Mr. Paul M. Branzburg

• 
  www.commentarymagazine.com/viewArticle.cfm/Why-Journali - [Cached Version]
  Published on: 1/1/2008    Last Visited: 2/26/2009  

  Paul Branzburg, a reporter for the Louisville Courier-Journal, had witnessed people manufacturing and using illegal narcotics.
  ...
  Today, five of the twelve circuits in the federal system have relied on Branzburg to compel journalists to provide confidential information; another four, basing themselves on Powell's inscrutable words, have granted journalists a qualified privilege.
  ...
  Such leaks have proliferated, even though Branzburg is on the books and the shadow of Judith Miller's imprisonment has supposedly given pause to informants considering whether they can trust a reporter.
  ...
  Anticipating this very problem, Justice White observed in Branzburg that, sooner or later, administering a constitutional privilege for reporters would necessitate defining "those categories of newsmen who qualified for the privilege.
  ...
  As Justice White stressed in Branzburg, freedom of the press is not a right "confined to newspapers and periodicals" but rather a "fundamental personal right" that attaches to all of us. Any effort to restrict this personal right to a few select professionals will collide with the reality that "[t]he informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.
  ...
  4 A different set of issues is presented by the fact that, in the aftermath of Branzburg, the press has been hit with a growing number of subpoenas for source material arising out of civil litigation, including in two high-profile cases. In 2004, five reporters were held in contempt by a federal judge for refusing to testify about their sources in a case brought by Wen Ho Lee, the Los Alamos atomic scientist who pleaded guilty to a charge of mishandling secret documents but then sued the government for violating his privacy rights.

• 
  www.commentarymagazine.com/viewArticle.cfm/Why-Journali - [Cached Version]
  Published on: 1/1/2008    Last Visited: 4/10/2008  

  Paul Branzburg, a reporter for the Louisville Courier-Journal, had witnessed people manufacturing and using illegal narcotics.
  ...
  Today, five of the twelve circuits in the federal system have relied on Branzburg to compel journalists to provide confidential information; another four, basing themselves on Powell's inscrutable words, have granted journalists a qualified privilege.
  ...
  Such leaks have proliferated, even though Branzburg is on the books and the shadow of Judith Miller's imprisonment has supposedly given pause to informants considering whether they can trust a reporter.
  ...
  Anticipating this very problem, Justice White observed in Branzburg that, sooner or later, administering a constitutional privilege for reporters would necessitate defining "those categories of newsmen who qualified for the privilege."But such a procedure, he noted, would itself inevitably do violence to "the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods."
  ...
  As Justice White stressed in Branzburg, freedom of the press is not a right "confined to newspapers and periodicals" but rather a "fundamental personal right" that attaches to all of us.Any effort to restrict this personal right to a few select professionals will collide with the reality that "[t]he informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists."
  ...
  4 A different set of issues is presented by the fact that, in the aftermath of Branzburg, the press has been hit with a growing number of subpoenas for source material arising out of civil litigation, including in two high-profile cases.In 2004, five reporters were held in contempt by a federal judge for refusing to testify about their sources in a case brought by Wen Ho Lee, the Los Alamos atomic scientist who pleaded guilty to a charge of mishandling secret documents but then sued the government for violating his privacy rights.

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  ASNE - Knoxville News Sentinel — Senate should... - [Cached Version]
  Published on: 7/31/2008    Last Visited: 5/13/2009  

  In its '72 decision, the Supreme Court ruled 5-4 that Paul Branzburg, a reporter with The Louisville Courier-Journal, did not have a constitutional right of protection from revealing confidential information in court.

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  Breach Of Contract Federal Matter - [Cached Version]
  Published on: 6/19/2004    Last Visited: 3/10/2005  

  In November 1969 Paul Branzburg, a twenty-eight-year-old reporter with the Louisville Courier-Journal , spent a few days hanging out with two local men for a story about how they planned to clear $5,000 making and selling a batch of hashish.

