10

subordinating governmental interest" or a showing of "paramount" need." or a demonstration of "controlling justification" 12 or "subordinating interest.” The insistence of District Judge Zirpoli and the Ninth Circuit that the government, at the very least, make a showing of need for the issuance of compulsory process is fully consonant with, and supported by, prior judicial opinions on the scope of newsmen's protection, even those opinions which ultimately refused to accord protection in the particular case. Thus, for example, Mr. Justice Stewart (then Circuit Judge) in Garland v. Torre," implicitly recognized the limits upon the State's ability to require compulsory process on newsmen, and recognized, we believe, that a showing of necessity is required before compulsory process can be supported. In Garland, the court recognized the First Amendment issues at stake and allowed compulsory process only after closely examining the facts of the case and noting that the case did not involve "wholesale disclosure of a newspaper's confidential source of news," concerned the "heart of the plaintiff's claim" and that the plaintiff had demonstrated the unavailability of the information sought by any means other than compulsory process. The tenor of the opinion makes clear that under different circumstances, and without a compelling showing of need, the court might well have found compulsory process to be improper.15

The failure of the government here to demonstrate in any way that the information sought from Caldwell was essential to the government's interests, or was even particularly relevant or material to the grand jury's purpose, is a defect which, under Garland, is sufficient to defeat its claim.18

We urge, moreover, that under recent developments of the law, and by analysis of similar protections accorded other analogous confidential relationships, it would indeed be impossible for the government ever to demonstrate the type of "compelling need" which would justify the explicit violation of the First Amendment which compulsory process upon journalists would entail. Simply stated, the amici do not believe that the need for compulsory process outweighs the explicit commandment of the First Amendment to protect and nurture a free and untrammeled press.

The basis for the government's claim lies in the oft-quoted admonition that the law is entitled to every man's evidence, and that reporters have no special dispensation to avoid the requirement of testifying in judicial proceedings." In gen

10 Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 547 (1963). 11 Thomas v. Collins, 323 U.S. 516, 530 (1945).

12 Bates v. Little Rock, 361 U.S. 516, 527 (1960).

13 NAACP v. Alabama, 357 U.S. 449, 463 (1958); cf. New York Times Co. v. United States (No. 1873) and United States v. The Washington Post Company (No. 1885), decided June 30, 1971, 39 U.S.L.W. 4879, where the per curiam opinion of this Court adverted to the "heavy burden of showing justification" in the case of a prior restraint on the exercise of free speech.

14 259 F. 2d 545 (2d Cir. 1958), cert. denied 358 U.S. 910 (1958).

15 Most later cases on the point rely upon Garland, either allowing or refusing a journalist's claim to protection essentially upon a balancing process. The opinions of Judge Zirpoli and the Ninth Circuit are in the tenor of Garland, as are other lower court opinions limiting the right of the government to compulsory process of newsmen. See People v. Dohrm, Crim. No. 69-3808, Cook County Circuit Court, Chicago, Ill.; Wisconsin v. Knone. Supreme Court of Wisconsin, State No. 146; Alioto v. Cowles Communications, Inc., Civil Action 5210, N.D. California.

Although the Supreme Court of Pennsylvania in dictum in In re Taylor, 412 Pa. 32. 193 A. 2d 181 (1963) did not recognize the existence of a First Amendment right to protection, nevertheless, the Court broadly construed the Pennsylvania newsman's exemption statute as granting protection for the materials there involved. The Court broadly construed the statute to confer a wide scope of protection precisely because of First Amendment considerations.

We are cognizant that other jurisdictions have refused to recognize the existence of a First Amendment right to protection and have allowed compulsory process in the absence of any showing of need. See, e.g., In re Goodfader's Appeal, 45 Hawaii 317. 367 P. 2d 472 (1961). State v. Buchanan, 250 Oregon 244, 436 P. 2d 729 (1968), cert. denied 392 US 905. For reasons described in the instant brief, we believe these cases to have been erroneously decided, and submit that they should not be followed by this Court.

