The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.
Taricani’s principal substantive argument on appeal is that it violates the First Amendment to hold him in civil contempt for refusing to answer questions as to who leaked the taped material to him. When he refused to answer, the civil contempt citation followed. The First Amendment argument is an uphill one in light of the Supreme Court's Branzburg decision, but it has several facets and we take them in order.
In Branzburg, the Supreme Court flatly rejected any notion of a general-purpose reporter's privilege for confidential sources, whether by virtue of the First Amendment or of a newly hewn common law privilege. Id. 408 U.S. at 682, 690-91, 701. The Court stressed inter alia the importance of criminal investigations, the usual obligation of citizens to provide evidence, and the lack of proof that news-gathering required such a privilege. Id. at 685-707. Justice Powell, who wrote separately but joined in the majority opinion as the necessary fifth vote, also rejected any general-purpose privilege.
The three leading cases in this circuit require "heightened sensitivity" to First Amendment concerns and invite a "balancing" of considerations (at least in situations distinct from Branzburg). Cusumano, 162 F.3d 716-17; LaRouche, 841 F.2d at 1182-83; Bruno, 633 F.2d at 596-99. In substance, these cases suggest that the disclosure of a reporter's confidential sources may not be compelled unless directly relevant to a nonfrivolous claim or inquiry undertaken in good faith; and disclosure may be denied where the same information is readily available from a less
How far these constraints may be constitutional requirements (as opposed to prudential considerations) is unsettled; the Supreme Court twice rejected any automatic requirement that non-confidential sources be exhausted. Univ. of Pa. v. EEOC, 493 U.S. 182, 201 (1990); Branzburg, 408 U.S. at 701-02. In all events, in this case there is no doubt that the request to Taricani was for information highly relevant to a good faith criminal investigation; and, as already noted, that reasonable efforts were made to obtain the information elsewhere.
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