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Grand Juries' Power to Subpoena Outtakes That Reveal Confidential News Sources Marty Kassman

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Grand Juries' Power to Subpoena Outtakes That Reveal Confidential News Sources Marty Kassman Hastings Communications and Entertainment Law Journal Volume 10 | Number 2 Article 9 1-1-1987 Stone Got Caught between a Rock and a Hard Place: Grand Juries' Power to Subpoena Outtakes That Reveal Confidential News Sources Marty Kassman Follow this and additional works at: https://repository.uchastings.edu/ hastings_comm_ent_law_journal Part of the Communications Law Commons, Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Marty Kassman, Stone Got Caught between a Rock and a Hard Place: Grand Juries' Power to Subpoena Outtakes That Reveal Confidential News Sources, 10 Hastings Comm. & Ent. L.J. 623 (1987). Available at: https://repository.uchastings.edu/hastings_comm_ent_law_journal/vol10/iss2/9 This Note is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Communications and Entertainment Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Stone Got Caught Between a Rock and a Hard Place: Grand Juries' Power to Subpoena Outtakes That Reveal Confidential News Sources by MARTY KASSMAN* Introduction Bradley M. Stone is a Detroit television journalist who spent a few hours in the Wayne County (Michigan) Jail in Septem- ber, 1986. He was not on assignment; rather, he was sent there by a state judge for refusing to comply with the judge's order to turn over a short segment of videotape to a grand jury. Stone refused because the videotape might have revealed the identi- ties of confidential sources of information. Stone is no longer behind bars, and it now appears that he will be able to keep his videotape and avoid returning to jail.1 His case, however, raises questions of vital concern to journalists and to their viewers, listeners, readers and news sources. The purpose of this note is to examine what protection the United States Constitution affords to a journalist who is or- dered by a grand jury to provide unpublished information which would compromise confidential sources, particularly where, as in Stone's case, the journalist is not alleged to have participated in or witnessed criminal activity. The note will review the four opinions written in the key case on constitutional protection of news sources, Branzburg v. Hayes,2 and how those opinions have been received and inter- preted in the decade-and-one-half since they were released. It will discuss how the law of reporter's privilege3 has developed * B.S., Arkansas State University, 1982; Member, Third Year Class. The author was a television and radio journalist before entering law school. 1. For details of Stone's case, see infra notes 124-84 and accompanying text. 2. 408 U.S. 665 (1972). 3. The meaning of the term "reporter's privilege" in this note comports gener- ally with the definition of "newsman's privilege" in BLACK'S LAW DICTIONARY 940 (5th ed. 1979): "The alleged constitutional right (freedom of speech and press) of a newsman to refuse to disclose the sources of his information." "Reporter's privilege," HASTINGS COMM/ENT L. J. [Vol. 10:623 since Branzburg and, some say, in spite of Branzburg.4 Statu- tory and administrative privileges and their inadequacies will be mentioned briefly. The note will explore the Bradley Stone case in some detail by setting out the facts and judicial history, reviewing the arguments made by both sides, and summarizing the final judicial statement on the case, the 1987 opinion by the United States Court of Appeals for the Sixth Circuit.' Finally, the note will examine various opinions on whether or not jour- nalists should have a special privilege for protection of confi- dential sources and what the scope of such a privilege ought to be. I What Did Branzburg Actually Say? The Branzburg decision, on its face, certainly is detrimental to the interests of those who favor reporter's privilege.' The case's holdings were against the journalists, and there was an immediate outcry from news organizations.7 According to vari- ous commentators, however, Branzburg often has been misin- terpreted, ignored or incorrectly applied.8 The concurring as used here, also encompasses a similar right emanating from sources other than the Constitution. It is distinct from that dictionary's definition of "journalist's privilege," which concerns protection from defamation actions where malice is absent. Id. at 753. 