Branzburg Vs. Hayes

The case of Branzburg vs. Hayes all began in 1969, when a Louisville Kentucky reporter by the name of Branzburg wrote a story, in the Courier-Journal, which described how two local residences made hashish marijuana. The article went into great detail and revealed many facts, including the amount of money the two made on selling the hashish to the public. The article also featured pictures of the two individual's hands working with a plant like substance and was identified for readers as hashish in the caption under the picture. Branzburg was in agreement with the drug dealers and promised them he would not reveal their real names or identities in the article.

After the article was published, Branzburg was immediately subpoenaed by the Jefferson County Court system. The court demeaned that he name the two individuals featured in the article, but he stood strong and refused to give up their names like he had promised them. Branzburg argued that the Kentucky Privilege Statute passed in 1962 protected him from having to give up the names.(1) He also argued that the First Amendment and Kentucky constitution, (Sections 1,2, and 8) protected his right not to disclose the information of the two individual's identities.(2) However, the Kentucky courts fought back arguing that the Kentucky Privilege Statute didn't allow a reporter to refuse to testify about things they saw, or not disclose the names of people they were in contact with. Branzburg then took his case to the Kentucky appeals court, which ruled against him once again. He continued to fight the good fight for what he thought was true and right; the case finally ended up at the Supreme Court.

Branzburg's decision not to disclose the information the court sought was due to the belief that his integrity and effectiveness as a reporter would be tarnished if he named names. Branzburg placed a high value on the confidentiality between him and the subjects he was investigating and reporting on. He felt that if he had released the two names in the article he published that subjects in the future would be unwilling to disclose information that was vital in writing the kind of stories he so desired.

If people from the local area saw that Branzburg couldn't keep his subjects identities anonymous as they had requested, than others in the future would be very reluctant to have anything to do with Branzburg. Branzburg also felt that if he gave up the names that he would be committing career suicide and damage the reputations of other honest hard working reporters around Kentucky and the country. "Ð'... 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 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." (3)

When the case finally made it to the Supreme Court, five justices voted in favor of Hayes, who was the district attorney. Four of the justices agreed that Branzburg had no right to confidentiality and should have given the court the identities they had requested. One of the Supreme Court justices handed down a dissenting opinion. The opinion handed down stated that Branzburg's rights should have been protected unless the court could prove three things: First they had to prove probable cause that Branzburg had information to a crime that the Grand Jury was investigating. Secondly the court had to prove that there was no other alternative to obtaining the desired information on the two individuals identities except from Branzburg himself. Finally the court had to prove that there was strong desire for the government to obtain this information. The court had to provide strong enough evidence that proved the government had a powerful enough need to obtain the information. The need for the information had to be powerful enough to override the First Amendment of the Constitution.

One thing the Supreme Court justices came to agreement on was; if reporters were prohibited from entering agreements with their subjects, then they will not get the desired information crucial to writing a well-rounded story for the public. The justices felt that if this were the case, then the public would not be getting the full sided story. However they also felt that if a reporter was brought before a grand jury, then the reporter should be able to disclose the information sought by the court in secrecy. Another major concern of the court was that reporters in the future would become immune to Grand Jury subpoenas even though the average American citizens would not. "The sole issue before us is the obligation of the reporters to respond to Grand Jury subpoenas as other citizens do and to answer question relevant to an investigation in 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. 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, there informants will refuse or be reluctant to furnish newsworthy information in the future. This asserted burden in news gathering is said to make compelled testimony from newsmen constitutionally suspect and require privileged position for them".(4) In the end, the Supreme Court ruled that reporters should be protected from disclosing certain information in trial, but that The Supreme Court has the power to override this right if the situation meets the three requirements stated in the above paragraph. The outcome of the ruling protected Branzburg's career and reputation along with the Government's as well.

Another case that was relevant to the issue brought about by the Branzburg vs. Hayes trial was the case of In re Pappas. Pappas was a reporter/photographer who worked for a New Bedford, MA television station. Pappas covered a Black Panther news conference, during one of his assignments for the television station. The Black Panther party was previously found by the courts to be seditious, and that anyone who attended a meeting of this group was in direction violation of the law. Pappas was granted permission to attend the meeting, as long as he agreed not disclose anything he saw or heard. After the meeting Pappas didn't write a story