thus far disclosed in
published articles would have been given to me based on the
understanding that they were confidential and would not be
published."

															[ Footnote 3/44 ]

															The District Court reserved jurisdiction to modify its order on
a showing of a governmental interest which cannot be served by
means other than Caldwell's grand jury testimony. The Government
would thus have further opportunity in that court to meet the
burden that, I think, protection of First Amendment rights
requires.

Summary: In the case of *Branzburg v. Hayes*, the U.S. Supreme Court ruled that the First Amendment does not grant journalists immunity from testifying before a grand jury or revealing confidential sources. The Court held that journalists, like all citizens, are legally obligated to respond to grand jury subpoenas and provide relevant information in criminal investigations. This decision affirmed the lower court rulings in two Kentucky cases and one Massachusetts case, while reversing a District Court ruling in a fourth case.