16 The government asserts (Br. pp. 34-38) that the traditional secrecy and purpose of grand jury proceedings make it improper to disclose the specific purpose of the investiga tion, the topics to be covered, or (except in the most general way) the relevance or materiality of the material sought in the investigation. But this argument only demonstrates the impropriety of using rand jury subpoenas to force newsmen to disclose the confidential sources of their confidential information. That the government cannot meet the standards of Garland with respect to grand jury subpoenas is certainly not the fault of journalists.

17 Blair v. United States, 250 U.S. 273. 281 (1919):

It is clearly recognized that the giving of testimony and the attendance unon court or grand jury in order to testify are public duties which every person within the jurisdiction of the government is bound to perform upon being properly summoned.

eral, of course, the proposition is correct. But, as with most generalities, it cannot be taken literally. Indeed, the very case (Blair v. United States) which cemented the proposition into law made clear that there were significant exceptions to this rule which have been crafted out of recognition that the transcendental requirements of justice make it necessary to protect certain relationships from compulsory process.

18

19

The clearest examples of such exceptions, of course, are those of the so-called "evidentiary privileges." Thus, a client has a privilege to keep from disclosure confidences given to his attorney, a patient has a privilege to shield from disclosure confidences given to his physician,20 at common law a spouse could keep from compulsory process disclosures to a spouse," similar rules at common law and/or by statute protect disclosures between priest and penitent," between a client and his accountant, and between a "registered psychologist" and his client." And, of course, the courts have long recognized the necessity of an "informer" privilege whereby the government need not ordinarily reveal the source of an informant's testimony, even in a criminal prosecution."

In all of the above instances, courts have recognized the existence of values which transcended the otherwise applicable requirement that each citizen give testimony. The administration of justice, not to mention the protection of the rights of individuals, are better served by protecting the confidentiality of the attorney-client privilege than by the short term and fleeting advantage which the disclosure of such confidences may have in an individual case. The well-being of society as a whole is better served by the allowance of confidences between a priest and a penitent than by forcing disclosure. The importance of maintaining an informer's anonymity to the long term administration of justice, and to the protection of the "flow of information" to the government (Roviaro, supra, 353 U.S. at 62), are recognized as generally (though not always) superseding the requirement of compulsory process, even in the defense of a criminal prosecution, and in the face of the Sixth Amendment's assurance to a criminal defendant of compulsory process."

But the so-called evidentiary "privileges" do not by any means exhaust the areas of exception to compulsory process. The courts have often surrendered accessibility to otherwise relevant evidence when other considerations require their unavailability. The Federal Rules of Criminal Procedure, and the decisions thereunder, require suppression of confessions obtained without the necessary judicial prerequisites." The courts have long excluded otherwise relevant and material evidence obtained through illegal search and seizure." The government has unquestioned power to withhold relevant and material evidence if it reasonably believes that disclosure would expose matters "which, in the interest of national security, should not be divulged." 28 And, of course, the most massive exclusionary rule ever devised is embodied in the Fifth Amendment which deprives not only courts but every government agency of testimony from the most potentially fruitful source of information because the drafters of the Constitution deemed the right to remain silent more important than the ability of the government to administer justice through self-incrimination.20

More significantly, however, the law does not require that a particular witness possessing these protections make a threshold showing of "necessity" in order to

18 Blair, supra at 281: The duty

is subject to mitigation in exceptional circumstances; there is a constitutional exception from being compelled in any criminal case to be a witness against oneself : some confidential matters are shielded from consideration of policy, and perhaps in other cases for special reasons a witness may be excused from telling all that he knows.

19 Alexander v. United States, 138 U.S. 353 (1891).

20Connecticut Mutual Life Insurance Co. v. Union Trust Co., 112 U.S. 250 (1884).

