It has been more than half a century since the Supreme Court issued its only decision on whether the First Amendment allows prosecutors to force reporters to testify about their confidential sources.
The meaning of that precedent, Branzburg v. Hayes, is contested, and how the courts apply it may determine the fate of the Trump administration’s aggressive efforts to compel journalists to reveal their sources.
The Justice Department recently issued subpoenas to reporters at The Wall Street Journal and The Washington Post in connection with leak investigations, only to back down after the news organizations fought them in sealed filings — ones that doubtless cited Branzburg. Last week, the administration was back at it, serving subpoenas seeking testimony from several New York Times reporters about their reporting on the security shortcomings of the new Air Force One.
There are three ways to look at Branzburg, a 5-to-4 decision from 1972.
One is as a sharp blow to press freedom. Justice Byron White, writing for a five-justice majority, said that the journalists in that case could not protect their confidential sources and had to tell grand juries what they had learned while reporting on the manufacturing of illegal drugs and on the activities of the Black Panthers.
The public interest in law enforcement, Justice White wrote, outweighed the “consequential but uncertain” harms caused by compelling reporters to divulge their sources.
The second way to look at that 1972 decision is to focus on a brief and cryptic concurring opinion from Justice Lewis Powell, who joined the majority but offered some additional thoughts that seemed not only to limit the sweep of the majority opinion but also to require courts to take account of the crucial role the news media plays in a democracy.
He called for “a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct,” adding that judges should consider “these vital constitutional and societal interests on a case-by-case basis.”
In the decades that followed, lawyers for the news media — including me, in a former life — seized on Justice Powell’s opaque opinion to help convince many lower federal courts that Branzburg had in fact been a victory for the press, one that made it quite hard for prosecutors and litigants to obtain confidential information from reporters.
Those courts occasionally quashed subpoenas to journalists outright, and often insisted that such subpoenas be used only as a last resort, which as a practical matter often amounted to the same thing.
This effort was helped by a comment from Justice Potter Stewart, who had dissented in Branzburg and believed reporters should not be forced to testify. In a 1974 speech at Yale Law School, he said Justice Powell’s opinion meant that the court had split “perhaps by a vote of four and a half to four and a half.”
That line of argument hit a roadblock in 2003 when an influential federal appeals court judge ruled that the majority opinion in Branzburg, which Justice Powell had signed, meant what it said.
“A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege,” Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit wrote at the time.
But there is a third way to look at Branzburg — and this one is good news for reporters. It focuses on a crucial passage in the majority opinion itself, one that seemed to anticipate an administration at war with the press.
“Grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment,” Justice White wrote. “Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification.”
Courts should be vigilant about abusive subpoenas, Justice White added. “Grand juries are subject to judicial control and subpoenas to motions to quash,” he said. “We do not expect courts will forget that grand juries must operate within the limits of the First Amendment.”
Justice Powell’s concurring opinion underscored the point. “No harassment of newsmen,” he wrote, “will be tolerated.”
Even Judge Posner was more or less on board with the idea that the government’s ability to subpoena reporters was not unlimited. He said that courts should make sure that subpoenas to the news media are “reasonable in the circumstances, which is the general criterion for judicial review of subpoenas.”
A central message of Branzburg, then, is that judges must assess whether an investigation is being conducted in good faith, and whether subpoenas appear to be an attempt to harass.
The Supreme Court has not addressed the issue since then. Just this month, it refused to intervene in the case of Catherine Herridge, a former Fox News reporter who was ordered to reveal a confidential source or pay $800 a day in court fines. Justice Brett Kavanaugh said he would have blocked the order while Herridge appealed.
The Herridge case arose from civil litigation, not a criminal prosecution. The trial judge, saying he recognized “the paramount importance of a free press in our society and the critical role that confidential sources play in the work of investigative journalists,” ordered Herridge to testify only after the plaintiff had, as he put it, “pounded the pavement to uncover the identity of the potential leaker” over five years, taking depositions from 18 current and former government employees and gathering declarations from 22 of them.
The subpoenas to the Times reporters were issued almost immediately after their articles were published, and delivered to some of their homes on a Friday evening.
In a video published by The Times on Wednesday, Joe Kahn, The Times’s executive editor, described the subpoenas as “a naked attempt to intimidate The New York Times and to keep us from reporting on matters that we think are essential to national security.” The Times filed a motion to quash the subpoenas on Wednesday.
A Justice Department spokeswoman insisted that its investigation was not aimed at journalists. “Reporters are not the targets,” she said. “Those leaking classified information are.”
