| Branzburg (Reporter) | Hayes (Judge) |
| 1. Does compelling a journalist to reveal confidential sources undermine freedom of the press? |
| Affirmative. Yes. The First Amendment protects the freedom of the press. The press cannot truly be free unless it is at liberty to report on stories of public interest, i.e., the drug crisis. In order to get these stories, reporters sometimes have to promise confidentiality to their sources—persons who are often involved in illegal conduct. If reporters are forced to identify their confidential sources before a grand jury, they will not be able to publish such stories, and the press will not truly be free. | Negative. No. The First Amendment’s freedom of the press does not give the press freedom from all laws and regulations. For instance, members of the press do not have the right to break into a building to get a story, even if the story is one of most pressing public concern. Freedom of the press guarantees that the press will be free from prior restraint and other government censorship. It has nothing to do with the assertion that a journalist may refuse to identify confidential sources before a grand jury when required to do so by law. |
| 2. Is a journalist's promise of confidentiality to sources a contract that should be honored by the government? |
| Affirmative. Yes.
At the heart of the First Amendment is the protection of the free flow of information. Although the government is not directly censoring the press by requiring journalists to reveal their confidential sources, the effect is the same. The public has a right to know about pressing issues such as the drug crisis. If a journalist’s source is engaged in illegal activities and knows that the journalist could be required to identify him/her, the source will be hesitant to talk. This restricts the free flow of information within society, and strikes at the heart of the First Amendment. | Negative. No.
With perhaps a few rare exemptions, i.e., troop movements during times of war, the First Amendment prevents the government from interfering with whatever truthful statements the press decides to publish. When the promise of confidentiality is between a journalist and an individual, this is a private, not governmental, action. As such, the First Amendment is not implicated. |
| 3. Should journalists be immune, at times, from some laws when they are reporting a story that has a significant impact on the public |
| Affirmative. Yes.
Members of the press serve a very important role in a democracy. Reporters make the citizenry aware of matters of public importance, such as the workings of their government. While members of the press are by no means above the law, sometimes the greater good of society requires that a journalist’s ability to report a story trumps the letter of the law. The ability to inform the citizenry of pressing matters, such as the drug crisis, justifies a journalist’s immunity from certain laws, such as being compelled to name sources before a grand jury. | Negative. No.
The First Amendment does not provide journalists with the right to ignore laws that are applicable to the citizenry at large. Perhaps, under certain circumstances, the greater good would demand that journalists be allowed to publish a story without fear that their confidential sources may be revealed. However, this is a decision for the individual state legislatures and/or Congress to enact by appropriate legislation. It is not one that is found within the text of the Freedom of the Press Clause of the First Amendment. |
| 4. When balancing a free press and public safety, should journalists' sources be protected? |
| Effective Crime Prevention Effective crime prevention will not be hindered by protecting the confidentiality of journalists’ sources. Just like any other citizen, law enforcement personnel are entitled to reap the benefits of a journalist’s work. For instance, police may not have been aware of the extent of the drug problem in this case without Branzburg’s story. If Branzburg is forced to reveal his sources, law enforcement may be able to apprehend a few criminals, but the deterrent effect will likely stifle the future publication of stories, like the one at issue in this case, that may be beneficial to law enforcement. | Effective Crime Prevention Freedom of the press is not the only right that comes into play when members of the press are asked to reveal their confidential sources. Often, as in this case, prosecutors ask journalists to reveal their sources to a grand jury in order to investigate crime. Even assuming, for the sake of argument, that the First Amendment protects journalists from revealing their sources, why does this right automatically trump the citizenry’s right to have law enforcement personnel effectively fight crime? Sometimes freedom of the press must yield to the citizenry’s right to be free from crime. |
| 5. Would requiring journalists to reveal their sources before a grand jury set the stage for government's abuse of its power? |
| Effective Crime Prevention Since the grand jury conducts its proceedings in secret, requiring a journalist to reveal confidential sources is prone to prosecutorial abuse. There is no guarantee, for instance, that the information sought will have any bearing on a criminal investigation. A prosecutor may simply ask for names in order to harass certain individuals and/or to find out information that could subject others to public ridicule. | Effective Crime Prevention There is no evidence that prosecutors abuse their privilege to conduct a grand jury. To the contrary, grand juries serve as a bulwark for the citizenry against overzealous prosecutors. Without an indictment from a grand jury, prosecutors cannot bring charges against an individual. In the rare cases where prosecutors do act inappropriately, the Courts provide suitable remedies. |