21 Wolfle v. United States, 291 U.S. 7 (1934).

22 See 8 Wigmore, Evidence ¶¶ 2394-95.

23 See, generally, 8 Wigmore. Evidence, ¶ 2286.

24 See Roviaro v. United States, 353 U.S. 53 (1957).

25 We wish to emphasize that we do not claim a "privilege" for newsmen, although the newsmen's protection commanded by the First Amendment is often loosely termed a "privilege." The right which we seek to vindicate is not the personal right of a newspaper man to any "privilege." It is the right of the public to receive information which is here involved. 20 See McNabb v. United States, 318 U.S. 332 (1943): Mallory v. United States, 354 U.S. 449 (1957); see, also, Miranda v. Arizona, 384 U.S. 436 (1966).

27 See Weeks v. United States, 232 U.S. 383 (1914): Mann v. Ohio, 367 T'.S. 643 (1961); Silver Thorpe Lumber Co. v. United States, 251 T.S. 385 (1920).

25 T'nited States v. Reynolds, 345 T.S. 1. 10 (1953).

29 See, e.g., Counselman v. Hitchcock, 142 U.S. 547 (1892).

invoke his right to protection. Nor does the right to protection depend upon a balancing of the nature of the confidence sought to be protected against the effect which exclusion would have on the long range public interest. Thus, a client need not demonstrate that release of a particular piece of confidential information which passed between himself and his attorney would "irreparably injure him" if disclosed, nor in a criminal prosecution would the government be allowed to plead that the attorney-client confidence should be breached because in the particular case the interests of "national security" or "administration of justice" or whatever so required. The government could not so plead with respect to any of the so-called evidentiary "privileges", or any of the other exclusionary rules deriving from the Fourth or Fifth Amendments. On the contrary, once the witness claims his right to protection (or in the case of the exclusionary rules. the applicability of the exclusionary rule becomes apparent), the matter is foreclosed. The courts do not countenance further investigation into the nature of the confidences for the simple reason that to do so would, in practical effect. vitiate the protection intended to be conferred." The courts do not engage in ad hoc "balancing" considerations simply because the law has already balanced the accounts and has found the scales to be weighted on the side of protection. We believe that the protection of journalists from compulsory disclosure of confidential information is a right of such enduring importance to the preservation of our democratic system that it falls within the constellation of interests protected by the evidentiary privileges and exclusionary rules cited above. IL view of the undoubted (indeed, conceded) importance of confidential relation ships to the gathering and dissemination of news and information, and in view of the fact that compulsory disclosure of such confidence directly trenches uper the First Amendment, we cannot believe that any of the privileges or the exclu sionary rules referred to above stand on a higher footing than protection of a newsman in the fulfillment of his constitutional role as ombudsman of the democratic system. That First Amendment freedoms are delicate and precious rights which need "breathing space" to survive, "strong medicine" for protection, and are to be protected even to the point where newspapers are accorded protes tions not accorded to individual citizens," are propositions now well established in constitutional law. If any doubt remained, it was dissipated by this Court's opinion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and its progeny." expanding the protection accorded to the press. The Court recognized in New York Times (376 U.S. at pp. 269-70):

32

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484. . . . The First Amendment, said Judge Learned Hand "presupposes that right conclu sions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly: but we have staked upon it our all." United States v. Associated Press, 52 F. Supp. 362, 372 (D.C.S.D.N.Y. 1943).

The protection accorded in New York Times has been given expensive interpreta tion, and now includes newspaper coverage of private individuals as well as

30 See Alexander v. United States, supra, note 19.

31 As this Court noted in Hoffman v. United States, 341 U.S. 479, 486 (1951), “if the i witness, upon interposing his claim [to protection], were required to prove the hazard the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee It might be thought that an exception to this rule exists by virtue of the Supreme Cour holding that the government was not entitled to maintain its "informer" privilege in cumstances where the overwhelming interest of justice required disclosure. See Roria supra. However, it should be noted that even here the government would not be forced tˆ disclose in all circumstances. It could avoid disclosure by dropping the litigation. We s gest that similar considerations could apply to newspapers. so that if newspapers an journalists voluntarily initiate court proceedings, the courts could, if the circumstances warranted, require that the journalists be required to choose between maintaining the suit or voluntarily disclosing their sources.