That statement is in tension with the department’s actions, and it calls to mind something that Justice White wrote for the court in Branzburg more than 50 years ago.
“Without some protection for seeking out the news,” he said, “freedom of the press could be eviscerated.”
Other Things Worth Knowing About
Monday’s slashing decision from Judge Kathleen Williams denouncing Trump’s lawsuit against the Internal Revenue Service was notable for many reasons, including its denunciation of the suit as collusive self-dealing and its suggestion that the president’s lawyers should face professional discipline. Less widely noted was her citation of last month’s Supreme Court ruling that presidents must have complete control over executive branch officials. She said that Trump had taken flatly inconsistent positions in the two cases, arguing before her that the I.R.S. was an authentic adversary but telling the Supreme Court that executive branch officials had to follow his instructions.
A few weeks ago, I wrote about the awkward business of citing yourself, after Justice Amy Coney Barrett referred to two of her own law review articles, from 2006 and 2008, to explain why she had voted as she had. I wish I had known about a thorough and lively exploration of the topic in 2021 by Joel Heller in The University of Illinois Law Review. It is called, fittingly, “Auto-Citation.”
Mailbag
Ideas from Readers on Partisan Gerrymandering
I got a lot of mail in response to a recent question from Eileen Pruette, who asked whether there was any way for voters in North Carolina to mount a challenge in federal court to the state’s congressional voting map, which has been gerrymandered in favor of Republicans.
“Maybe I’m missing something,” I wrote, “but I can’t see one.”
Several readers had ideas, though they were mostly about changing the composition of the state and federal courts that would consider challenges to voting maps warped by politics.
One reader, Anand Kumar, noted that members of the North Carolina Supreme Court are elected in statewide elections, meaning that the court itself can’t be gerrymandered.
The elections are also partisan, with candidates running as Republicans or Democrats. Those partisan affiliations have perfectly predicted the court’s recent rulings on gerrymandering.
In February 2022, the court, which included four Democratic justices and three Republican ones, split along party lines to strike down gerrymandered voting maps.
After elections that November, the composition of the court changed to favor Republicans by a 5-to-2 margin. The new majority promptly overturned the 2022 decision, over the dissents of the two remaining Democratic justices.
So one possible solution to partisan gerrymandering is to rely on a partisan judiciary to drive partisanship out of politics.
Along similar lines, another reader, Peter Schmidt, argued for increasing the size of the U.S. Supreme Court to 13 justices, which would require, for starters, Democrats to retake Congress. The newly expanded court, he said, could disavow Rucho v. Common Cause, the 2019 decision that closed the door to federal challenges to partisan gerrymandering.
Joel Hoffman wrote to say that the Constitution’s so-called guarantee clause, which says that “the United States shall guarantee to every state in this union a republican form of government,” could be a basis for a challenge.
But Chief Justice John Roberts, writing for the majority in Rucho, said the court had long held that the guarantee clause could not be enforced in federal court. The matter, he suggested, was a political question for Congress to address.
I’d love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].
Closing Argument
A Birthright Citizenship Loophole?
If there was one thing every party and every justice agreed on in last month’s decision striking down Trump’s executive order limiting birthright citizenship, it was that the babies of foreign diplomats were not eligible for citizenship. Those children, they all agreed, were an exception to the general rule that everyone born in the United States automatically becomes a citizen.
A 2015 law review article by Daniel Pines, then a lawyer for the C.I.A., did not dispute that. “Yet,” he wrote, “as a matter of practice, children born in this country to foreign diplomats are routinely afforded U.S. citizenship. Indeed, it appears to be the rare exception where such a child does not automatically become a U.S. citizen.”
He said it happens because hospitals in the United States seem to issue birth certificates to all babies born in them — without interrogating parents about their diplomatic status. Birth certificates, in turn, are presumptive proof of citizenship. Mr. Pines suggested that thousands of children of diplomats had obtained citizenship this way.
Peter Spiro, a law professor at Temple University and an authority on citizenship, said the problem, if it was one, was trivial in the scheme of things. He added that citizenship could be revoked if the government later learned that it was granted in error.
The more important point, Spiro said, was that the phenomenon provided a glimpse of the burdens that hospitals would have faced had the Supreme Court come out the other way. That ruling would have required a revamping of how hospitals have issued birth certificates for generations.
“Requiring determinations of parental immigration status,” he said, “would have produced chaos on the ground.”
Please send me your comments on subpoenas, a free press, gerrymandering, diplomats or anything else at [email protected]. See you next week. — Adam