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EARL CALDWELL
On June 15, 1969, the New York Times carried a story headlined “Black Panthers Serving Youngsters a Diet of Food and Politics.” It was an inside view of the Black Panther Party’s free breakfast program, and of its revolutionary indoctrination of African American young people in the San Francisco Bay Area. It was full of authentic detail, including the children’s repeating after a Panther leader: “I am a revolutionary; I love Huey P. Newton; I love Eldridge Cleaver; I love Bobby Seale; I love being a revolutionary; I feel good; off the pigs; power to the people.” An observer was quoted as remarking, “Say anything you want, but there is one unmistakable fact: Black Panthers are feeding more kids every day than anyone else in the whole state of California.”
The article was written by Earl Caldwell. It was one of at least 16 Times articles Caldwell wrote that year on the Black Panthers. The Times had hired Caldwell, an African American, because its white reporters had been unable to get access to the Panthers or establish any rapport with them. The Panthers paid no attention to press credentials or customary reporter-source practices. Caldwell was basically the Times emissary to the black radical movement. He had covered riots in several American cities in 1967 and 1968. He was the only reporter actually present at the assassination of Martin Luther King Jr. in Memphis and wrote the Times’s front-page story on it. Caldwell developed relationships with Panther sources and was the only reporter in the Times organization able to do so.
Caldwell reported on the Panthers virtually from the inception of the party in 1966, and his illuminating stories contributed markedly to the public’s understanding of the Panthers. In addition to observing Panther activities firsthand, he was able to get revealing on-the-record quotes from Panthers. One story, for example, in the Times on September 6, 1968, quoted a Panther about how the police control the black community with force: “Their power is on their hips. Take those guns away from those pigs and they are nobodies. The only way to counteract this power is with a gun in your hand.” When asked what white sympathizers could do, the Panther responded, “Give us some money and give us some guns.”
Attorney General John Mitchell determined that the Black Panther Party was a “threat to national security,” and FBI Director J. Edgar Hoover testified before a House committee that the FBI was intensifying its efforts to penetrate the Panthers by informants. In the few days from December 23, 1969, to January 12, 1970, FBI agents visited Caldwell six times and attempted to interview him. They wanted to set up regular meetings with him. He refused, knowing that if the Panthers learned that he had any conversation whatever with the FBI, he would lose all access to them. One day, Caldwell recalled later in a Frontline interview, an agent left a message at his office: “Tell Earl Caldwell we’re not playing with him. He doesn’t want to tell it to us, he doesn’t want to talk to us, he can tell it in court.” The following Monday, they came back with a subpoena for him to appear before a federal grand jury, and they wanted all of his notebooks, tape recordings, and anything else he had accumulated over a period of about 16 months of reporting on the Black Panthers. Caldwell noted that the subpoena “didn’t mention the New York Times at all. It was just Earl Caldwell, the reporter. Very vulnerable.”
Caldwell was afraid even to go to the federal courthouse in San Francisco and appear before the grand jury, much less testify. He was certain that doing so would make it impossible to continue reporting on the Panthers and other dissident groups. Grand jury proceedings are secret, attended only by the prosecutor and the jurors themselves, and outsiders have no way to know whether a witness cooperated, or what he said. Caldwell had to fight the subpoena. Through black journalist friends, he was able to arrange a late-night meeting in Palo Alto with Professor Anthony Amsterdam, then at Stanford, who was a legendary figure in the legal civil rights movement. Amsterdam quickly sized up the situation and agreed to represent Caldwell. Amsterdam had a long relationship with the NAACP Legal Defense & Educational Fund, Inc., where I then worked, and I helped Amsterdam on Caldwell’s case.