33 I.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963).

23 Sheridan v. Garrison, 415 F. 2d 699, 706 (5th Cir., 1969); Dombowski v. Pfister, 35% U.S. 479 (1965); N.A.A.Č.P. v. Alabama, 357 U.S. 449 (1958); Freedman v. Maryland, 30 U.S. 51 (1965).

34 New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

35 See Time, Inc. v. Hill. 385 U.S. 374 (1967); Curtis Publishing Co. v. Butts, 388 US 130 (1967); Rosenbloom v. Metromedia, Inc., 39 U.S. L.W., 4694 (June 7, 1971).

36

blic figures, and electronic journalism as well as print journalism. These decions are, we believe, the culmination of a maturing and sensitive recognition by he Court that, in an increasingly complex and interrelated world, where the verage citizen necessarily can know by personal knowledge only the smallest action of the events which affect his life, the role of the free press is even more ssential to the maintenance of American democracy than in the past. Unless he First Amendment guarantee of press freedom is protected to the fullest xtent, the role which it has played will inevitably be diminished. If this happens, will be the public, and not merely the press, which is the loser.

III

HE EFFECTUATION OF THE FIRST AMENDMENT'S MANDATE REQUIRES ABSOLUTE, NOT LIMITED OR QUALIFIED PROTECTION, AND MUST INCLUDE THE RIGHT TO REFUSE TO APPEAR BEFORE ANY STATE INVESTIGATOR OR JUDICIAL BODY, INCLUDING THE GRAND JURY

The amici believe that for newspapers to obtain the full protection to which hey are entitled by the First Amendment, journalists must be accorded an bsolute and unqualified right to protection from compulsory process, including he right to refuse to appear or testify before any governmental investigative or udicial body, including the grand jury.

We recognize the reluctance with which courts generally view the establishnent of absolute and unqualified protections, particularly where these protections perate to deprive the courts of what otherwise might be relevant or material vidence. We also recognize that it is impossible, as a practical matter, to envision ll possible future situations in which the protection might be invoked, so that he judiciary generally is reluctant to establish absolute requirements which may ater have to be set aside when the unforseen and unusual instance occurs. Neverheless, we believe that nothing less than the establishment of unqualified protecion would, as a practical matter, comport with the First Amendment's requirenents. Our reasons for this position are:

1. As the government recognizes, the focus in this case is not the effect which Henial of protection has upon the individual newspaper or journalist. Rather, it s the "degree of chill being generated on the conduct of others" (Government Brief, p. 27). The danger we face is not that reporters will cease attempting to eport news, for this will not happen. What will happen (and what indeed has already happened in the instances discussed by the reporter-affiants below) 37 is hat groups or individuals will refuse to discuss their activities with reporters because they fear that journalists may be forced by compulsory process to divulge heir identity and their confidences. We thus deal as much with appearances and reactions, as with the activity of reporters.

The District Court recognized the legitimacy of these fears, and the importance of appearances, by a protective order limiting disclosures only to "non-confidential" matters. The Ninth Circuit was even more sensitive to the fact of appearances and went beyond the District Court's protection, correctly (in our judgment) deciding that even the mere requirement of witness Caldwell's physical presence in the grand jury room is sufficient to vitiate the public's confidence.s

We believe the Ninth Circuit's perceptive appreciation of the dangers to free expression of compulsory appearance before the grand jury is fully warranted and accords with the amici's practical experience in reportage. Indeed, we believe

See note 35, supra.

See affdavits of journalists Kifner, Ripley, Noble, Lowell and Yee.

The Ninth Circuit astutely observed that the witness Caldwell had established a relanship of trust and confidence which rested "on continuing reassurances" of confidentiality (Appendix 123):

This reassurance disappears when the reporter is called to testify behind closed doors. The secrecy that surrounds Grand Jury testimony necessarily introduces uncertainty in the minds of those who fear a betrayal of their confidences. These uncertainties are compounded by the subtle nature of the journalist-informer relation. The demarcation between what is confidential and what is for publication is not sharply drawn and often depends upon the particular context or timing of the use of the information. Militant groups might very understandably fear that, under the pressure of examination before a Grand Jury, the witness may fail to protect their confidences with quite the same sure judgment he invokes in the normal course of his professional work.

that the Ninth District's decision, bold as it is, should be even further expanded and that under no circumstances (even in the face of an assertion or demonstration of "compelling need") should a newsman be required to appear before any investigative body.