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  CJR January/February 2005: On the Job: Attack At The... - [Cached Version]
  Published on: 6/28/2006    Last Visited: 6/28/2006  

  In November 1969 Paul Branzburg, a twenty-eight-year-old reporter with the Louisville Courier-Journal, spent a few days hanging out with two local men for a story about how they planned to clear $5,000 making and selling a batch of hashish.The resulting article, THE HASH THEY MAKE ISN'T TO EAT, ran in the paper's November 15 edition.In it Branzburg, a graduate of Harvard Law School and Columbia University's Graduate School of Journalism, revealed that he had changed the men's names to protect their identity.The article was meant, Branzburg's lawyer would later say, to inform readers about the views of "hippies and dissidents" who were becoming an increasingly influential presence in American life.For their part, "Larry" and "Jack" said the main reason they let Branzburg do the story was to "make the narcs mad."
  ...
  Shortly after the story ran, Branzburg was subpoenaed by the Jefferson County district attorney to appear before a state grand jury investigating the local drug trade.He was asked twice to name the men he had observed in possession of marijuana.He refused to answer and was held in contempt of court.Undaunted, Branzburg later wrote another exposé, this time detailing pot use in Frankfort, Kentucky's capital city.He was again hauled before a grand jury and asked about the criminal acts he had observed.He again refused to testify.
  ...
  Wasn't Branzburg asking for the right to exist above the law?Justice Potter Stewart wondered.
  ...
  I thought about White's conclusion as I sat on a wooden bench in federal court last December, rereading the decision and waiting for arguments to begin in what many consider to be the most important test case on press freedoms since Branzburg was handed down more than thirty years ago.
  
  Was the press still flourishing?
  ...
  But as Branzburg made clear, those First Amendment protections may guard the final product but don't necessarily extend to newsgathering.
  ...
  In particular, Judge David Sentelle repeatedly challenged Abrams to distinguish Miller's and Cooper's refusals to testify before the grand jury from Paul Branzburg's similar refusal thirty-five years earlier.
  ...
  Abrams attempted to parry the challenge, noting that there had been significant developments in the reporter's privilege since Branzburg.
  ...
  Judge David Tatel was less overtly hostile, but like Justice Burger in Branzburg, seemed to struggle with the question of who would qualify for a reporter's privilege.
  ...
  In Branzburg, the central question was whether the First Amendment's guarantee of freedom of the press could be extended to protect the identity of those who give the press information.The answer was no.But a brief concurrence written by Justice Lewis Powell, the crucial fifth vote in the case, held out the hope that future developments in the law might give rise to a court-recognized privilege.And First Amendment advocates contend that the "developments" Powell foresaw have come to pass.In 1972 when Branzburg was decided, only seventeen states had reporter "shield laws," protecting reporters from being forced to out their sources.
  ...
  Moreover, as in Branzburg, any reporters getting the leaks may have directly witnessed a crime being committed, the hardest situation in which to assert a privilege.
  ...
  If that happens, most lawyers think that the current Court, with its concern over privacy issues, would squarely come down on the side of the narrow reading of Branzburg.
  ...
  Posner wrote that "rather surprisingly" a large number of federal courts after Branzburg had decided that there was a reporter's privilege, a conclusion Posner found "audacious."
  ...
  Rather, Posner thought, Branzburg indicated that subpoenas of journalists should be treated the same as subpoenas issued to anyone else.
  ...
  In Branzburg the Court held that Congress was free to fashion a newsman's privilege "as narrow or broad as deemed necessary."
  ...
  Much like Plame, Branzburg arrived during a time of peril for the press.During the first two years of the Nixon administration CBS and NBC alone were served more than fifty subpoenas by the government.This magazine warned at the time that a "subpoena epidemic" was overtaking American journalism, threatening to turn reporters into a "de-facto arm of the Attorney General's office."Though the Justice Department adopted stricter guidelines in 1970 on subpoenaing reporters, Branzburg seemed to accelerate the trend for a time.
  ...
  But it is also worth noting that Branzburg was handed down just twelve days before the break-in at the Watergate Hotel in 1972 that lead to the resignation of a president and perhaps the most triumphant moment in the history of the American press.And despite all the dire predictions after Branzburg, the decision did little to impede the reporting that Bob Woodward, Carl Bernstein, and others did for the story.
  ...
  As for Paul Branzburg, after losing at the Supreme Court he was sentenced to six months in jail.He had moved on to Michigan to work for The Detroit Free Press, but Wendell Ford, Kentucky's governor, personally lobbied Governor William Milliken of Michigan to extradite the reporter back to the Bluegrass state for sentencing.Milliken refused and Branzburg never returned to Kentucky or served a day in jail.
  ...
  And back then the decision in Branzburg was greeted with calls for increased press protections from the public and politicians of both parties.

