Branzburg v. Hayes: The Evolution of the Reporters’ Privilege

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The Supreme Court has only considered the existence of a reporters’ privilege once during its storied history, and it ultimately concluded that the First Amendment does not afford such protections. Yet, Branzburg v. Hayes is cited today as establishing a test for determining when the reporters’ privilege can be used to prevent confidential sources and information from being compelled.

The Facts of the Case

The appeal before the Supreme Court involved several individual cases in which reporters were called to testify before grand juries and reveal the identities of confidential sources. All of the reporters refused to appear. The question before the Supreme Court was whether requiring reporters to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment.

The Supreme Court’s Decision

The Supreme Court concluded that the First Amendment to the Constitution did not afford reporters any special protections. "Until now, the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination," Justice Byron White wrote for the majority. "We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do."

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