A Tale of Three Reporters: Reflecting on Branzburg v. Hayes at 50

Only seven justices emerged from the curtains amid the marble columns behind the bench that morning. Justice Byron White had departed two days earlier for the Tenth Circuit Judicial Conference; Justice William O. Douglas had most likely left town for his western home in Goose Prairie, Washington, not waiting for the term’s formal conclusion.

Newspaper banner headlines the next day trumpeted the Court’s decision in Furman v. Georgia,¹ finding by a 5–4 vote that administration of the death penalty when applied in an arbitrary or discriminatory manner was “cruel and unusual punishment” in violation of the Eighth Amendment and the Fourteenth Amendment’s Due Process clause. The case had been argued for the victors by Anthony Amsterdam, then a professor at Stanford Law School.

Branzburg v. Hayes² was the fourth ruling of the day; in the courtroom, Chief Justice Warren Burger announced the decision, filling in for the missing White, who had written the majority opinion. The Court ruled 5–4 that news reporters have no right under the First Amendment to refuse to testify to grand juries about confidential sources and information. “We are asked to . . . grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do,” White wrote for the majority.³

In his opinion, White acknowledged that, “without some protection for seeking out the news, freedom of the press could be eviscerated.”⁴ But he said the question before the Court was “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,”⁵ instructing that the First Amendment is not violated by every “incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.”⁶

The case produced three other opinions. Two were in dissent, one by Justice Douglas,⁷ and one written by Justice Potter Stewart joined by Justices William Brennan and Thurgood Marshall.⁸ Of greatest significance was a concurring opinion by Justice Lewis Powell, who suggested reporters might still challenge grand jury subpoenas on a case-by-case basis, even if there were no formal reporter’s privilege.⁹

The decision in Branzburg v. Hayes was eclipsed in the next day’s headlines by the death penalty ruling. “Court Rules Press Must Give Sources,” the single-column headline at the bottom of the front page noted in the Washington Post.¹⁰ “Press Loses Plea to Keep Data from Grand Juries,” the New York Times (the Times) headline read,¹¹ a more prominent two-column display under a two-tiered banner headline, one on the death penalty ruling, the other on the Democratic National Committee’s stripping California primary delegates from the frontrunner for the party’s presidential nomination, Senator George McGovern (D-SD).

Nevertheless, the Branzburg decision marked the end of a dramatic odyssey that played out at a time of unrest in the country, transition on the Court, and increasing visibility for journalism. It was also the beginning of another odyssey, one that remains ongoing, to protect the rights of reporters to shield their sources—a journey that has involved legislatures, lawyering, and lower court decisions designed to change the narrative in the wake of the Supreme Court’s ruling.

The Cases

The story of Branzburg v. Hayes is actually three different stories about three different reporters for three different news organization in three different parts of the country. In 1968, Earl Caldwell was assigned to cover the Black Panther Party in California for the Times. Paul Pappas was a cameraperson and occasional reporter for WTEV-TV in New Bedford, Massachusetts, when he was sent to cover an expected police raid on a Black Panther headquarters. Paul Branzburg was a reporter for the Louisville Courier-Journal in Kentucky when he wrote two major stories on illegal drug use, specifically marijuana and hashish, in the state. All three were eventually called before grand juries—Caldwell, federal; Branzburg and Pappas, state—to provide testimony about alleged illegal activity they may have observed while reporting. All three, having no connection to one another, invoked the First Amendment and refused to testify. Now, 50 years after the Supreme Court decided their cases, we look back at their stories.

Caldwell v. United States

Earl Caldwell was a national correspondent for the Times, hired in 1967 at a time when there were very few Black reporters at the newspaper or at any other major news organizations. In the summer of 1967, many urban areas experienced racial turmoil. Clashes between white police and Black communities erupted into riots, most notably in Detroit, but also in many other cities around the country. The pattern repeated itself in 1968, prompted by poor housing conditions in segregated Black communities, low incomes, police targeting of Blacks, and more.

The civil rights movement brought many of these issues to the forefront. But while white reporters had long covered the fight for civil rights in the South and were generally welcomed by Black activists eager to tell their stories to a national audience, media organizations found that they needed Black reporters to report about Black communities in the urban North and West, where distrust of whites—including the white press—was palpable.

Caldwell began reporting on the Black Panthers fresh off the harrowing experience of being the only reporter with Dr. Martin Luther King Jr. when the civil rights leader was assassinated on a motel balcony in Memphis on April 4, 1968. Caldwell led the Times coverage.¹²

Even before Dr. King was assassinated, younger Black activists had rejected his calls for nonviolence and coalition building. The Black Panther Party was founded in 1966 in Oakland, California, by Huey Newton and Bobby Seale, both then in their 20s, ostensibly for the purpose of protecting Black communities from police brutality. Panther members patrolled Oakland’s Black neighborhoods, toting guns, which inevitably led to armed and often fatal clashes with police. At the same time, they set up free breakfast programs for Black children, health clinics in impoverished communities, and other social programs that would eventually be adopted as official government policy, albeit many years later.

As the Panthers grew and expanded across the country, they became a target of local and national law enforcement, especially Federal Bureau of Investigation (FBI) long-time director J. Edgar Hoover. Among other things, following the inauguration of Richard Nixon in January 1969, Hoover pushed the U.S. Department of Justice (DOJ) to prosecute Panther leadership on a host of charges, including for engaging in a seditious conspiracy against the national government.

The first story that Caldwell wrote about the Panthers was published on September 6, 1968, and headlined “Black Panthers: ‘Young Revolutionaries at War.’”¹³ A few days after the story went to print, Caldwell was in the San Francisco Bay Area when a local jury convicted Huey Newton of involuntary manslaughter in the death of an Oakland policeman. Caldwell’s subsequent story in the Times on September 10, 1968, bearing the headline “Angry Panthers Talk of War and Unwrap Weapons,” chronicled the reaction of Panther members in the Bay Area.¹⁴ It also described how a Panther member uncovered a stash of rifles hidden in a San Francisco apartment and prepared to transport them to Oakland.

Caldwell returned to New York, where he was soon contacted by two FBI agents who wanted more information about the weapons Caldwell had seen and about the Panthers with whom he had interacted. This was the first of many attempts by the FBI to persuade Caldwell to feed them information about the Panthers. He repeatedly refused. During 1969 and 1970, after he had relocated to the Times’s San Francisco bureau, Caldwell enjoyed unparalleled access to Panther leaders and their national headquarters.

On December 14, 1969, the Times published an article written by Caldwell under the headline “Declining Black Panthers Gather New Support from Repeated Clashes with Police.” The article chronicled how the government had succeeded in incapacitating almost every senior Panther official, either by putting them in jail (Newton and Seale), forcing them into exile to avoid incarceration (Panther “Minister of Information” Eldridge Cleaver, author of the best-selling book Soul on Ice), or—as in the then fresh case of Chicago Panther leader Fred Hampton—killing them. The Hampton murder, orchestrated jointly by Chicago police and the FBI, had the unintended consequence of engendering unprecedented support for the Panthers in the white community. For this story, Caldwell interviewed David Hilliard, the Panther “Chief of Staff” and most senior official not then either in prison, in exile, or dead. During the interview, as chronicled in Caldwell’s story, Hilliard said, among other things, that the Panthers “advocate the very direct overthrow of the Government by way of force and violence.”¹⁵

After the article’s publication, Caldwell later recounted, the FBI called him every day for a month. The Times’s San Francisco Bureau Chief Wallace Turner told Caldwell to let the administrative assistant in the office field the calls, which Caldwell never returned.¹⁶ On February 2, 1970, a federal grand jury issued a subpoena to Caldwell specifically referencing his December article and ordering him to bring notes, tape recordings, and documents about his interactions with the Panthers to a federal grand jury.