• 
  CJR January/February 2005: On the Job: Attack At The... - [Cached Version]
  Published on: 1/1/2005    Last Visited: 1/9/2007  

  In November 1969 Paul Branzburg, a twenty-eight-year-old reporter with the Louisville Courier-Journal, spent a few days hanging out with two local men for a story about how they planned to clear $5,000 making and selling a batch of hashish.The resulting article, THE HASH THEY MAKE ISN'T TO EAT, ran in the paper's November 15 edition.In it Branzburg, a graduate of Harvard Law School and Columbia University's Graduate School of Journalism, revealed that he had changed the men's names to protect their identity.The article was meant, Branzburg's lawyer would later say, to inform readers about the views of "hippies and dissidents" who were becoming an increasingly influential presence in American life.For their part, "Larry" and "Jack" said the main reason they let Branzburg do the story was to "make the narcs mad."
  ...
  Shortly after the story ran, Branzburg was subpoenaed by the Jefferson County district attorney to appear before a state grand jury investigating the local drug trade.He was asked twice to name the men he had observed in possession of marijuana.He refused to answer and was held in contempt of court.Undaunted, Branzburg later wrote another exposé, this time detailing pot use in Frankfort, Kentucky's capital city.He was again hauled before a grand jury and asked about the criminal acts he had observed.He again refused to testify.
  ...
  Wasn't Branzburg asking for the right to exist above the law?Justice Potter Stewart wondered.
  ...
  I thought about White's conclusion as I sat on a wooden bench in federal court last December, rereading the decision and waiting for arguments to begin in what many consider to be the most important test case on press freedoms since Branzburg was handed down more than thirty years ago.
  
  Was the press still flourishing?
  ...
  But as Branzburg made clear, those First Amendment protections may guard the final product but don't necessarily extend to newsgathering.
  ...
  In particular, Judge David Sentelle repeatedly challenged Abrams to distinguish Miller's and Cooper's refusals to testify before the grand jury from Paul Branzburg's similar refusal thirty-five years earlier.
  ...
  Abrams attempted to parry the challenge, noting that there had been significant developments in the reporter's privilege since Branzburg.
  ...
  Judge David Tatel was less overtly hostile, but like Justice Burger in Branzburg, seemed to struggle with the question of who would qualify for a reporter's privilege.
  ...
  In Branzburg, the central question was whether the First Amendment's guarantee of freedom of the press could be extended to protect the identity of those who give the press information.The answer was no.But a brief concurrence written by Justice Lewis Powell, the crucial fifth vote in the case, held out the hope that future developments in the law might give rise to a court-recognized privilege.And First Amendment advocates contend that the "developments" Powell foresaw have come to pass.In 1972 when Branzburg was decided, only seventeen states had reporter "shield laws," protecting reporters from being forced to out their sources.
  ...
  Moreover, as in Branzburg, any reporters getting the leaks may have directly witnessed a crime being committed, the hardest situation in which to assert a privilege.
  ...
  If that happens, most lawyers think that the current Court, with its concern over privacy issues, would squarely come down on the side of the narrow reading of Branzburg.
  ...
  Posner wrote that "rather surprisingly" a large number of federal courts after Branzburg had decided that there was a reporter's privilege, a conclusion Posner found "audacious."
  ...
  Rather, Posner thought, Branzburg indicated that subpoenas of journalists should be treated the same as subpoenas issued to anyone else.
  ...
  In Branzburg the Court held that Congress was free to fashion a newsman's privilege "as narrow or broad as deemed necessary."
  ...
  Much like Plame, Branzburg arrived during a time of peril for the press.During the first two years of the Nixon administration CBS and NBC alone were served more than fifty subpoenas by the government.This magazine warned at the time that a "subpoena epidemic" was overtaking American journalism, threatening to turn reporters into a "de-facto arm of the Attorney General's office."Though the Justice Department adopted stricter guidelines in 1970 on subpoenaing reporters, Branzburg seemed to accelerate the trend for a time.Lawyers for Vice President Spiro Agnew, a vociferous press critic, hit eight reporters with subpoenas over leaks in the government's criminal investigation of his financial dealings (Agnew would resign in October of 1973 in a bribery scandal).So many reporters were either in jail or facing the prospect of going there for defying subpoenas that one editor quipped to The New York Times that a hacksaw was becoming a standard issue item in the modern journalist's tool kit.
  