On March 17, 1970, Caldwell moved to quash the subpoena. The motion alleged that “compelling Mr. Caldwell’s appearance before the grand jury will cause grave, widespread and irreparable injury to [First Amendment] freedoms of the press, of speech and of association; and this Court should not permit a use of its process that so jeopardizes vital constitutional interests in the absence of an overriding governmental interest—not shown here—in securing Mr. Caldwell’s testimony before the grand jury.” The motion was accompanied by an impressive collection of affidavits. Caldwell’s own stated: “If I am forced to appear in secret grand jury proceedings, my appearance alone would be interpreted by the Black Panthers and other dissident groups as a possible disclosure of confidences and trust and would similarly destroy my effectiveness as a newspaper-man.” Backing this up were affidavits from journalism titans Walter Cronkite, Eric Sevareid, Mike Wallace, Dan Rather, and others. These testified to several basic points: that confidential communications to reporters are “indispensable” to gathering the news; that when reporters are subpoenaed, their confidential sources are terrified of disclosure and “shut up”; that the mere appearance of a reporter in secret grand jury proceedings, where what he says cannot be known, “destroys his credibility, ruptures his confidential associations,” and damages his ability to function professionally; and that subpoenas to reporters end up “critically impairing the news-gathering capacities of the media and impoverishing the fund of public information and understanding.” Cronkite, for example, testified by affidavit that he depended “constantly on information, ideas, leads, and opinions received in confidence.” He further stated, “Such material is essential in digging out newsworthy facts and, equally important, in assessing the importance and analyzing the significance of public events. Without such materials, I would be able to do little more than broadcast press releases and public statements.”
Caldwell’s motion did not claim that he had an absolute right to avoid appearing before the grand jury. Rather, it contended that he could not be forced to appear unless and until the government had shown that he in fact had information relevant to a crime being investigated by the grand jury, that the information was not available from other sources, and that the need for the information outweighed the damage to his ability to function as a reporter. As a precaution, Caldwell put some notes and other materials, including materials about the King assassination, in an old plastic airline flight bag and brought it to our Legal Defense Fund office, where the materials would be better insulated from government demands.
Federal district judge Alfonso Zirpoli (one of the lower court judges who invalidated the prison censorship rules in Procunier v. Martinez in Chapter 4, and ordinarily a First Amendment hero) tried to split the baby. He refused to quash the subpoena. He required Caldwell to appear before the grand jury, but he granted a protective order saying that Caldwell “need not reveal confidential associations” that impinge on his ability to gather news until “a compelling and overriding national interest” was established by the government.
Caldwell rejected Judge Zirpoli’s attempted compromise and refused to appear before the grand jury. He went to the judge’s courtroom, repeated his refusal before the judge, and restated his constitutional objections. The court overruled the objections and held Caldwell in contempt. Judge Zirpoli stayed his contempt order, permitting Caldwell to appeal. The Ninth Circuit Court of Appeals went further than Judge Zirpoli had been willing to go. Agreeing with us that Caldwell should not have to appear unless the government had shown a compelling need, it vacated the contempt order. The Nixon administration Justice Department took the case to the Supreme Court.
The years leading up to and around Watergate saw a noticeable increase in investigative reporting. Journalists did not simply attend public events and summarize government or corporate reports but began to dig into places, documents, and conversations that otherwise would remain secret. When “Deep Throat” whispered to Woodward and Bernstein secrets about the Nixon administration and the activities that sent John Mitchell and many others to jail, he did so under assurances of confidentiality: that his name would not be disclosed by the reporters or the Washington Post. Reporters around the country learned to say to reluctant sources, “Don’t worry, we won’t use your name, and we’ll never disclose who told us this.” Sometimes that was necessary to persuade the source to tell what he knew, and without the promise of confidentiality, the information would not become public.
In Louisville, Kentucky, Paul Branzburg, a reporter for the Louisville Courier-Journal, wrote revealing stories about a marijuana and hashish ring. He was subpoenaed to a grand jury to testify about the crimes he saw and heard. Branzburg appeared but refused to testify and was held in contempt. In Massachusetts, Paul Pappas, a television reporter covering civil disorders in New Bedford, was allowed into the local Black Panther Party headquarters for an anticipated police raid in return for his promise not to disclose anything he observed except the raid, which didn’t materialize. Pappas didn’t write any story, but the authorities apparently learned of his Panthers connection and he was subpoenaed to a grand jury. He refused to answer questions and was held in contempt. The Branzburg and Pappas cases went to the Supreme Court about the same time as Caldwell’s case.