4. See, e.g., D. PEMBER, MASS MEDIA LAW 300 (3d ed. 1984) [hereinafter D. PEMBER (3d ed.)] ("Despite this high Court ruling, the lower federal courts and state courts have fashioned a constitutional-common law privilege which often protects a journalist who has been subpoenaed to testify at a legal hearing."); Bulger, Reporter's Privilege by Rule of Court: New Approach Fails... or Does It, 19 SUFFOLK U.L. REV. 513, 534 (1985); Note, Circumventing Branzburg: Absolute Protectionfor Confiden- tial News Sources, 18 SUFFOLK U.L. REV. 615 (1984). 5. In re Grand Jury Proceedings (Storer Communications, Inc. v. Giovan), 810 F.2d 580 (6th Cir. 1987). 6. D. PEMBER, MASS MEDIA LAW 323 (4th ed. 1987): "The Branzburg decision [wasi initially a bitter blow to those persons who believed that the recognition of at least a limited reporter's privilege was essential to the free flow of information in the society .. " 7. See, e.g., Editors Declare Ruling on Newsmen Is 'a Blow to Right of People to Be Informed' N.Y. Times, June 30, 1972, at 15, col. 4. 8. See, e.g., sources cited supra note 4; Comment, The Newsperson 's Privilegein GrandJury Proceedings: An Argumentfor Uniform Recognition and Application, 75 J. CRIM. L. & CRIMINOLOGY 413, 427 (1984). The author of the Journalof Criminal Law and Criminology comment, unlike some other commentators, believes that Branzburg has been interpreted too strictly against journalists: "Courts have inter- preted Branzburg to preclude the use of the newsperson's privilege in grand jury pro- ceedings for a number of reasons. The primary reason is that courts have misapplied Branzburg's narrow holding." Id. The comment is further discussed infra notes 39-40 & 197-203 and accompanying text. 1988] OUTTAKES THAT REVEAL NEWS SOURCES opinion of Justice Powell and the dissenting opinions of Justice Stewart (joined by Justices Brennan and Marshall) and Justice Douglas have been treated by some courts as establishing, by a five-to-four majority, some protection for journalists from re- vealing confidential sources.9 It is therefore essential to a dis- cussion of reporter's privilege that Branzburg be carefully analyzed. A. The Four Cases Decided in Branzburg Branzburg actually was a consolidation of four cases, two of which - Branzburg v. Hayes and Branzburg v. Meigs - in- volved Paul Branzburg, a staff reporter for the Louisville Cou- rier-Journal,a daily newspaper. 10 In Hayes, Branzburg had written a story describing his obser- vation of two people, whose identities he had promised not to reveal, synthesizing hashish from marijuana. 1 Branzburg was subpoenaed by a grand jury; he appeared, but he refused to identify his subjects, asserting privileges under the first amend- ment to the United States Constitution, several provisions of the Kentucky Constitution, and the Kentucky reporter's privi- lege statute.12 Kentucky courts rejected his arguments and or- dered him to answer the grand jury's questions. 13 The Meigs case involved a later article in which Branzburg described the "drug scene" in Frankfort, Kentucky through conversations with and observations of unnamed drug users.' 4 9. D. PEMBER (3d ed.), supra note 4, at 291. 10. Branzburg, 408 U.S. at 667; N.Y. Times, June 30, 1972, at 15, col. 1. Branzburg also was a Harvard Law School graduate. Id. 11. Branzburg, 408 U.S. at 667-68. 12. Id. at 668. The statute is the same today as it was when Branzburg's cases arose. It reads: No person shall be compelled to disclose in any legal proceeding or trial before any court, or before any grand jury or petit jury, or before the presid- ing officer of any tribunal, or his agent or agents, or before the general as- sembly, or any committee thereof, or before any city or county legislative body, or any committee thereof, or elsewhere, the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected. Ky. REV. STAT. ANN. § 421.100 (Michie/Bobbs-Merrill 1972). 13. Branzburg, 408 U.S. at 668-69; Branzburg v. Pound, 461 S.W.2d 345 (Ky. 1971). The Kentucky Court of Appeals, the state's highest court at the time, held that the statute did not allow a reporter to refuse to testify about events he had witnessed or people who participated in those events. The court drew a distinction between that and refusing to divulge the identity of an informant. 461 S.W.2d at 347-48. 14. 408 U.S. at 669. HASTINGS COMM/ENT L. J. [Vol. 10:623 A grand jury subpoenaed Branzburg to testify about violations of statutes prohibiting drug use and sale.15 This time, rather than appear voluntarily, Branzburg moved to quash the sub- poena, now arguing that his effectiveness in reporting on the drug culture would be "totally destroyed" merely by his being "required to go behind the closed doors of the Grand Jury room," even if he were not required to say anything.16 Ken- tucky courts again rejected his arguments. 7 Another of the four cases, In re Pappas,concerned Paul Pap- pas, a television reporter
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