The Times hired a San Francisco lawyer, John Bates, a partner in the prominent firm Pillsbury, Madison & Sutro, to represent Caldwell. But when they first met, Caldwell said, Bates advised him that he likely had information about the Panthers to which the government was legally entitled. Caldwell wondered, “These are the lawyers they hired for me?”¹⁷ He wanted no part of it, and through an organization of Black journalists, he was directed to Anthony Amsterdam.

Amsterdam was widely considered to be a profound thinker—he was among the most highly regarded law professors in the country, a founder of the practical clinical legal education movement, and a passionate civil rights advocate with a particular focus on challenging the constitutionality of the death penalty. Caldwell met with Amsterdam late at night the day before he was due to appear in federal court. According to Caldwell, the professor told him that he, Amsterdam, would appear in his place. “He was more concerned about my going to jail than I was,” Caldwell recalled.¹⁸

The original subpoena was not enforced following a series of conversations between Amsterdam and Victor Woerheide, the DOJ lawyer who had been dispatched to San Francisco by Attorney General John Mitchell to lead the grand jury investigation. Woerheide was known as a “junkyard dog”¹⁹ within DOJ and was often assigned to high-profile cases, from prosecuting Americans (including Ezra Pound) for treason following World War II to indicting Dr. Jeffrey McDonald for the murder of his family years after the Caldwell subpoena litigation.²⁰ Following his negotiations with Amsterdam, Woerheide issued a new subpoena on March 16, this one directed only to Caldwell (and not the Times) and calling only for his testimony, no notes or tapes.

Caldwell moved to quash the subpoena, and U.S. District Judge Alfonso Zirpoli granted the motion in part from the bench on April 3, 1970. Zirpoli ordered Caldwell to appear before the grand jury, but he also issued a broad protective order relieving the reporter from any obligation to answer questions about confidential sources or information he had received in confidence unless the government could demonstrate a “compelling and overriding national interest.”²¹ This was the standard that Amsterdam had proposed in his brief and represented the first time a court had held that the First Amendment protected reporters from the compelled disclosure of information.

Caldwell, however, was not as enamored of the decision as was the Times, which considered it a great victory for reporters everywhere.²² He became concerned that his very appearance before the closed doors of the grand jury room would cause the Panthers to distrust him and cut off his access to them and their activities.

In the wake of Zirpoli’s order, therefore, Caldwell declined to appear before the grand jury at all, and the court held him in contempt. At the contempt hearing, Woerheide argued that Caldwell should be promptly incarcerated until he agreed to appear and testify, but Zirpoli permitted him to remain free pending appeal to the Ninth Circuit.²³ That court heard argument on September 9, 1970, before a panel of appellate Judges Charles Merrill and Walter Ely Jr. and U.S. District Judge William Jameson of Montana. Caldwell did not attend the argument,²⁴ but he was well supported by amicus briefs, including from the American Civil Liberties Union, Newsweek, and the Times itself.

When the Ninth Circuit issued its decision on November 16, 1970, it was Judge Merrill writing for the unanimous panel.²⁵ Ruling in Caldwell’s favor, he concluded that “where it has been shown that the public’s First Amendment right to be informed would be jeopardized by requiring a journalist to submit to secret Grand Jury interrogation, the Government must respond by demonstrating a compelling need for the witness’s presence before judicial process properly can issue to require attendance.”²⁶ Judge Jameson wrote a concurring opinion to underscore that the burden should be placed on the government to demonstrate the requisite compelling need before a subpoena could be enforced.²⁷

DOJ was not about to let it go. The case was teed up for appeal to the U.S. Supreme Court. And Caldwell kept on writing, publishing a March 1, 1971, front-page article entitled “The Panthers: Dead or Regrouping?”²⁸

In re Pappas

All the way across the country, Paul Pappas, too, ended up in the U.S. Supreme Court after an encounter with the Black Panthers.

Pappas was a cameraperson for what was then Channel 6, WTEV in New Bedford, Massachusetts. He worked out of the station’s Providence, Rhode Island, office. In July 1970, the national unrest over racism, poverty, police mistreatment, and more surfaced in a significant way in New Bedford. The town was once the capital of the New England whaling industry but was suffering through tough economic times. Racial tensions were high, not only between whites and Blacks but between whites and Cape Verdeans and Blacks and Cape Verdeans, descendants of the West Africans who worked on Portuguese slave and whaling vessels.

Several days of violence erupted in early July in the city’s West End neighborhood. A young Black man was reportedly shot by young whites cruising the neighborhood. Protesters took over a local market, Pieraccini’s Variety, which would soon become the local headquarters for the National Committee to Combat Fascism, an initiative of the local chapter of the Black Panther Party.²⁹ According to contemporaneous accounts, the Panthers covered up the store with plywood, drilled gun portals in the wood, and deployed sandbags and other protective reinforcements.³⁰

The struggle between the Panthers and the Commonwealth of Massachusetts was on. The Panthers said they wanted to use the building for education, training, and meetings, in addition to responding to threats of police violence. The New Bedford and Massachusetts State Police believed the location presented a violent threat to public safety and suspected that weapons were being stockpiled there.

Pappas was a Navy veteran of World War II and was considered the most dependable of the station’s three camerapersons, according to Truman Taylor, a WTEV news anchor.³¹ Taylor received a call on July 30, 1970, from Bob Heard, a local Black Panther leader, who said the station should send someone to the building on Kempton Street that afternoon. Pappas drove up from Providence but initially could not get to the building because the streets were blocked. He left but was called back by the Panthers. When he returned, he filmed a statement by Heard, the local Black Panther leader, and, according to the order of a state court judge, that recording was later voluntarily turned over to the district attorney. That evening, Panther leaders told Pappas they were expecting the building to be raided by police. They invited him to spend the night inside the headquarters on one condition: If the raid occurred, he could use what he filmed, but if no raid materialized, he would broadcast no story and would not reveal what he saw or with whom he talked.

Pappas agreed. He stayed that night and left in the early morning. There was no raid. Pappas aired no story.³² It remains unclear whether police knew Pappas was inside and either did not want to be filmed or did not want to risk having him harmed. Whatever the reason, the raid occurred the next day at about 6 a.m., shortly after Pappas had departed. Police arrested 21 people and charged them with conspiracy to commit murder and other crimes.³³

On September 24, 1970, Pappas received a summons ordering him to appear before a Bristol County Grand Jury. Prosecutors wanted to know what he had seen and heard inside the former market. A New Bedford lawyer who represented local newspapers, William H. Carey, offered to represent Pappas.³⁴ Four days later, Pappas announced that he would refuse to answer any questions that related to what took place inside the building that night.

On September 30, 1970, with Carey at his side, Pappas appeared before Judge Frank Smith in the same New Bedford courtroom where Lizzie Borden was acquitted in 1893 of killing her father and stepmother. Demanding that Pappas be required to answer questions was Assistant District Attorney Armand Fernandes Jr., who had previously worked on the case against Senator Edward Kennedy (D-MA) arising from the fatal car accident at Chappaquiddick in 1969.³⁵ Of the demand to Pappas, Fernandes explained, “if they had semi-automatic weapons in there, we thought we had a right to know.”³⁶ But Carey argued that Pappas, as a member of the news media, should not be forced to divulge information given to him in confidence. To do so, Carey argued, would make it difficult to obtain information in the future and would raise doubts about Pappas’s ability to keep promises not to divulge information he had received in confidence.

