Hypothetical Cases

  1. The Branzburg case’s precedent did “close off” constitutional protection for journalists claiming a First Amendment-provided shield, but only to a certain extent. It did not mean that all constitutional protection has been taken away. The U.S. Supreme Court, in ruling on the Branzburg case, said that the First Amendment is not a valid defense (does not provide a privilege) for reporters subpoenaed to testify before a grand jury. But lower federal courts and state courts do allow a qualified / common-law privilege that does allow – albeit under certain circumstances – some degree of protection under the First Amendment. Generally, the courts will be most likely to acknowledge a reporter’s right to refuse to testify in a civil case. The Branzburg case ruled that this privilege does not extend to grand jury proceedings.


  2. In discussing the Supreme Court review of Branzburg (actually three similar cases consolidated into one), the textbook quotes Justice Byron White, who wrote the Court’s majority opinion. It reads, in part, “The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and answer questions relevant to an investigation into the commission of crime … neither the First Amendment nor other constitutional provisions protect the average citizen from the disclosing to a grand jury information that he has received in confidence.”

    Essentially, Pankratz was given information that Ozer was legally forbidden to disclose, and so Pankratz was a witness to a crime. An “agreement of confidentiality” (a use of the shield law) is not valid when a crime has been committed. Given the circumstances, Ozer’s actions undermined the principles behind the fundamental right to a fair trial and due process, and the First Amendment cannot override this right. In Branzburg v. Hayes, Justice Stewart outlined the three requirements the government should prove to force a reporter to testify, and Pankratz’ knowledge certainly meets all three. And, again, the limited rights to refuse to testify do not apply when such refusal involves knowledge of a crime.


  3. The newspaper’s challenge was probably not successful. Nondisclosure of a state’s income tax records would likely be supported by Exemption 3, the Statutory Exemption, of the Freedom of Information Act. The textbook states that some examples of the records covered by Exemption 3 are “public utility information, trade secrets, patent applications, tax returns [and] bank records,” among others.

    The text also states that courts look for three criteria to be met when determining if Exemption 3 applies to content in question: (1) A statute allows/requires withholding of information; (2) Said statute designates specific kinds of information or outlines specific criteria for what may be withheld; and (3) The information requested falls within the categories of what may be withheld.
    The statute in question seems to meet the criteria; ergo, disclosure can be denied.


  4. In the most generalized sense, the newspaper would probably claim the rights and provisions as provided by a freedom-of-information act, which is a type of government-in-the-sunshine law. But more specifically, the newspaper might examine and then cite the state’s open-records law. It is not completely clarified what type of records regarding “sanitation law violators” are in question (e.g., whether these were records from court cases, or records of another nature), but as the question is given the qualifier that “no law forbidding the clerk to open the records existed,” it seems reasonable to assume that none of the records in question are closed or otherwise exempt from disclosure.
    (Also, at the risk of overgeneralizing myself out onto a limb, reporters do have some degree of freedom in what they may report on—the clerk’s claim that opening the records would “not be in the public interest” may well be moot.)


  5. Part of the key to understanding the federal district court’s reasoning is in the fact that the FERC’s investigation (of Tenneco Co. and others) was ongoing. This suggests that an investigation was underway, and so at that point, charges had not been brought. An individual, corporation or any other entity cannot possibly have the right to know what investigations are underway or what potential charges may be brought, as such prior knowledge would allow them the possibility to change or delete records or otherwise tamper with facts or evidence that might be used against them. This is why “the courts are generally willing to grant the government a wide latitude” in proving that records are eligible for exemption.

    (Once litigation / prosecution has begun, however, the defendant has some right to disclosure / knowledge of the charges so that he can have the opportunity to defend himself against the charges.)