Branzburg revisited?

Landmark ruling limiting reporter’s privilege turns 30, but release of jailed writer sparks call for review

From the Winter 2002 issue of The News Media & The Law, page 4.

By Monica Dias

The jailing of a Houston book author for 168 days drew the attention of the national media and free-speech groups because of the oddity of a writer spending more than five months in jail when she was not even accused of a crime.

But Vanessa Leggett’s refusal to disclose confidential sources to a federal grand jury — a fight that is poised to continue at the trial court level despite her release on Jan. 4 from the Federal Detention Center in Houston — is drawing attention from media attorneys and press groups for another reason.

Could Leggett’s case compel the U.S. Supreme Court to reconsider a muddled 30-year-old ruling on whether a reporter has a First Amendment right to keep sources confidential, especially in criminal cases?

The question is a sensitive one among journalists. The Supreme Court held in its 1972 decision in Branzburg v. Hayes that reporters had no privilege to refuse to appear and testify before state or federal grand juries. But a concurring opinion in the case, coupled with dissents from four justices, has been construed to give journalists at least a qualified privilege to withhold information in other circumstances. The fractured opinion left lower courts to figure out when and how the reporter’s privilege should apply, and those courts have not decided the issues consistently.

The Supreme Court never again accepted a case that required it to clarify when a reporter has a privilege to withhold information. Press groups recognize the imperfection of Branzburg, but they worry that this court’s conservative justices would erode reporters’ rights if those justices took another look at the issue.

“I’m incredibly conflicted,” said Christine Tatum, chairwoman of the Society of Professional Journalists’ Legal Defense Fund and technology reporter for the Chicago Tribune. “We know Branzburg, and we know the limitations that are imposed by it. It’s something familiar to us. It’s something we may not like, but we’ve all pretty much figured out how to work around it. We don’t know what we’d be getting with a decision that takes someone like Vanessa Leggett into consideration.”

Nevertheless, Mike DeGeurin, Leggett’s attorney, asked the Supreme Court to hear her case and, in the process, clarify the confusion that is Branzburg‘s legacy.

Leggett, who was sent to jail on July 20 for defying a court order to give a grand jury her confidential book research into a Houston murder, was released after the term of the grand jury that subpoenaed her expired.

Leggett apparently will avoid a subpoena from another grand jury seeking her research into the 1997 shooting death of Houston socialite Doris Angleton. On Jan. 24, a new grand jury indicted Robert Angleton, charging him with conspiracy, murder for hire and a firearm violation in the death of his wife, according to the U.S. Attorney’s Office in Houston.

Leggett could be subpoenaed to testify at trial, DeGeurin said. Leggett has said she will continue to defy future subpoenas seeking her confidential sources. Thus, even if the Supreme Court decides not to hear her current appeal, it is likely that Leggett would ask the court again to review her case if she is found in contempt of court a second time.

DeGeurin wants the Supreme Court to review Branzburg and specify the rights of journalists in Leggett’s situation.

“The issue has become one of national importance and the time is ripe for this Court to provide clarification,” DeGeurin wrote in his December petition to the Supreme Court to hear the issues that landed Leggett in jail.

The Branzburg ruling

Three reporters who refused to name their sources to grand juries led to the Supreme Court’s landmark decision.

Paul Branzburg, a reporter for The Courier-Journal in Louisville, Ky., wrote a story in 1969 describing how he watched two people make hashish from marijuana. A photograph of a pair of hands working above a table holding hashish accompanied the story, which included this comment from one of the sources: “I don’t know why I’m letting you do this story. To make the narcs mad, I guess. That’s the main reason.”

Branzburg promised confidentiality to his sources and changed their names in the story. He refused to identify the sources to a grand jury that subpoenaed him.

More than two years after the first story was published, Branzburg spent two weeks interviewing drug users — and watching some of them smoke marijuana — for a story about drug activity in Frankfort, the state capital. Again, Branzburg refused to identify his sources to a grand jury.

The second case that led to the Supreme Court’s decision involved Paul Pappas, a television reporter-photographer who in 1970 spent three hours inside Black Panthers headquarters in New Bedford, R.I., on condition that he would not disclose anything he saw or heard except for an anticipated police raid. The raid never happened, and Pappas never broadcast a story. A grand jury investigating civil disorder in New Bedford subpoenaed him, but he refused to testify about anything he had seen inside the headquarters.

The final case involved Earl Caldwell, a reporter for The New York Times who was assigned to cover the Black Panther Party and other black militant groups in San Francisco. He refused to testify when a grand jury subpoenaed him in 1970.

The Supreme Court ruled against the reporters in a 5-4 decision. Justice Byron White’s majority opinion held that reporters, especially when they witness a crime, have no privilege that would allow them to avoid a grand jury subpoena. White recognized that reporters are entitled to some First Amendment protection since, without it, “freedom of the press could be eviscerated.” Thus, grand jury investigations had to be conducted in good faith, and “official harassment of the press” would not be justified, White wrote.