Judge Smith did not send Pappas to jail that day and said he would rule soon. On October 16, 1970, he held that Pappas had no right under the First Amendment to refuse to appear before the grand jury.³⁷ Smith’s ruling is not readily available on legal databases, but it was published in full at the time in the Providence Journal.³⁸ “No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice,” Smith wrote.³⁹ He noted, but was plainly not influenced by, Judge Zirpoli’s ruling in Caldwell’s case, holding that “Pappas does not have any privilege and must respond . . . and testify to such questions as may be put to him by the grand jury.”⁴⁰ He ordered the cameraperson to comply with the summons, but he also took advantage of a Massachusetts judicial procedure that allows a judge facing an important constitutional question to refer it to the Supreme Judicial Court, the highest state court.⁴¹

The case was argued on January 5 and 6, 1971, again pitting Carey against Fernandes. Like Caldwell’s appeal, Pappas was well supported by amicus briefs from all three broadcast networks—NBC, CBS, and ABC—as well as the Radio and Television News Directors Association. On January 29, 1971, the Supreme Judicial Court ruled against Pappas in a unanimous, 7–0, decision written by Justice R. Ammi Cutter,⁴² a respected jurist.⁴³ The opinion discussed at some length the Caldwell decision that had by that time been issued by the Ninth Circuit,⁴⁴ but ultimately disagreed with that ruling and concluded, “there exists no constitutional newsman’s privilege, either qualified or absolute, to refuse to appear and testify before a court or grand jury. The obligation of newsmen, we think, is that of every citizen to appear when summoned, with relevant written or other material when required, and to answer relevant and reasonable inquiries.”⁴⁵

Pappas was not a crusader. By all accounts, he was a dedicated professional who was just doing his job. But one colleague who worked with him at various times, David Layman, a news anchor, recalled, “I think Paul was proud of what he did, that he stood up for the First Amendment.”⁴⁶

Branzburg v. Hayes

Paul Branzburg had no connection to the Black Panthers. His road to join Caldwell and Pappas at the U.S. Supreme Court involved a different subject entirely, albeit one that similarly mirrored the societal changes and conflicts that marked the 1960s.

Branzburg was a graduate of both the Columbia University School of Journalism and Harvard Law School. By 1969, he was an investigative reporter at the Louisville Courier-Journal in Kentucky, a well-regarded newspaper with a reputation for solid journalism. Branzburg developed an interest in the growing drug culture in Louisville and the fact that law enforcement did not seem able to do anything about it. He arranged to visit a lab where illegal hashish was being manufactured and, in a front-page story on November 15, 1969, he described what he saw there.⁴⁷ He wrote about how two men chopped up and cooked marijuana stems with other ingredients to manufacture the valuable and lucrative hashish, which would earn them as much as $5,000 in sales every three weeks. To secure the access necessary to tell the story, Branzburg agreed to change the names of the hashish manufacturers and omit any identifying information.

Neither Branzburg nor his editors expected any difficulty. “We knew he was going to witness illegal activity,” recalled his editor, Paul Janensch.⁴⁸ “He was going to witness a crime, but he wasn’t going to participate. We didn’t have any concern about it.”

But local law enforcement officials were under heavy scrutiny because of what was generally perceived as a growing drug problem, and they wanted to find out who was running the hashish lab and to prosecute them. Initially, Branzburg may have appreciated the hubbub he created. “He loved the attention,” Janensch later recounted, “he was very independent.” Janensch said Branzburg came up with the idea for the story on his own. “He said this was a much bigger problem than we realized.”⁴⁹

According to Janensch, Jefferson County Commonwealth’s Attorney Edwin Schroering Jr. “was furious at us for running the story. He was embarrassed by it. The newspaper found this was a problem, and where was law enforcement?”⁵⁰ Schroering issued a subpoena for Branzburg to appear before a grand jury to identify the drug manufacturers described in his story. Branzburg declined to appear and, on November 25, 1969, Jefferson County Circuit Judge J. Miles Pound ordered Branzburg to answer the grand jury’s questions. Pound said he would hold Branzburg in contempt the next day, but the Kentucky Court of Appeals temporarily blocked any action by Pound pending appeal.⁵¹

The battle was joined, featuring two lawyers who would continue to face off all the way to the U.S. Supreme Court. Branzburg was represented by Edgar Zingman, outside counsel for the Louisville newspaper, and Schroering stayed with the case all the way to its conclusion. Two days after the first showdown with Judge Pound, the Kentucky Court of Appeals ruled, 5–1, against Branzburg.⁵² The Court of Appeals was at that time the highest court in the state. The opinion was authored by Roy Vance, whose title was “commissioner.” The chief justice, Edward Hill, dissented.⁵³

Kentucky was one of the only states at the time that had enacted a so-called shield law designed to protect journalists from the compelled disclosure of confidential sources.⁵⁴ The Court of Appeals, however, held that the law applied only to protect a journalist from having to disclose a confidential source of information and did not apply to the information itself. Because Branzburg witnessed the actual crime of manufacturing hashish, the court concluded, he could not hide the identity of the sources who were the criminals. If the statute covered witnessing crimes, Vance wrote, “[s]uppose a newsman or reporter should see the President of the United States . . . assassinated”; the reporter could refuse to identify the assassin.⁵⁵ Judge Hill’s dissent argued that the term “source” was “a broad, comprehensive one” and chastised the court for ignoring the legislature’s intent.⁵⁶

There was no immediate action taken against Branzburg in the wake of the appellate ruling since he and the newspaper intended to appeal to the U.S. Supreme Court. Branzburg, however, was not one to stand down. He took his drug culture reporting 55 miles down the road to the state capital, Frankfort. In a front-page article on January 10, 1971, headlined “Rope Turns to Pot: Once an Industry, Kentucky Hemp Has Become a Drug Problem,” he chronicled two weeks of interviews that documented the increased use of marijuana by young people in the area.⁵⁷ The use of illegal substances, he reported, was spreading to include LSD, amphetamines, and even heroin. In a companion article the same day, he described how marijuana smokers viewed drug laws as archaic and misinformed, which was in turn prompting contempt for law and authority.⁵⁸

Eight days later, Branzburg was subpoenaed again, this time to appear before a grand jury in Franklin County, where Frankfort is located. Zingman again moved to quash the new subpoena on First Amendment grounds and directed Franklin County Circuit Judge Henry Meigs to the protective order issued by Judge Zirpoli in San Francisco. On January 22, 1971, Judge Meigs denied the motion to quash but issued a protective order to keep Branzburg from having to identify people who spoke to him in confidence. On January 25, however, the Kentucky Court of Appeals again ruled against the reporter.⁵⁹ With Commissioner Vance again writing, the Court of Appeals unanimously rejected “the drastic departure” by the federal court in Caldwell “from the generally recognized rule that the sources of information of a newspaper reporter are not privileged under the First Amendment.”⁶⁰ This time, the Court of Appeals refused to issue a stay that would have given Branzburg the opportunity to appeal to the U.S. Supreme Court before the contempt citation against him was enforced. According to Branzburg’s attorney Zingman, Justice Potter Stewart issued a stay that gave Branzburg time to appeal to the U.S. Supreme Court.⁶¹

By this time, Judge Pound had retired and had been replaced by Judge John Hayes. Although Branzburg had now lost twice in the Kentucky Court of Appeals and was under orders to appear before two separate grand juries, he did not agree to testify. His case was now on the same path to the U.S. Supreme Court that Caldwell and Pappas followed.

There was one difference, though. Branzburg, apparently fearing that he would face a choice between going to jail and compromising his deeply held belief that the First Amendment must protect the ability of journalists to protect confidential sources, moved to Michigan and went to work for the Detroit Free Press. In so doing, he put himself effectively beyond the immediate reach of the two grand juries then on his tail.⁶²

Getting to the U.S. Supreme Court

Petitions for certiorari in the three cases—Caldwell, Branzburg, and Pappas—arrived separately at the U.S. Supreme Court in the spring of 1971. Court records suggest that the justices first examined one or more of the petitions in April but ultimately decided to wait until they could consider all three together. When the justices finally discussed the cases at their private weekly conference, the vote was overwhelming to hear all three. Although it takes only four votes for the Court to schedule a case for briefing, oral argument, and decision, there were seven justices in favor of granting such review in all three of these.⁶³ Some justices split their votes. Justice Douglas wanted to hear the Pappas case but not Branzburg or Caldwell. Justice Hugo Black voted to hear only Caldwell,⁶⁴ and Justice Stewart voted to hear only Branzburg. Chief Justice Burger and Justice John Harlan favored hearing Caldwell and Pappas and holding Branzburg until the others were decided.

