| FACTS | Petitioner Branzburg, a reporter at the Courier-Letter in Louisville, Kentucky, wrote two articles for his paper concerning drug use in Kentucky. The first article, written in 1969, focused on drug use in Jefferson County. Among other things, it contained a photograph of hashish held in the hands of an unidentified person. In 1971, Branzburg wrote an article on drug use in Frankfort, Kentucky. As sources for this article, he spoke with several marijuana users. As a condition for cooperating with Branzburg, his sources requested that they not be identified. When published, both of these articles came to the attention of law enforcement personnel. In each instance, Branzburg was called to testify before a grand jury concerning his knowledge of the drug activities reported in his articles. The prosecutors in charge of these grand jury proceedings ordered him to name his sources. Branzburg refused on the grounds that the Freedom of the Press Clause of the First Amendment protects the confidentiality of a journalist's sources. These cases were heard by Kentucky judges, who disagreed and held that Branzburg had to name his sources. Branzburg appealed these decisions. The 1969 article gave rise to the case, Branzburg v. Hayes. The 1971 article gave rise to the case Branzburg v. Meigs. After moving through the Kentucky court system, the U.S. Supreme Court agreed to hear these two cases, which it consolidated under the name Branzburg v. Hayes. |
| REASONING | Majority Opinion
Writing for a majority of the Court, Justice Byron White, held that the First Amendment does not provide members of the press with the right to withhold from a grand jury the names of confidential sources. Although it acknowledged that such a requirement could have a chilling effect on sources, the Court held that this was the result of private, not governmental, action—thus, the First Amendment was not implicated. Moreover, the Court stated that there was a lack of statistical evidence proving that such a deterrent effect existed. Additionally, the Court was unpersuaded by the argument that a substantial number of people would refrain from talking to the press as a result of this ruling, noting that it only applies to criminal grand jury investigations. If a story did not involve criminal activity, promises of confidentiality were perfectly acceptable. If the story did involve such activity, the journalist, like all citizens, is obliged to report it. Finally, the Court said that the First Amendment had never been interpreted as exempting the press from obeying laws that applied to everyone equally, i.e., prohibitions against stealing and the requirement to pay taxes. |
| CONCURRENCES | Justice Lewis F. Powell wrote a concurring opinion in which he stated that, if a prosecutor were conducting a grand jury investigation in bad faith (using it to obtain irrelevant information and/or to shame others), journalists might have a right to refuse to reveal their sources. He noted that courts usually have a procedure for determining the relevancy of a line of questioning in a grand jury proceeding and preventing it if necessary via motions to quash. |
| DISSENTS | Justice William O. Douglas stated that the First Amendment protects the right of the citizenry to receive information. It prevents any obstacles to that end, i.e., forcing reporters to reveal their confidential sources, under any circumstances. Justice Potter Stewart, together with Justices William Brennan and Thurgood Marshall, held that under certain rare circumstances, journalists may be required to reveal their sources to a grand jury. These include if 1) There is probable cause the journalist has information relevant to the investigation; 2) There is no other way to obtain the information; and 3) The State has a "compelling and overriding" interest in obtaining the information. The Justices did not believe that these factors were present in this case. |