  But it is also worth noting that Branzburg was handed down just twelve days before the break-in at the Watergate Hotel in 1972 that lead to the resignation of a president and perhaps the most triumphant moment in the history of the American press.And despite all the dire predictions after Branzburg, the decision did little to impede the reporting that Bob Woodward, Carl Bernstein, and others did for the story.
  ...
  As for Paul Branzburg, after losing at the Supreme Court he was sentenced to six months in jail.He had moved on to Michigan to work for The Detroit Free Press, but Wendell Ford, Kentucky's governor, personally lobbied Governor William Milliken of Michigan to extradite the reporter back to the Bluegrass state for sentencing.Milliken refused and Branzburg never returned to Kentucky or served a day in jail.
  ...
  And back then the decision in Branzburg was greeted with calls for increased press protections from the public and politicians of both parties.

• 
  CJR January/February 2005: On the Job: Attack At The... - [Cached Version]
  Published on: 3/26/2005    Last Visited: 3/26/2005  

  In November 1969 Paul Branzburg, a twenty-eight-year-old reporter with the Louisville Courier-Journal, spent a few days hanging out with two local men for a story about how they planned to clear $5,000 making and selling a batch of hashish.The resulting article, THE HASH THEY MAKE ISN'T TO EAT, ran in the paper's November 15 edition.In it Branzburg, a graduate of Harvard Law School and Columbia University's Graduate School of Journalism, revealed that he had changed the men's names to protect their identity.The article was meant, Branzburg's lawyer would later say, to inform readers about the views of "hippies and dissidents" who were becoming an increasingly influential presence in American life.For their part, "Larry" and "Jack" said the main reason they let Branzburg do the story was to "make the narcs mad."
  ...
  Shortly after the story ran, Branzburg was subpoenaed by the Jefferson County district attorney to appear before a state grand jury investigating the local drug trade.He was asked twice to name the men he had observed in possession of marijuana.He refused to answer and was held in contempt of court.Undaunted, Branzburg later wrote another exposé, this time detailing pot use in Frankfort, Kentucky's capital city.He was again hauled before a grand jury and asked about the criminal acts he had observed.He again refused to testify.
  ...
  Wasn't Branzburg asking for the right to exist above the law?Justice Potter Stewart wondered.
  ...
  I thought about White's conclusion as I sat on a wooden bench in federal court last December, rereading the decision and waiting for arguments to begin in what many consider to be the most important test case on press freedoms since Branzburg was handed down more than thirty years ago.
  
  Was the press still flourishing?
  ...
  But as Branzburg made clear, those First Amendment protections may guard the final product but don't necessarily extend to newsgathering.
  ...
  Abrams attempted to parry the challenge, noting that there had been significant developments in the reporter's privilege since Branzburg.
  ...
  Judge David Tatel was less overtly hostile, but like Justice Burger in Branzburg, seemed to struggle with the question of who would qualify for a reporter's privilege.
  ...
  In Branzburg, the central question was whether the First Amendment's guarantee of freedom of the press could be extended to protect the identity of those who give the press information.The answer was no.But a brief concurrence written by Justice Lewis Powell, the crucial fifth vote in the case, held out the hope that future developments in the law might give rise to a court-recognized privilege.And First Amendment advocates contend that the "developments" Powell foresaw have come to pass.In 1972 when Branzburg was decided, only seventeen states had reporter "shield laws," protecting reporters from being forced to out their sources.
  ...
  Moreover, as in Branzburg, any reporters getting the leaks may have directly witnessed a crime being committed, the hardest situation in which to assert a privilege.
  ...
  If that happens, most lawyers think that the current Court, with its concern over privacy issues, would squarely come down on the side of the narrow reading of Branzburg.
  ...
  Posner wrote that "rather surprisingly" a large number of federal courts after Branzburg had decided that there was a reporter's privilege, a conclusion Posner found "audacious."
  ...
  Rather, Posner thought, Branzburg indicated that subpoenas of journalists should be treated the same as subpoenas issued to anyone else.
  ...
  In Branzburg the Court held that Congress was free to fashion a newsman's privilege "as narrow or broad as deemed necessary."
  ...
  Much like Plame, Branzburg arrived during a time of peril for the press.During the first two years of the Nixon administration CBS and NBC alone were served more than fifty subpoenas by the government.This magazine warned at the time that a "subpoena epidemic" was overtaking American journalism, threatening to turn reporters into a "de-facto arm of the Attorney General's office."Though the Justice Department adopted stricter guidelines in 1970 on subpoenaing reporters, Branzburg seemed to accelerate the trend for a time.Lawyers for Vice President Spiro Agnew, a vociferous press critic, hit eight reporters with subpoenas over leaks in the government's criminal investigation of his financial dealings (Agnew would resign in October of 1973 in a bribery scandal).So many reporters were either in jail or facing the prospect of going there for defying subpoenas that one editor quipped to The New York Times that a hacksaw was becoming a standard issue item in the modern journalist's tool kit.
  