The decision to take up the issue was not surprising, as the Ninth Circuit had recognized Caldwell’s First Amendment right not to appear before the grand jury, while the Kentucky Court of Appeals and the Massachusetts Supreme Judicial Court had ruled against Branzburg and Pappas, respectively, creating a split of views in the lower courts on a question of constitutional law. On May 3, 1971, the Court announced that it would hear all three cases. By that time, the Court was nearing the last weeks of its term, and according to procedure, the cases would be heard the following fall at the earliest.

Before the cases could be argued, however, the Supreme Court became the focal point of its own drama. Justices Black and Harlan both voted to hear one or more of the three cases, but they would never get to do so. The cases were ultimately scheduled to be argued in February 1972. Justice Black, who was very ill, retired on September 17, 1971, and died eight days later. Justice Harlan, whose health was also in serious decline, retired on September 23, 1971, and died on December 29. As the new term opened in October 1971, the Court had two empty seats. President Nixon had already faced challenges filling a vacancy a year earlier that eventually went to Harry Blackmun after the Senate rejected two of his nominees, U.S. Appeals Court Judges Clement Haynsworth and Harrold Carswell. To replace Black and Harlan, Nixon sought to nominate the first woman justice, Judge Mildred Lillie of the California Court of Appeals, and Herschel Friday, an Arkansas lawyer. Lillie was rated not qualified by an American Bar Association Committee; the same committee deadlocked on Friday, meaning he missed the chance to have a qualified rating. Nixon scrapped both nominations.⁶⁵

Instead, he nominated prominent Richmond, Virginia, lawyer Lewis Powell and a little-known DOJ official, William Rehnquist, who was head of the Department’s Office of Legal Counsel. Both men were confirmed and sworn in on January 7, 1972, about six weeks before the arguments in the reporters’ cases.

The Argument

The Court heard arguments separately in each of the three cases. After a Monday federal holiday, on Tuesday, February 22, 1972, Caldwell was argued in the afternoon, the fourth case of the day.⁶⁶ The argument pitted two legal legends against one another, Solicitor General Erwin Griswold, former dean of Harvard Law School, for the government, and the civil rights lawyer and constitutional scholar Amsterdam for Caldwell.

Eyebrows were raised when, after the chief justice called the case for argument, newly minted Justice Rehnquist remained in his seat instead of recusing himself from the case. As the assistant attorney general in charge of the Office of Legal Counsel, a position he had relinquished barely a month earlier, Justice Rehnquist had participated in formulating the Nixon administration’s position that Solicitor General Griswold would now be arguing for the government. Moreover, as the Times U.S. Supreme Court correspondent Fred Graham later reported, “[a]t a panel discussion in Washington on Oct. 29, 1970,” while the Caldwell case was pending in the Ninth Circuit, Rehnquist had publicly “defended the power of the courts to compel testimony as ‘the cornerstone of civil and criminal litigation.’”⁶⁷ In reply to journalists’ argument that compelling newspersons to disclose confidences would violate the First Amendment by damaging their capacity to gather news, Rehnquist, as head of DOJ’s Office of Legal Counsel, asserted that “the core of this freedom is the right to print” and that it did not apply with the same force to “restraints on the gathering of news.”⁶⁸

Nevertheless, Rehnquist did not recuse himself. He kept his seat and participated in the argument and subsequent decisions in Caldwell and the other two cases.

The next morning, February 23, after the justices announced six decisions in other cases, Branzburg was up first with three lawyers arguing: Zingman represented Branzburg; Schroering represented the Commonwealth of Kentucky; and William Bradford Reynolds, later a prominent legal figure in the administration of President Ronald Reagan, appeared as a friend of the court for DOJ, siding with Schroering. After lunch, the justices considered the Pappas case. The cameraperson was represented by a legendary Supreme Court advocate, E. Barrett Prettyman Jr.; an assistant state attorney general, Joseph Hurley, represented Massachusetts; and Reynolds appeared again, this time arguing in support of Massachusetts.

In the first argument, Griswold on behalf of the government claimed the issue was a narrow and specific one: the refusal of a reporter to appear before a grand jury even to discuss information that was not obtained from confidential sources given that Judge Zirpoli had issued a protective order to keep Caldwell from having to reveal confidences. Griswold said the Ninth Circuit ruling was “unprecedented. I know of no other decision that has held that a newsman or any other person need not appear before a grand jury.”⁶⁹ He also downplayed the many amicus briefs filed by major news organizations, arguing that they addressed circumstances—specifically, a reporter’s right to protect the identities of confidential sources—that were not the issue in the Caldwell case.

Amsterdam, arguing on behalf of Caldwell, and standing at the same lectern where he argued for striking down the death penalty little more than a month earlier, presented the issue as “the accommodation of two very important concerns: the grand jury’s investigative process on the one hand, and the reporter’s investigative process on the other.”⁷⁰ He argued that the Ninth Circuit was correct that the government had a significant burden to demonstrate a compelling need for a reporter’s testimony, “which it has never made or attempted to make in this case.”⁷¹

The next morning, Zingman, arguing on behalf of Branzburg, was first up. Branzburg was not present, but the Louisville Courier-Journal’s publisher, Barry Bingham, and managing editor, George Gill, were in the courtroom. Zingman argued that, unless a court first finds that the government has a compelling need for information, “the First Amendment protects the newsman from being compelled to enter a closed proceeding and from being compelled to disclose confidential information.”⁷²

In what may have foreshadowed the outcome, Justice White gave Zingman a particularly hard time. Why, White asked, “would the people that [Branzburg] saw running this hashish laboratory permit him to publish the fact that there was this laboratory operation, but say please don’t publish our names?”⁷³ The reporting examined new and controversial elements of society, Zingman responded, “the unorthodox, the rebellious, the youth, the drug culture, the hippies, the dissidents. It is important for the community at large to understand their position.”⁷⁴ Not satisfied, White pressed, “Shouldn’t the public have a right to know the sources of that information?”⁷⁵

Schroering, for his part on behalf of the state, faced immediate hostility from Justice Douglas, not for his argument, but for his brief. “Is your only brief this little, three, four-page brief?” Douglas asked derisively.⁷⁶ Schroering acknowledged that it was, arguing that no more was required because the newspaper had failed to preserve its First Amendment argument in the Kentucky courts, a tack that gained little traction. Ultimately, Schroering stressed that the grand jury is rooted in constitutional history. “Doesn’t their constitutional duty carry heavier weight in this connection than the corresponding privilege which is advanced here” by the news media, he asked rhetorically.⁷⁷

Reynolds, appearing as a friend of the court for DOJ, argued that any privilege would have to apply not just to the news media through the First Amendment’s press clause, but also to every citizen through the speech clause. This, Reynolds argued, “would be wholesale interference with the grand jury.”⁷⁸

Years later, Zingman would say that he “was satisfied with the argument, probably the first step to losing.”⁷⁹

After the lunch break, Prettyman argued on behalf of Pappas. “The general rule that I would lay down,” he said in response to a question from Justice White, “is that there is a privilege and that there is a presumption that the newsman is protected, and then and only then can the government come in with its burden and attempt to carry it by showing the various elements” of necessity.⁸⁰ Hurley, for Massachusetts, argued that the question should be left to state law: “Unless this Court can rule that such a privilege is indispensable to the operation of a free press, this case does not rise to the constitutional level.”⁸¹