The Supreme Court consolidated all three cases, heard argument, and decided them together under the name of Branzburg v. Hayes, in 1972. It was the first time—and the only time—that the Court decided whether reporters have a First Amendment right not to disclose confidential sources and information. While battles continue to rage over reporters’ “shield” issues (protecting confidential source material from compelled government inquiry), and journalists such as former New York Times reporter Judith Miller have gone to jail, the Court has not revisited the question.
Lurking in the background of the Caldwell case and any other reporter’s shield case are two larger First Amendment questions that are well worth pondering: whether reporters should have rights that ordinary citizens do not have, and whether the explicit mention of “the press” in the First Amendment, singling it out for protection in addition to the freedom of “speech,” means anything.
Ordinary citizens—you and I—who are served with grand jury subpoenas do not have any “privilege” not to appear and testify to what we have seen or heard. The assumption of our system is that a grand jury investigating crime is entitled to everyone’s testimony. To be sure, well-recognized evidentiary privileges protect confidences between attorneys and clients, husbands and wives, and doctors and patients. And the Fifth Amendment protects against being compelled to give incriminating testimony about oneself. But the reporters in the Branzburg case were seeking a right that the rest of us do not have: the right not to be required to disclose information received in confidence from a news source. This assertion of “press exceptionalism” presents a difficult issue of public policy as well as a constitutional question never addressed before Branzburg.
The even broader question is whether the words “or of the press” in the First Amendment add anything of substance to the “freedom of speech.” The “press” is the only nongovernmental entity even mentioned in the Constitution. (The document has not a word about corporations, schools, political parties, or many other institutions basic to our society.) The question is whether this explicit recognition of the press confers on it rights beyond those protected for all of us by the free-speech clause, whether the press has some kind of preferred position under the First Amendment.
The decision in Earl Caldwell’s case dealt a severe blow to the notion that the press has any such preferred position. The opinion in Branzburg v. Hayes was written by Justice Byron White, no First Amendment hero. It was a squeaker of a decision, 5–4, ruling that reporters do not have a First Amendment right not to appear before a grand jury and testify about confidential sources or information.
Justice White began by acknowledging that the First Amendment must provide some protection for news gathering in addition to publication: “Without some protection for seeking out the news, freedom of the press could be eviscerated.” But he pointed out that the use of confidential sources was not forbidden, and the government was not attempting to force the press to publish its sources. Rather, White said, “The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do.” White went on to point out that the First Amendment does not invalidate every measure that might burden the press or make it more costly or difficult to report the news. For example, the press, like all businesses, must comply with laws of general applicability like the labor, minimum wage, and tax laws: news organizations have to bargain with unions, pay the minimum wage, and pay their taxes just as other businesses do, even though these laws impose burdens and handicap to some degree the ability to gather and publish the news.
As for Cronkite’s and other journalists’ contentions that sources would “dry up” if reporters could be forced to disclose them, White was skeptical to the point of cynicism. He was just not persuaded that this would happen. After all, he noted, no one had ever invoked a journalist’s privilege not to testify for 180 years of First Amendment history, yet the press had “flourished.” Nor did he think such a privilege would be good public policy: the needs of law enforcement to obtain all relevant testimony outweighed what he viewed as the speculative impact on a reporter’s news-gathering ability. Paul Branzburg had actually witnessed crimes, while Caldwell and Pappas had not, but the Court made nothing of that distinction.
Rejecting the idea of a reporter’s privilege, White also noted the practical problems that would have to be resolved if such a privilege were recognized, principally defining who would be permitted to claim the privilege. White said the “liberty of the press is the right of the lonely pamphleteer” as much as it is of “the large metropolitan publisher,” and that it is a “fundamental personal right” not confined to newspapers and periodicals. White said establishing some kind of reporter’s privilege is a task suited for a legislature, not the Court, and invited Congress and the states, if they believed journalists should have some protection, to enact laws defining who is protected and the scope of the protection.