  But it is also worth noting that Branzburg was handed down just twelve days before the break-in at the Watergate Hotel in 1972 that lead to the resignation of a president and perhaps the most triumphant moment in the history of the American press.And despite all the dire predictions after Branzburg, the decision did little to impede the reporting that Bob Woodward, Carl Bernstein, and others did for the story.
  ...
  As for Paul Branzburg, after losing at the Supreme Court he was sentenced to six months in jail.He had moved on to Michigan to work for The Detroit Free Press, but Wendell Ford, Kentucky's governor, personally lobbied Governor William Milliken of Michigan to extradite the reporter back to the Bluegrass state for sentencing.Milliken refused and Branzburg never returned to Kentucky or served a day in jail.
  ...
  And back then the decision in Branzburg was greeted with calls for increased press protections from the public and politicians of both parties.

• 
  CJR July/August 2004: Lowering my Shield by Mark Bowden - [Cached Version]
  Published on: 7/16/2004    Last Visited: 7/16/2004  

  The only time the U.S. Supreme Court has considered the matter is the 1972 case of Branzburg v. Hayes, which concerned the predicaments of three reporters, Earl Caldwell of The New York Times; Paul Pappas, a TV reporter from New Bedford, Massachusetts; and Paul Branzburg of the Louisville Courier-Journal.
  ...
  Branzburg had interviewed some local pot dealers who were converting marijuana into hash at home and had refused to lead the police to his sources.
  ...
  When Branzburg was decided, only seventeen states had shield laws - one of them was Pennsylvania, whose law dates back to 1937.

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  Matt Cooper: First Amendment Martyr - [Cached Version]
  Published on: 2/7/2006    Last Visited: 11/29/2007  

  Paul Branzburg was a reporter with the Louisville Courier-Journal, and wrote an article on the manufacture and sale of hashish in Kentucky.After the article ran, Branzburg was promptly subpoenaed before a Jefferson County grand jury and asked to identify the drug sellers about whom he wrote.Understandably, Branzburg refused, and took his refusal all the way to the Supreme Court. (The Supreme Court case was also bundled with a Massachusetts television reporter and New York Times reporter based in northern California who independently did stories on the Black Panthers, and similarly were called before grand juries and refused to answer questions as to who and what they witnessed within the Black Panther headquarters.)
  ...
  And sadly, I am confident that the current Supreme Court, whose only overlap with the Branzburg decision is the aforementioned Rehnquist, and who has no current civil libertarians in the towering mold of Brennan or Marshall (who both dissented in Branzburg), would uphold this decision--ignoring Justice Douglas's stirring (and eerily prescient) dissent that:
  ...
  The U.S. Supreme Court, ultimate guardian of our liberty, refused to engage in any balancing; the majority in Branzburg simply threw the free press clause into the trash.

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  SportsShooter.com - Journalist's Privilege?? - [Cached Version]
  Published on: 2/17/2005    Last Visited: 2/17/2005  

  Paul Branzburg, a reporter for the Louisville Courier-Journal, was called to testify before a grand jury about drug use in Kentucky after he wrote articles about drugs and drug dealers.He refused, was cited for contempt of court, and appealed all the way to the US Supreme Court.

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