Reynolds, arguing again as a friend of the court for DOJ, was admonished at the outset by the Chief Justice that he need not repeat points he had already made. Instead, he largely underscored the Nixon administration’s position “that no constitutional privilege exists in the First Amendment now, and one should not be recognized.”⁸²

Despite the two days set aside for argument, there was one advocate who did not address the Court—Alexander Bickel, the Yale Law School professor who was fresh off his victory arguing for the Times in the Pentagon Papers case the previous June. Even before the Pentagon Papers litigation, Bickel had been retained by the Times to prepare an amicus brief supporting Caldwell in the Supreme Court. Although the newspaper had been a party to the proceedings in the district court, it had not joined Caldwell’s appeal to the Ninth Circuit, so it did not have the standing of a party before the Supreme Court either. Nevertheless, the Times moved the Court to allow Bickel to argue on behalf of it and other amici who had joined its brief (including the television networks and other major media entities). Those plans were dashed when counsel for the Washington Post and Newsweek, which had filed a separate amicus brief arguing in favor of an absolute privilege (as opposed to the qualified privilege favored by Amsterdam and Bickel), sought argument time as well. The Court denied both requests.⁸³

In his amicus brief, Bickel framed the issue not simply in terms of a reporter’s right to a confidential relationship with sources but in the larger context of the public’s right to receive information. “The right of the public to be informed by print and electronic media, which is deeply rooted in the First Amendment, coincides with a reporter’s right of access to news sources unimpeded by government,” Bickel wrote.⁸⁴ He proposed a three-part test that the government must meet before a subpoena to a reporter could be lawfully enforced: that there be probable cause that the reporter has information about a specific crime; that the government cannot obtain the information elsewhere; and that the government has a compelling need for it.

The Deliberations

Later that week, the justices met in their regularly scheduled, closed-door conference to discuss and vote on the three cases. According to handwritten notes taken by Justice Brennan,⁸⁵ the debate was lively in the conference room just off the chambers of the chief justice. Burger, as was his prerogative as chief, began the discussion by rejecting “categorically” any suggestion that there was a constitutional right involved in any of the cases. Douglas, the most senior associate justice, spoke next and said he thought the Ninth Circuit had gotten it right. Stewart said he believed there must be “some kind of qualified privilege” for reporters, while White maintained he would not find “any privilege at all,” and especially would not protect a reporter who witnessed a crime. Marshall—like Stewart—said he favored a qualified privilege, but would have required reporters to appear before the grand jury to testify about nonconfidential information. Brennan’s notes do not reflect comments by himself or Blackmun. Powell emphasized that the Court was “writing on a clean slate” and did not “have to give constitutional status to newsmen,” advocating instead that the issue be left to state legislatures. Brennan’s notes record Rehnquist, who spoke last, as agreeing with Powell.

The tally sheets kept by Brennan and other justices show a 5–4 vote to reverse the Ninth Circuit and rule against Caldwell, and 5–4 votes to affirm the Kentucky and Massachusetts rulings against Branzburg and Pappas.

Burger assigned the majority opinion to White. Branzburg became the lead case; it is not clear why but perhaps because it was the most straightforward example of a reporter witnessing illegal activity and declining to testify. It might also have been simply because, although the Caldwell case had received by far the most national attention of the three, “C” comes after “B” in the alphabet.

White circulated a draft majority opinion in late May. Blackmun quickly joined it, followed by Rehnquist. Burger did not respond for more than a week, but then he, too, joined White, giving him four votes. Stewart notified his colleagues that he would be writing a dissent, and Douglas quickly wrote his own dissent in Caldwell, which he intended to cover all three cases. Suspense remained, however, because Powell did not respond at all; he would be the fifth vote for White, or perhaps he would take a different position.

Stewart circulated his draft dissent on June 19; Brennan and Marshall joined it the next day. But still no word from Powell.

Although Powell was a newcomer to the Court, he had already begun a practice he would follow for years to come. After oral argument, he would dictate a memo outlining his initial impressions of the case and how it might be decided. In his memo in these cases, Powell was adamant that the tests advocated by the media lawyers, imposing a First Amendment–based burden on prosecutors to show a compelling need for testimony, “go much too far.”⁸⁶ He expressed interest in the protective order that Judge Meigs had issued in the second Branzburg case, relieving the reporter from having to disclose confidential sources but requiring him to appear at the grand jury to discuss criminal activity he had witnessed. Powell mused that the obligation to appear might extend to “crimes which might be planned or discussed in his presence.”⁸⁷

Powell’s memo gave no inkling that he would eventually write a concurring opinion. But when White circulated another draft on June 23, still with only four votes, Powell was busy writing a short concurring opinion, which he sent to his colleagues the next day. Powell’s concurrence gave White the majority he needed, but it took a decidedly different tack.

Powell’s draft (and final opinion) said, “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.”⁸⁸ Powell maintained that news reporters would be able to contest grand jury subpoenas through motions to quash “if a newsman believes that the grand jury investigation is not being conducted in good faith.”⁸⁹

Powell made one change in his draft between June 24 and June 28, restating a crucial passage from negative to positive. The initial draft concluded, “We do not hold that the protection of the Courts is unavailable to newsmen under circumstances where legitimate First Amendment interests require protection.” The final version, in contrast, concludes, “[i]n short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.”⁹⁰

One other comment by Powell may shed some light on what he intended when he wrote about “legitimate First Amendment interests” that “require protection.” On his docket sheet for the Caldwell case, Powell added a handwritten note that, on the one hand, appeared to reject a First Amendment–based privilege but, on the other, asserted that “there is a privilege analogous to an evidentiary one, which courts should recognize” and apply “case by case to protect confidential information.”⁹¹

Powell’s law clerk on the case, J. Harvie Wilkinson, who would himself become a distinguished judge on the U.S. Court of Appeals for the Fourth Circuit, has since explained that Powell believed White’s opinion “was too absolute.”⁹² Wilkinson said Powell was confident that, “if you left it to courts on a case-by-case basis, they would figure out when a subpoena was necessary.”⁹³

Both Wilkinson and Stewart’s law clerk, Benjamin W. Heineman Jr., later a highly regarded Washington, D.C., lawyer who became a senior vice president at General Electric, have since revealed that Stewart’s dissent was written with the hope of capturing Powell’s vote and becoming the majority opinion. Heineman recalled asking Stewart if he would meet with Powell in person to try to persuade him. Stewart explained that he was lobbied by Justices Felix Frankfurter and Black after he first joined the Court in 1958. “I resented it and vowed I would never lobby,” Heineman quoted Stewart as saying.⁹⁴

In late June, White made a number of revisions to his majority opinion, mostly strengthening his argument that the grand jury performs a constitutionally mandated investigative role. Moreover, he added a passage arguing that only an absolute privilege could satisfy reporters because a qualified one would mean that they would have to reveal their sources when a court deemed it necessary, thereby imposing a disincentive for sources to provide information in any event.⁹⁵

On June 26, with no warning, Burger distributed a draft concurring opinion to his colleagues. It asserted that the news media had operated for 200 years without a privilege to protect confidential sources from grand jury disclosure, doubting the dissent’s argument that the majority opinion would cause media sources to dry up. He also challenged a “mistaken step in the analysis of the three dissenters . . . the assumption that there is some constitutional right to gather news in a particular way.”⁹⁶ For unknown reasons, Burger ultimately withdrew his concurrence; it was never issued as part of the Court’s ruling.

The stage was set for the case to be announced on June 29.

The Decision

As Chief Justice Burger announced in the courtroom that morning, the Court’s majority opinion, written by the absent Justice White, held that nothing in the First Amendment protected a reporter from appearing and testifying before a grand jury. In the end, White’s opinion was notable for three things beyond its result.