Justice Lewis Powell provided the crucial fifth vote and wrote a brief concurring opinion straddling the fence. He said that if a subpoena “implicated confidential source relationships without a legitimate need of law enforcement,” a judge should quash the subpoena. He added that, on a case-by-case basis, the judge should seek the proper balance “between freedom of the press and the obligation of all citizens to give relevant testimony.”
Justice Potter Stewart dissented, complaining that the majority’s “crabbed view” of the First Amendment invited law enforcement to “annex the journalism profession as an investigative arm of government.” He argued that the right to publish news was unquestioned and that a “corollary” must be the right to gather news. So far, so good. Then he concluded: “The right to gather news implies, in turn, a right to a confidential relationship between a reporter and his sources.” But this conclusion—something of a logical leap—depends on accepting as fact Cronkite’s and other journalists’ testimony about the need to assure confidentiality and sources drying up without such assurance, and the majority was unwilling to give that testimony dispositive weight.
(To bolster his argument on the right to gather news, Stew-art quoted James Madison: “A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both.” Well said, but out of context; Madison was speaking about the need for education, not the press.)
In 1974, not long after participating in the Court’s Branzburg decision, Justice Stewart went up to Yale and gave a speech entitled “Or of the Press.” It was provocative. Stewart argued that the primary purpose of the press clause was to recognize what was essentially a fourth branch of government, the “established press,” that would provide “organized, expert scrutiny of government.” The press would be autonomous, independent, and an adversarial check on the three official branches. He argued that the press clause was thus a “structural” provision. Stewart contended that if freedom of the press protected only expression, it was redundant of the freedom of speech that we all have. Stewart stopped short of advocating any specific advantages his position conferred on the press. And he pointedly said the press clause does not operate as a “Freedom of Information Act,” requiring the government to give the press information it seeks.
Not everyone agrees with Stewart. Notably, Anthony Lewis, the New York Times columnist and First Amendment scholar, ridiculed Stewart’s speech. Lewis pointed out that the framers were as concerned about protecting books and pamphlets as they were about protecting newspapers. He also noted that the Supreme Court has never based a decision on the press clause. Even the great decisions protecting the press, such as the Pentagon Papers case, which protected against “prior restraints” (prepublication government censorship), and New York Times v. Sullivan, which protected against libel suits by public officials, did not rely on the press clause at all; and the Court’s reasoning in Sullivan was that we all have the right to criticize government. (In its 2010 Citizens United decision, the Court said, “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers.” On the other hand, the Court has never ruled that the press clause has no independent significance.)
Further, Lewis argued that giving the press special rights would be bad public policy. It would add to the public’s perception that the press is arrogant and unaccountable and lead to attempts to make it accountable (perhaps treating the press as a public utility, required to carry whatever communications people wanted published, or required to ensure publication not just of the editor’s choice of news and opinion but of views representative of the community). Finally, Lewis noted the difficulty of defining who is the press. Stewart referred vaguely to the “established” press. But why should freelancers, academic authors, and now bloggers be excluded? Traditionally, the “lonely pamphleteer” has been considered to have the same First Amendment rights as the editor of the New York Times. As Lewis noted, if the definition of the “press” is broadened to include communicators of all kinds, Stewart’s thesis enshrining the “established” press as a structurally protected entity loses its point. Lewis concluded that by adding the press clause, the only goal of the framers (whose true intent on this point will never be known, as there is precious little legislative history of it) must have been to ensure constitutional protection for the printed as well as the spoken word (hence “speech” and “press”).
My own view is that the framers, as evidenced in part by James Madison’s eloquent tribute to the press in his famous report on the Virginia Resolutions on the Sedition Act of 1798, meant the press to have some special status. Madison said, “To the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression.” He added that without the press stirring the citizenry against the British crown, we might still be colonies. I find it hard to believe that the framers wrote the press clause as just another way of protecting the same freedom of expression that we all have. Perhaps the framers singled out the press for special mention because printers and publishers in England and the colonies had more often been subjected to official restraints like licensing, censorship, and prosecutions for seditious libel.
