Branzburg is a reporter for a daily newspaper in Kentucky. Between 1969 and 1971 he published a series of reports on the local drug epidemic. One report exposed the use of cannabis resin by local drug gangs to make marijuana, and was accompanied by a picture of a pair of hands on a test stand to make marijuana; in another, to learn more about drugs in Kentucky He has conducted in-depth interviews with drug addicts. Branzburg was subpoenaed by a grand jury for information on drug gangs and addicts because of the two reports, but Branzburg refused, arguing that he had the right to freedom of the press and freedom of speech under the First Amendment of the Constitution. The lawsuit went all the way to the Supreme Court, and the nine justices denied Branzburg's appeal in a 5:4 result.
Justice White's reasons for denying it are as follows:
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. Citizens generally are not constitutionally immune from grand jury subpoenas, and neither the First Amendment nor any other constitutional provision protects the average citizen from disclosing to a grand jury information that he has received in confidence.
The crux of the question is whether journalists, like other citizens, have to deal with grand jury subpoenas and answer questions related to criminal investigations . If ordinary citizens are required to fulfill their constitutional obligations, and the First Amendment or other provisions of the law do not allow ordinary citizens to hide confidential information from a grand jury, then special treatment cannot be given to journalists.
The informant requested anonymity precisely to hide his crimes and avoid legal punishment. So how can the law allow journalists and informants to be pardoned?
However, Justice Douglas expressed a different opinion:
In my view, a newsman has an absolute right not to appear before a grand jury, it follows for me that a journalist who voluntarily appears before that body may invoke his First Amendment privilege to specific questions. The basic issue is the extent to which the First Amendment must yield to the Government's asserted need to know a reporter's unprinted information.
In his view, a reporter has the absolute right not to appear on a grand jury. On the one hand, the First Amendment protects freedom of speech and publication, but on the other hand, the government clearly needs to obtain information that a reporter has not published. Therefore, the essence of this case lies in the extent to which the First Amendment needs to give in to the needs of the government. .
Two principles which follow from this understanding of the First Amendment are at stake here. One is that the people, the ultimate governors, must have absolute freedom of, and therefore privacy of, their individual opinions and beliefs regardless of how suspect or strange they may appear to others. Ancillary to that principle is the conclusion that an individual must also have absolute privacy over whatever information he may generate in the course of testing his opinions and beliefs... The second principle is that effective self-government cannot succeed unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and reexamination.
The First Amendment implies two principles: First, the people, as the ultimate stewards, must have absolute freedom and absolute privacy over their opinions and beliefs, no matter how dubious or bizarre they may be. Individuals must therefore also have absolute privacy over the information that arises in the process of examining their own opinions and beliefs...Secondly, the self-governance of the people, if they are to be successful, must expose the people to widely and freely disseminated views and reports, and these views and reports can be continuously evaluated and tested.
And today's ruling will create obstacles to the free flow of information. Informants will no longer provide vital information, and journalists will be more cautious when writing.
As the years pass, the power of government becomes more and more pervasive. It is a power to suffocate both people and causes. Those in power, whatever their politics, want only to perpetuate it. Now that the fences of the law and the tradition that has protected the press are broken down, the people are the victims.
The power of the government has become more pervasive as time goes on. This power is hindering the people and the people's cause. Those in power, irrespective of party affiliation, just want the power to last forever; the walls protecting speech have collapsed; in the end, the people will suffer.
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