First, it appeared to reject flatly the fundamental contention that undergirded the reporters’ reasoning—i.e., that the First Amendment protects not only against direct prohibitions on a newspaper’s ability to publish (as in the Pentagon Papers case), but also against indirect restraints on publication, including the impact that coercing reporters to testify about their confidential news sources has on those sources’ inclination to provide information to reporters (and through them to the public) in the first place.⁹⁷

Second, it did so in language that reflected a pronounced skepticism that the American press needed much legal protection at all, as well as an undercurrent that the press had grown so powerful that it didn’t need the kinds of First Amendment–based rights it claimed.⁹⁸

And, third, White’s opinion left open only the smallest of roles for the First Amendment in cases not involving direct restraints on publication—as he explained it, reporters might be spared from the compelled disclosure of their journalistic work product, including apparently the compelled disclosure of the identities of sources to whom they had promised confidentiality, only on a showing that the government had acted in “bad faith”—i.e., for the purpose of harassing or retaliating against the reporter without a legitimate law enforcement purpose.⁹⁹

In the final version of his concurring opinion that Justice Stewart pronounced “enigmatic,”¹⁰⁰ Powell appeared to take some of the edge off the majority’s rhetoric.¹⁰¹ He wrote separately, he said, to “emphasize” what he understood to be “the limited nature of the Court’s holding,” which, as he saw it, did not leave journalists entirely “without constitutional rights with respect to the gathering of news or in safeguarding their sources.”¹⁰² Still, Justice Powell joined in White’s opinion on behalf of the Court’s 5–4 majority, including its declaration that journalists enjoy no “First Amendment privilege to refuse to answer the relevant and material questions asked during a good-faith grand jury investigation,” much less a constitutional right “to refuse to appear before a grand jury” at all.¹⁰³

As noted, there were four dissenters from the White-led majority. Stewart, writing for himself, Brennan, and Marshall, said the Court should recognize a qualified privilege of the kind advocated by counsel for the reporters and the Times (Amsterdam, Zingman, Prettyman, and Bickel).¹⁰⁴ Douglas wrote separately in Caldwell to voice his support for an absolute privilege of the kind advocated by the Washington Post and Newsweek.¹⁰⁵

The Aftermath

Much ink has been spilled over the last half century, especially in legal briefs and law review articles, about the Branzburg decision. Despite the relatively steady stream of journalists who have been held in contempt since 1972 (including several who have actually been incarcerated for refusing to identify their sources), it remains the U.S. Supreme Court’s one and only case to address the issue.

As those briefs and articles typically explain, the lower courts largely ignored the decision for some 30 years, aided and abetted by a particularly influential law review article written by the Times’s general counsel, James Goodale, that summer.¹⁰⁶ That article urged the news media’s lawyers to declare victory in Branzburg, despite its result, and attempt to convince courts in subsequent cases that the Supreme Court’s decision had actually endorsed a robust reporter’s privilege enshrined in the First Amendment. The blueprint he provided to the then nascent “media law bar” was, over the next 30 years, faithfully argued in literally hundreds of cases: Powell’s “enigmatic” concurring opinion, the grand jury setting in which all three journalists had been held in contempt, as well as the facts that Caldwell and Branzburg had declined even to appear before the grand juries that subpoenaed them and all three reporters had at least allegedly observed their sources committing criminal acts, taken together, combined to limit the Supreme Court’s apparent rejection of a constitutional reporter’s privilege only to those exceedingly rare efforts by reporters to avoid even appearing before grand juries seeking their eyewitness testimony about criminal acts committed by their sources in their presence.

For more than three decades, Goodale’s gambit was extraordinarily successful. Between 1972 and 2003, virtually every federal court of appeals and the highest courts of most states recognized a fairly robust reporter’s privilege, grounded in the First Amendment, in a variety of contexts, from civil to criminal cases, from subpoenas seeking the identities of confidential sources to those demanding nonconfidential, but nevertheless unpublished journalistic work product, and even to an occasional subpoena issued by a grand jury.¹⁰⁷ All that began to change, however, in 2003 when a highly influential federal appellate judge in Chicago, Richard Posner, authored a decision enforcing in the courts of the United States a subpoena issued in a foreign criminal proceeding for the unpublished (but nonconfidential) recordings of interviews conducted by two journalists.¹⁰⁸ In his opinion, Posner pointedly criticized the “large number of cases” that had concluded, “rather surprisingly in light of Branzburg that there is a reporter’s privilege” as well as those that had treated Powell’s concurrence as limiting the scope of White’s opinion for the Court’s majority.¹⁰⁹

In the years since Judge Posner’s broadside, other courts have rethought—in both word and deed—the Goodale-inspired limitations on Branzburg’s reach. As a result, reporters have been held in contempt for refusing to identify their confidential sources, not just to grand juries but also to government prosecutors in the context of criminal trials and even to private litigants in civil cases. Some of those reporters (like the Times’s Judith Miller) have been incarcerated,¹¹⁰ others (like USA Today’s Toni Locy) have been assessed substantial fines that their employers were precluded—by court order—from paying on their behalf,¹¹¹ and others (like the Times’s James Risen) have been spared such a fate only because, as it turned out, the federal government did not actually need their testimony but was focused instead on the in terrorem effect (on journalists and putative confidential sources alike) of securing a judicial decision rejecting their claim of constitutional protection.¹¹²

The Caldwell Case: A Coda and a Postscript

Coda

This, more than 50 years after the U.S. Supreme Court decided Branzburg v. Hayes, is the legacy of the judicial proceedings in which Caldwell, Pappas, and Branzburg became embroiled. Following the U.S. Supreme Court’s decision, neither Caldwell nor Pappas ever heard another word from the prosecutors who had caused them to be subpoenaed. They were never recalled to testify before a grand jury, much less to answer questions posed to them in that forum. Only Branzburg was subpoenaed again in Louisville and was sentenced, in absentia, to six months in jail for contempt of court. The governor of Kentucky asked Michigan Governor William Milliken to extradite Branzburg, who had long since moved there, back to Kentucky, but Milliken refused.¹¹³ As a result, Kentucky was never able to jail the former Louisville reporter or to secure his testimony.

In the case of Earl Caldwell, securing his testimony was likely never the goal to begin with. There is substantial reason to conclude that, all along, the government’s purpose was not to receive Caldwell’s testimony, but rather to disrupt his relationship with the Panthers, to make its members—leaders and rank-and-file alike—reluctant to confide in him, and ultimately to impair his ability to provide the Times’s readers with facts about the Party that were at odds with the narrative favored by the FBI and the Nixon administration—that the Panthers were no more than a group of dangerously violent criminals (and Black criminals at that). Years later, Caldwell himself began to suspect as much, telling PBS’s Frontline that, when he was first subpoenaed and all through the litigation that followed, he “thought they just wanted me to be a spy, someone on the inside that could tell them what was going on. . . . Now I believe that was very naïve. . . . I think they wanted to remove the reporters from covering the Panthers. They wanted to isolate them from the press.”¹¹⁴

This, after all, was an explicit purpose of the FBI’s counterintelligence campaign against the Panthers, a campaign that was long suspected by them, but largely dismissed as either propaganda or paranoia by most of the public at the time it was happening. It was not until much later that the public learned the FBI had in fact mounted an aggressive counterintelligence operation against the Panthers that focused, in significant part, on influencing the kind of press coverage the group received. Part of a broader FBI program known as “COINTELPRO,”¹¹⁵ it included efforts to plant stories critical of the Panthers with “friendly” reporters, enlist journalists as FBI informants, and disrupt the Panthers’ relationships with sympathetic organizations, from the churches that housed their “food for children” programs to newspapers that published stories that contradicted the FBI’s preferred narrative—i.e., that the Panthers were a violence-prone street gang that posed a threat to national security.