This is an interesting theoretical debate, but its resolution in the real world has largely been limited to only two issues. One is the Branzburg-Caldwell issue, whether reporters, because they are reporters, have the right not to be forced to disclose confidential information. The other is whether reporters have a right of access to government places or information, a right not enjoyed by the general public. The general rule is that reporters have no right to go where other citizens have no right to go. For example, reporters are not exempt from trespass laws and are not allowed to enter private property even in hot pursuit of a major story. But denying press access to government facilities and documents means that the public will never receive some information about what their government is really up to (see Chapter 6). Without a First Amendment right of access, or a much beefed-up Freedom of Information Act, an administration as secretive as the last Bush administration can conceal a great deal of information that citizens in a democracy ought to have.
The disappointing decision in Earl Caldwell’s case was not the end of the story. The decision did not sit well with the “established press” or, indeed, with writers of all kinds. Many seized on what Justice Stewart called Justice Powell’s “enigmatic” opinion and invoked his reasoning to continue to urge courts to quash or limit subpoenas. They had some success in lower courts, especially in civil cases in which reporters were dragged into someone else’s litigation and asked to spill the beans about information obtained in confidence. They also had considerable success in convincing states to adopt “reporters’ shield” laws, either legislatively or by court decision. In California, for example, shortly after Branzburg, the Newspaper Publishers Association got the legislature to enact a strong law that prohibited holding a reporter (defined essentially as someone working for mainstream news media) in contempt for refusing to reveal not only confidential sources and information but also “any unpublished information” (i.e., any information that the reporter chose not to put in the story). A virtually identical provision was added by the voters to California’s state constitution in 1980. In all, 31 state legislatures have enacted shield laws and another 18 states have adopted similar protections by court decision, leaving only Wyoming without any protection for reporters.
But the Congress did not act. Without any federal protection, reporters like the Times’s Judith Miller landed in jail. Whatever one may think about her reporting on Iraq’s weaponry or her relationship with Scooter Libby, she went to jail solely because she refused to reveal communications with her source to the federal grand jury. Others, including the Times’s James Risen, who used confidential whistleblower sources to break the story of illegal wiretapping of United States citizens by the National Security Agency (NSA), were threatened with prosecution. Without a federal law, reporters are put in the uncomfortable position of being able to protect sources if they happen to be subpoenaed by a state grand jury but of having to burn the sources if it’s a federal grand jury; this leaves them unable to give their sources promises they can rely on.
Congress has finally drafted a bipartisan law, the Free Flow of Information Act, that would provide significant protection for reporters, probably including bloggers, historians, and book authors. President George W. Bush’s threatened veto previously stalled the bill, but President Obama cosponsored an earlier bill while he was still a senator and said during the presidential campaign that he favored its reporter protections. As of this writing, the bill has passed the House and is pending in the Senate. Surprisingly, the Obama administration weighed in with last-minute national security objections, but some bill seems likely to pass. Almost four decades have elapsed, but now perhaps Earl Caldwell’s position will be vindicated.
Having urged the necessity and urgency of obtaining Caldwell’s testimony about the Black Panther Party’s operations and plans, claiming that law enforcement needs clearly outweighed the fact that his ability to report on the Panthers would be destroyed, the government mysteriously seemed to lose interest in the case. After the case was remanded by the Supreme Court to Judge Zirpoli’s court, the government prosecutors allowed the grand jury term to expire without again attempting to require Caldwell to appear and testify. By then the Watergate story dominated the news, and the Justice Department apparently did not want to pick another fight with the press. Also, as Earl Caldwell later told me, by then most of the Panther leaders were either out of the country or “in the cemetery,” and the party he had covered “virtually didn’t exist anymore.” The government had successfully gotten the Supreme Court ruling it wanted, and it had put an end to Caldwell’s Panther reporting.
Some time after the decision, Caldwell called and asked if we still had the bag of his notes and materials that he had left with us for safekeeping. I retrieved the bag from the back of a closet, and he came and picked it up. The government never saw the materials and never got the testimony that it claimed was so essential. The Republic still stands.