"Freedom Of The Press" Doesn't Afford The Media Special Constitutional Protection

Wednesday, November 16, 2011
Branzburg v. Hayes (1972): The Meaning Of "Freedom Of The Press" And Why The First Amendment Doesn't Afford Media Extra Constitutional Protection

Many people believe in the misconception that the newsman is afforded extra Constitutional protection by the First Amendment which states that "Congress shall make no law...abridging...the freedom of speech, or of the press." This is simply not the case. The Supreme Court rightly recognized that notion is based on fallacious reasoning, though later federal appellate courts have not been as wise in applying that precedent.

"Freedom of the press" is not a term synonymous with today's media or news reporting, it refers first and foremost to the printing press, (which produced, for example, such important political opinionated works as "Common Sense" critical to the American Revolution). The Amendment was saying that the spoken and written word is to be considered a Constitutionally protected right (within certain boundaries, of course, e.g., defamation and the like). Freedom of speech, followed immediately by freedom of the press, separated only by a comma, are therefore not completely independent clauses. They are bound together in the same clause of the First Amendment for this reason. It is unconvincing to believe that newspapers or TV news channels are entitled or were intended to be entitled to extra Constitutional protection above and beyond individuals or associations of individuals. Justice Joseph Story wrote in his Commentaries on the Constitution (1833), "It [freedom of the press] is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends... [unlike having] [t]he art of printing...looked upon, as...in England, as in other countries, as merely a matter of state, and subject to the coercion of the crown." Historically in England, Justice Story explained, the crown had exercised the power of limiting "the number of printers, and of presses, which each should employ, and prohibited new publications, unless previously approved by proper licensers." It was the power of the new federal government to control the printing press that the First Amendment was to disallow.

"Father of the Constitution" James Madison said in the First Congress in 1789 when the First Amendment was proposed that "the liberty of the press is expressly declared to be beyond the reach of this [federal] Government; the people may therefore publicly address their representatives, may privately advise them, or declare their sentiment by petition to the whole body; in all these ways they may communicate their will." Using the printing press to engage in political communications or pamphleteering was at the heart of the First Amendment. This applied equally to all, regardless of whether an individual happened to be employed by a newspaper. Further, in response to the Sedition Act of President John Adams which criminalized criticism of his administration, James Madison in his Report of 1800 explained that "[i]n the United States the case is altogether different. The People, not the Government, possess the absolute sovereignty. The Legislature, no less than the Executive, is under limitations of power. Encroachments are regarded as possible from the one as well as from the other... They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws... [T]his exemption, to be effectual, must be an exemption not only from the previous inspection of licensers, but from the subsequent penalty of laws." The fact is that a reporter for the New York Times and a person using his desktop at home to write a political tract have equal First Amendment rights. Many today associate the freedom of the press with a special protection for the newsman or media alone, but nothing could be further from the truth.

In Lovell v. City of Griffin (1938) Supreme Court Chief Justice Charles Evan Hughes therefore astutely defined the press as "every sort of publication which affords a vehicle of information and opinion." In Branzburg v. Hayes (1972) a plurality of the Supreme Court ruled on a case that dealt with a reporter who after observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky wrote a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. He refused to testify and disclose his sources, claiming that even though the average citizen would have to answer before a grand jury, an investigative journalist was immune by a special "reporter's privilege" granted under freedom of the press. The Court stated that
"The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do, and to answer questions relevant to an investigation into the commission of crime. The Court went on to say that "[i]t has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally... We are asked to create another [testimonial privilege] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do... [T]he press has the right to abide by its agreement not to publish all the information it has, but the right to withhold news is not equivalent to a First Amendment exemption from the ordinary duty of all other citizens to furnish relevant information to a grand jury performing an important public function... The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures before a grand jury" (emphasis added).
The Supreme Court's holding was exactly in line with with the original meaning of the First Amendment, as the newsman and the individual citizen have the same rights to utilize the printing press with the same level of interference of law where appropriate. The Court then found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment.

Justice Lewis Powell authored a concurring opinion in Branzburg in which he argued that "[t]he asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." Justice Powell's concurrence was latched onto by later appellate courts wanting create a reporter's privilege out of the First Amendment despite a plurality of the Court having not adopted his approach. Other appellate courts still have blatantly misconstrued the plurality holding. In fact what happened with later appellate courts actually shows even the lower court ability to twist precedent to serve their own purposes. Many appellate decisions represent outcome-oriented clear departures from the plurality in Branzburg. In Zerilli v. Smith (D.C. Cir. 1981) a court said a "qualified privilege would be available in some circumstances even where a reporter is called before a grand jury to testify.” In U.S. v. Cuthbertson (3d Cir. 1980) another court ruled a qualified privilege extended to criminal cases using a judicial balancing test. A different court decided in Gonzaelz v. NBC (2d. Cir. 1999) that a qualified privilige does not apply to nonconfidential sources. In In Re Special Proceedings (1st Cir. 2004) a court said a reporter's privilege does not apply to good faith investigations where the reporter attempted to attain alternative sources. This is but a sampling of some of the confused rulings all over the judicial map that depart from a plurality opinion that states a simple principle that the newsman and the average citizen possess the same Constitutional rights. The Supreme Court has thus far refused to set the record straight.

In Mckevitt v. Palasch (7th Cir. 2003), Judge Richard Posner persuasively pointed this all out, how some of the other appellate rulings after that case “essentially ignore” Branzburg. Others, he claimed, misread the case. And still others, he complained regarding his fellow judges, “audaciously declare that Branzburg actually created a reporter’s privilege.” All of these decisions, Posner concluded, “can certainly be questioned.” Later appellate courts completely distort and misinterpret (or don't carefully read or care about) the actual Branzburg plurality opinion, which (in its general agreement with my points above) ruled correctly.

Let's remember this is not dicta in Branzburg, it's the very essence of the bottom line holding of the case: "We are asked to create another [testimonial privilege] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do." The Court found that there was a paramount and compelling interest in the case, which is to say that the government's interest in forcing disclosure meets even the highest standards possible (that's how weak the media claims were in this case). The plurality in Branzburg made it repeatedly clear that they did not believe "freedom of the press" was to mean the newsman has extra constitutional rights beyond any other author or speaker. And this is a correct holding as freedom of the press originally and quite obviously meant the printing press, which is to say that it does not actually mean the typical news reporter is to have special Constitutional rights. This is to say that the issue of whether reporters should be afforded special rights is one to be left with the legislative branch of government, not to be judicially decided by judges twisting Supreme Court precedent along with the original meaning of the Constitution.

James Madison, in the debates and discussions over the adoption of the Bill of Rights, described "the freedom of the press and rights of conscience" as "those choicest privileges of the people" which "are unguarded in the British constitution." Both the mouth and the pen were to be free tools for the expression of the rights of conscience. A reporter on MSNBC, or a writer for the New York Times, has no special access to this important right that would be denied to any other citizen. As early Constitutional scholar St. George Tucker wrote in 1803, "Every individual, certainly, has a right to speak, or publish, his sentiments on the measures of government: to do this without restraint, control, or fear of punishment for so doing, is that which constitutes the genuine freedom of the press" (emphasis added).