As J. Edgar Hoover bluntly admonished the special agent in charge of the FBI’s San Francisco office, who had the temerity to question the wisdom of instructions he received from Hoover to take whatever steps proved necessary to stifle news reporting like Caldwell’s about the Panthers’ “breakfast for children” program (which the special agent protested served a salutary purpose in the Black community): “You have obviously missed the point.”¹¹⁶

Focusing his admonishment specifically at the special agent’s observation that “local and national newspapers continue to publicize information” about the Panthers’ efforts to feed hungry children, Hoover emphasized the importance of putting a stop to the favorable press the Panthers had received: “You must recognize that one of our primary aims in counterintelligence as it concerns the [Black Panther Party] is to keep this group isolated from the moderate black and white community which may support it,” an objective “most emphatically pointed out in their Breakfast for Children Program, where they are actively soliciting and receiving support from uninformed whites and moderate blacks.”¹¹⁷

The Panthers were “not engaged in the ‘Breakfast for Children’ program for humanitarian reasons,” Hoover declared. Rather, it was devised by the Panthers “for obvious reasons, including their efforts to create an image of civility, assume community control of Negroes, and to fill adolescent children with their insidious poison.”¹¹⁸

The FBI’s COINTELPRO files, thousands of pages of which were made public years later as the result of FOIA requests by the late journalist Carl Stern, then a distinguished DOJ correspondent for NBC News, as well as by a congressional committee chaired by Senator Frank Church, contain a host of documents describing the FBI’s efforts to stifle “favorable” reporting about the Black Panthers.¹¹⁹ The public record is, however, far from complete. Accordingly, late last year, the authors, along with the Times, filed our own FOIA lawsuit seeking documents concerning the FBI’s efforts to influence and disrupt the Times’s and Caldwell’s reporting about the Panthers. After the lawsuit was filed, the government agreed and has begun to make a rolling production of such documents, which is now in its early stages. To that extent, the full story of the case that became Branzburg v. Hayes remains to be written.

For the moment, this much is true: The FBI and DOJ’s efforts to disrupt and influence news coverage of the Panthers, if it had been known at the time, might have been sufficient grounds for Caldwell to resist appearing before the grand jury that subpoenaed him, even under the cramped view of the First Amendment protections available to him endorsed by the U.S. Supreme Court.¹²⁰ Indeed, the available evidence suggests that Caldwell v. United States may well be a textbook example of government “bad faith,” of a coordinated plan, devised by the FBI and aided and abetted by DOJ under Nixon, as Justice White put it, “not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources.”¹²¹ Ultimately, then, the tragedy of the Caldwell case may be twofold—the U.S. Supreme Court was not only unwilling to recognize the importance of the reporter-source relationship to effective journalism and the First Amendment (a failure for which both journalists and the public continue to pay a high price), but its protestations that “official harassment of the press” has “no justification”¹²² in the law notwithstanding, it failed to provide any mechanism for detecting such government misconduct in a case that may well have been rife with it.

Postscript

Because of his “enigmatic” concurring opinion, conventional wisdom has focused, understandably, on Justice Powell and the notion that he provided the decisive “fifth vote” to form the Court’s majority. For Earl Caldwell, at least, the decisive vote was cast not by Powell, but by William Rehnquist, the other justice appointed to the Court the same day as Powell. Rehnquist participated in the case despite his involvement in formulating the Nixon administration’s position with respect to the reporter’s privilege and despite the public statements he had made, in his official capacity as the assistant attorney general in charge of the Office of Legal Counsel, taking issue with the district court’s decision recognizing a privilege in the Caldwell case itself. If Rehnquist had in fact recused himself from a case that was argued only a few weeks after he left DOJ to join the Court, the Ninth Circuit’s decision in Caldwell’s favor would have been affirmed by a vote of 4–4. As Caldwell has consistently maintained, including in an article he wrote for publication in the Times only a few weeks after the U.S. Supreme Court’s decision, “Justice Rehnquist had made the difference . . . and it makes me sick that the vote that beat us was cast by one of the very men who earlier sat in the Justice Department.”¹²³

Shortly after he wrote those words, Caldwell decided not to publish them, in the Times or anywhere else. In fact, he did not reconsider for another 25 years, when he authorized his article, written on August 5, 1972, to be published (as it was) in the pages of Communications Lawyer.¹²⁴

Endnotes

1. 408 U.S. 238 (1972).

2. 408 U.S. 665 (1972).

3. Id. at 690.

4. Id. at 681.

5. Id. at 682.

6. Id.

7. Id. at 711 (Douglas, J., dissenting).

8. Id. at 725 (Stewart, J., dissenting).

9. Id. at 709 (Powell, J., concurring).

10. Press Loses Plea to Keep Data from Grand Juries, Wash. Post, June 30, 1972, at 1.

11. Court Rules Press Must Give Sources, N.Y. Times, June 30, 1972, at A1.

12. Earl Caldwell, Martin Luther King Is Slain in Memphis; A White Suspected; Johnson Urges Calm, N.Y. Times, Apr. 5, 1968, at A1.

13. Black Panthers: “Young Revolutionaries at War,” N.Y. Times, Sept. 6, 1968, at 49.

14. Angry Panthers Talk of War and Unwrap Weapons, N.Y. Times, Sept. 10, 1968, at 30.

15. Declining Black Panthers Gather New Support from Repeated Clashes with Police, N.Y. Times, Dec. 14, 1969.

16. Interview with Earl Caldwell, Hampton, Va. (May 9, 2018).

17. Id.

18. Id.

19. Robert Sam Anson, The Devil and Jeffrey MacDonald, Vanity Fair, Jan. 1, 2007.

20. Id.

21. Application of Caldwell, 311 F. Supp. 358, 360 (N.D. Cal. 1970).

22. See Editorial, N.Y. Times, Apr. 7, 1970.

23. Reporter Guilty in Contempt Case, N.Y. Times, June 6, 1970.

24. Interview, supra note 16.

25. Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970).

26. Id. at 1089.

27. Id. at 1092 (Jameson, J., concurring).

28. Earl Caldwell, The Panthers: Dead or Regrouping?, N.Y. Times, Mar. 1, 1971, at 1.

29. Local New Bedford, MA History 1970–1979, Whaling City.net, http://www.whalingcity.net/new_bedford_local_history_1970_1979.html (last accessed July 5, 2022).

30. Id.

31. Email from Truman Taylor to authors, Feb. 4, 2021.

32. Id.

33. For a narrative account of these events, see Jama Lazerow, The Black Panthers at Water’s Edge: Oakland, Boston, and the New Bedford “Riots” of 1970, in Liberated Territory: Untold Local Perspectives on the Black Panther Party (Yohuru Williams & Jama Lazerow eds. 2008).

34. Carey later recounted his recollection of these events. See William H. Carey, City Case Set the Standard, Standard Times, June 23, 2002, at B1.

35. Lauren Daley, Retired Associate Justice Quick to Deflect Praise, SouthCoastToday (June 24, 2013), https://www.southcoasttoday.com/story/business/2013/06/24/retired-associate-justice-quick-to/45316601007/ (describing career of Armand Fernandes Jr.).