Justice Lewis Powell, who provided the crucial fifth vote, left some maneuvering room for reporters in his concurring opinion. A reporter’s claim of privilege should be judged by balancing freedom of the press with the obligation of all citizens to testify about criminal conduct, he wrote.

Three dissenting justices argued that a three-part test should apply. When a reporter is subpoenaed to divulge confidential sources to a grand jury, government must first show that the information is clearly relevant to a specific violation of the law; the information cannot be obtained by alternative means; and there is a compelling and overriding interest in the information.

Justice William Douglas, in a separate dissent, favored an absolute privilege for reporters that would protect them from appearing or testifying before a grand jury, unless the reporter was implicated in a crime. With an absolute privilege, no balancing of a reporter’s interests with the interests of law enforcement would occur. The government could not pierce the privilege even if it showed that the information it sought was relevant, met a compelling need and was unobtainable from other sources.

Lower courts’ interpretations

Lower courts were left with the job of sorting out the confusion of a ruling that has been referred to, somewhat jokingly, as a 4½-to-4½ decision.

“The ruling certainly left the terrain in a manner where much more legal work needed to be done,” said First Amendment lawyer Floyd Abrams. “It was one thing for the court to hold that in a criminal prosecution a grand jury at least presumptively has the power to cause a journalist to testify, but that didn’t answer questions about what happened at criminal trials, nor on pretrial or trial in civil cases, nor even if it governed all grand jury demands.”

Most federal circuit courts of appeal have acknowledged the existence of some form of qualified privilege for reporters. Most have adopted the approach of the dissenting justices in Branzburg by applying a three-part balancing test. Those courts assess whether the subpoenaed information is clearly relevant to the case; whether the information goes “to the heart of the case,” meaning the information is necessary or critical to the case; and whether the information can be obtained elsewhere.

But the courts differ on when and how they apply the test. Some apply it in civil cases but not criminal. Some courts allow a privilege to protect confidential information but do not protect non-confidential information.

For example, the Fifth Circuit — which encompasses Louisiana, Texas and Mississippi and which declined to extend a reporter’s privilege to Leggett — has upheld a reporter’s privilege to protect confidential sources in a civil case when the reporter was not a party in the case. (In re Selcraig). But the Fifth Circuit has rejected a qualified privilege for non-confidential information in criminal cases. (United States v. Smith)

A conflict exists among some circuits as to whether a reporter has a qualified privilege to withhold information from a grand jury, which was the issue in Branzburg.

The Sixth Circuit — which hears appeals in Michigan, Ohio, Kentucky and Tennessee — interprets Branzburg strictly, rejecting an interpretation that would add Powell’s concurrence to the dissenting opinions to result in a balancing test. No such balancing test is to be applied when deciding whether a reporter must respond to a grand jury subpoena, the Sixth Circuit has ruled. (Storer Communications v. Giovan)

However, an evenly divided number of judges on the Third Circuit — which includes Pennsylvania, New Jersey and Delaware — affirmed a lower court ruling that gives reporters some leeway even with grand juries, allowing them to argue a balancing test to avoid grand jury subpoenas. (In re Williams)

Time for review?

Media attorneys disagree on the wisdom of asking the Supreme Court to clarify Branzburg.

Edgar A. Zingman, the Louisville, Ky., attorney who represented Branzburg, noted the probability that the Court’s conservative viewpoint would not bode well for reporters.

“We had what we thought was a good court, and we had a 5-4 split at that time,” Zingman said. “With this court, I would not be too hopeful. I would think there would be the possibility that they would circumscribe the privilege even more.”

Abrams, the First Amendment lawyer from New York, agrees that it’s probably best for reporters if the Supreme Court decides not to take up the issue of the reporter’s privilege.

“The court that we have now is significantly less sympathetic to the press than the court we had in 1972, and I think the odds are rather strongly against the court making a determination that the First Amendment does provide the sort of protection that most journalists already think they have,” Abrams said.

Leggett has found support among some free-press groups, including the Reporters Committee for Freedom of the Press, that are joining a friend-of-the-court brief in support of her request to the Supreme Court to hear her case.

“Journalists are well-served by knowing what the Supreme Court truly believes about this,” said Charles L. Babcock, whose Houston firm, Jackson Walker LLP, is writing the friend-of-the-court brief.

Jon Fleischaker, a Louisville, Ky., attorney who worked with Zingman on Branzburg’s case, said another Supreme Court ruling probably would not hurt journalists any more than they already are in the Sixth Circuit, where Branzburg is strictly followed.

But he sees a danger in giving the Supreme Court the opportunity to reduce any privileges reporters do have.

“We’ve done a lot of things in the last 30 years where we have established a climate where you don’t just willy-nilly go after reporters,” Fleischaker said. “A point-blank decision that reporters are no different than anybody else could open up the floodgates.” (Leggett v. United States.)