The reason is simply that no one, even those most sophisticated in the law. can predict with any certainty what the courts will deem a "compelling need," or what would be considered "confidential" or "non-confidential" at a period in time much later than the events themselves. The uncertainty introduced by anything other than an absolute and unconditional protection may (and indeed already has) constricted the free flow of information to reporters which is essential to their function. This uncertainty with respect to rights directly conferred by the First Amendment brings the newsman's protection within the scope of the constitutional doctrines of "vagueness" and "overbreadth":

Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. Protection, the scope or existence of which is uncertain and made to depend upon what courts in the future may decide, will not easily be understood or appreciated by the average citizen and will inevitably have the "chilling effect" which this Court has already proscribed.40

In Dombrowski v. Pfister, 380 U.S. 479, 487 (1965) this Court pointed out the necessity, in the First Amendment area, of avoiding "making vindication of freedom of expression await the outcome of protracted litigation." We do not believe that the statute at issue in Dombrowski, or in other cases where the Court has struck down vague statutory language," would have been saved from constitutional infirmity merely by the insertion that the statute would become operative only upon a showing of "compelling need" or "supervening necessity.” Such concepts are as illusive of definition as they are incapable of the precision which is required when free speech considerations are involved. What is required here. if the First Amendment protection is to have any meaning, is the promulgation of an absolute rule, simple of discernment, precise as to scope, and easy of application.

2. It might be urged that affording subpoenaed journalists a protective order. plus requiring their appearance only upon a showing of compelling need, is sufficient protection because the journalists will be required to divulge little, if anything, which they deem confidential. But requiring the appearance of the journalists at the grand jury proceeding only to have them invoke their protection is commanding an essentially useless act (from the government's point of view). while at the same time requiring an act which per se has debilitating effects upon the public's confidence in the scope of protection. And, of course, if the gorernment at any point challenges whether or not the invocation of confidentiality in the grand jury room is warranted (or, if a protective order has been issued, if the government challenges whether the order reaches the particular matter involved further judicial proceedings will be required. At this point the court either has the option to accept at face value the claim of confidentiality (which, as noted. is the course often taken in the case of the evidentiary privilege rules) or to subject the witness to further hearing under circumstances whereby the very confidentiality sought to be protected is vitiated. In these circumstances the protection is hardly any protection at all."2

39 N.A.A.C.P. v. Button, 371 U.S. 415. 433 (1963). See. e.g., Dombrowski v. Pfister, 380 U.S. 479 (1965); U.S. v. Robel, 389 U.S. 258 (1967); Coates v. City of Cincinnati, No 117, October Term. 1970.

40 The government urges that the reporter-affiants below do not contend that their mere appearance before the grand jury will have harmful effects. The government reads the reporters' affidavits as asserting only a demand for protection for material and sources ob tained in confidence. The amici do no so read the affidavits. The gist of these affidavits in toto demonstrates a desire to protect any loss of confidence in reporters by citizens and they demonstrate an awareness that even the appearance of journalists' submission to compulsory process would have that effect. See, particularly, affidavits of journalists Kifner. Ripley. Noble, Lowell and Yee.

41 See. e.g., Thornhill v. Alabama, 310 U.S. 88 (1940); N.A.A.C.P. v. Bumon, 371 US 415 (1963) Baggett v. Bullitt, 377 U.S. 360 (1964).

42 The government in its Brief is concerned that the secrecy of grand jury proceedings he protected. Indeed, the necessity of such protection is the basis upon which the government urges that requiring a showing of compelling need is improper since it might vitiate such secrecy. (Br. pp. 42-44.) The government's position, we believe, is precisely the reas why reliance upon special showings of need (or limitations on confidentiality only matters which are "essential" to the case) are more dangerous to the long term interests of justice than would be the adoption of an absolute rule, easy of discernment, precise 18 to scope, and easy of application.