36. Telephone interview with Armand Fernandes Jr. (June 21, 2016).

37. Judge Upholds Subpoena for TV Reporter’s Evidence, Providence J., Oct. 17, 1970, at 18.

38. The Text of Ruling by Judge Smith, Providence J., Oct. 30, 1070, at 25.

39. Id. at 28.

40. Id.

41. High Court Advisory Opinion Asked, Providence J., Oct. 30, 1970, at 25.

42. Richard Ammi Cutter: Associate Justice Memorial, Mass.gov (1994), https://www.mass.gov/person/richard-ammi-cutter.

43. In re Pappas, 266 N.E.2d 297 (Mass. 1971).

44. Id. at 301–02.

45. Id. at 302–03.

46. Telephone interview with David Layman (Feb. 2, 2021).

47. Paul Branzburg, The Hash They Make Isn’t to Eat, Louisville Courier-J., Nov. 15, 1969, at 1.

48. Telephone interview with Paul Janensch, July 15, 2016.

49. Id.

50. Id.

51. Branzburg v. Pound, 461 S.W.2d 345, 346 (Ky. Ct. App. 1970).

52. Id.

53. Id. at 348 (Hill, C.J., dissenting).

54. Ky. Rev. Stat. § 421.100: “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.”

55. Branzburg, 461 S.W.2d at 348.

56. Id. at 348 (Hill, C.J., dissenting).

57. Paul Branzburg, Rope Turns to Pot: Once an Industry, Kentucky Hemp Has Become a Drug Problem, Louisville Courier-J., Jan. 10, 1971, at 1.

58. Paul Branzburg, Pot Problem Byproduct: Disrespect for the Law, Louisville Courier-J., Jan. 10, 1971, at 1.

59. Branzburg v. Meigs, 503 S.W.2d 748 (Ky. Ct. App. 1971).

60. Id. at 751.

61. Interview with Edgar Zingman, New York City, Dec. 17, 2016.

62. For a recap of Branzburg’s role in the U.S. Supreme Court decision that bears his name, see Andrew Wolfson, Great Constitution Cases from Kentucky, Louisville Courier-J., Sept. 17, 1987, at 1.

63. Docket Sheets, Papers of Justice William J. Brennan Jr., Manuscript Division, Library of Congress, Washington, D.C.

64. Conventional wisdom has long held that Black, who was known as a First Amendment “absolutist” and wrote an eloquent opinion in support of the Times less than two months later in the Pentagon Papers case, would have been an almost certain vote for the reporters in Branzburg v. Hayes had he not retired from the Court before it was decided. See, e.g., Eric B. Easton, A House Divided: Earl Caldwell, The New York Times, and the Quest for a Testimonial Privilege, 2009 Utah L. Rev. 1293, 1316-18. At the time, however, at least one interested party, Yale Law School Professor Alexander Bickel, saw the matter differently. In a private note to Times General Counsel James Goodale in late 1971, after Black had passed away and before a new justice was appointed to succeed him, Bickel—who had written the Times’s amicus brief in the Caldwell case—opined that Black would have likely sided with the government, his “literalist” view of the First Amendment precluding him from recognizing a First Amendment–based privilege that prevented only an indirect restraint on speech. See Handwritten Note, Alexander Bickel to James Goodale, Sept. 25, 1971. Black’s vote to grant review in Caldwell, where the government had lost below, and not in Branzburg or Pappas, in which the government had prevailed, a vote unknown to Bickel at the time, nevertheless supports his thesis.

65. For a history of Nixon’s U.S. Supreme Court nominations, see Louis M. Kohlmeier Jr., God Save This Honorable Court: The Supreme Court Crisis (Charles Scribner’s Sons 1972).

66. At that time, the Court heard two arguments in the morning, for one hour each, starting at 10 a.m., then broke for lunch for an hour, and returned to the bench at 1 p.m. for two more hours.

67. Fred Graham, Issue of Propriety for Rehnquist, N.Y. Times, Feb. 28, 1972.

68. Id.

69. Transcript of Oral Argument at 9, United States v. Caldwell, 408 U.S. 665 (1972) (No. 70-57).

70. Id. at 24.

71. Id. at 25.

72. Transcript of Oral Argument at 11, Branzburg v. Hayes, 408 U.S. 665 (1972) (No. 70-85).

73. Id. at 18.

74. Id.

75. Id.

76. Id. at 36.

77. Id. at 44.

78. Id. at 58.

79. Zingman Interview, supra note 61.

80. Transcript of Oral Argument at 7, In re Pappas, 408 U.S. 665 (1972) (No. 70-85).

81. Id. at 38.

82. Id.

83. U.S. v. Caldwell, 404 U.S. 815 (1971).

84. Brief of the N.Y. Times Co.; Nat’l Broad. Co.; Columbia Broad. Sys., Inc.; Am. Broad. Cos.; Chi. Sun Times; Chi. Daily News; Associated Press Managing Ed. Ass’n; Associated Press Broads.’ Ass’n; & Ass’n of Am. Publishers Inc. as Amici Curiae at 7, 408 U.S. 665 (1972) (No. 70-57).

85. Conference notes for U.S. v. Caldwell, Papers of Justice William J. Brennan Jr., Library of Congress Manuscript Division, Washington, D.C.

86. Powell memorandum at 4 (Feb. 23, 1972), Papers of Justice Lewis Powell, Wash. & Lee Law Sch., Lexington, Va.

87. Id.

88. Branzburg v. Hayes, 408 U.S. 665, 709 (1972) (Powell, J., concurring).

89. Id.

90. Id.

91. Powell’s note is discussed in Adam Liptak, A Justice’s Scribbles on Journalists’ Rights, N.Y. Times, Oct. 7, 2007.

92. Telephone interview with The Honorable J. Harvie Wilkinson (June 22, 2021).

93. Id.

94. Telephone interview with Benjamin Heineman Jr. (June 22, 2021).

95. Draft Opinion (June 27, 1972), Papers of Justice William Rehnquist, Hoover Inst. Archives, Palo Alto, CA. Text appears in published opinion at 408 U.S. 702.

96. Draft Opinion of Burger, C.J., Papers of Justice William Rehnquist, Hoover Inst. Archives.

97. Branzburg v. Hayes, 408 U.S. 665, 682–83 (1972) (“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.”).

98. Id. at 698–99 (“From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished.”); id. at 706 (“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.”).

99. Id. at 707–08 (“grand jury investigations, if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment”).

100. Id. at 725 (Stewart, J., dissenting).

101. Id. at 709 (Powell, J., concurring).

102. Id.

103. Id. at 708.

104. Id. at 725 (Stewart, J., dissenting).

105. Id. at 711 (Douglas, J. dissenting).

106. James C. Goodale, Branzburg v. Hayes and the Developing Qualified Privilege for Newsmen, 26 Hastings L.J. 709 (1975).

107. See D.C. Circuit: Reporter’s Privilege Compendium, Reporters Comm. for Freedom of the Press, https://www.rcfp.org/privilege-compendium/d-c-cir/#i-introduction-history-background.

108. McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003).

109. Id. at 532.

110. See Adam Liptak, Reporter Jailed After Refusing to Name Source, N.Y. Times, July 7, 2005.

111. See Judge Stays Fines in Reporter’s Case, N.Y. Times, Mar. 12, 2008.

112. See Matt Apuzzo, Times Reporter Will Not Be Called to Testify in Leak Case, N.Y. Times, Jan. 12, 2015.

113. Extradition Sought in Newsman Dispute, N.Y. Times, Oct. 27, 1972.

114. Interview with Earl Caldwell, Frontline, PBS (posted Feb. 13, 2007).

115. COINTELPRO is the acronym for Counter Intelligence Program, a surveillance and destabilization project run by the FBI to disrupt and undermine antiwar protesters, anti-draft groups, the Black Panthers, civil rights leaders, and a range of other protesters and dissident organizations.

116. Airtel, FBI Director J. Edgar Hoover to Special Agent in Charge, San Francisco, May 14, 1969.

117. Airtel, FBI Director J. Edgar Hoover to Special Agent in Charge, San Francisco, May 27, 1969.

118. Id.

119. Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, Intelligence Activities and the Rights of Americans, S. Doc. No. 94-755 (Apr. 26, 1976).

120. Branzburg v. Hayes, 408 U.S. 665, 708–09 (1972) (Powell, J., concurring).

121. Id. at 707 (majority op.).

122. Id.

123. Earl Caldwell, Ask Me. I Was the Test Case, Commc’n Law., Summer 1997, at 1, 19–20.

124. Id.