• 
• Some highlights from this interview
• Does revealing sources really have a chilling effect on journalism?
• Why Goodale's interpretation of Branzburg was less than revolutionary
• Why the reporters in the BALCO investigation should testify

In his first Supreme Court oral argument, Reynolds represented the government in Branzburg v. Hayes. He argued against the existence of a Constitutional reporter's privilege that would provide immunity from testifying before a grand jury -- a position the Court upheld in its opinion. He went on to serve as assistant attorney general for civil rights during the Reagan administration before moving into private practice. This is the edited transcript of an interview conducted on Sept. 7, 2006.

How did you feel personally about [the reporter's privilege]? ...

... My own personal view is that the reporters are no different from those of us who are in society generally, and there are responsibilities and requirements out there that if subpoenaed, you have to go testify before a grand jury. It's hard for me to recognize why there should be an exception for a reporter if there's not an exception for anybody else.

We all have free press and free speech rights. I am entitled to write what I want to write and speak what I want to speak under the Constitution, but it doesn't give me a testimonial privilege that excuses me from testifying if I witness crimes or am involved in crimes or I'm associated with somebody who is involved in crimes. So it's difficult for me to accept that a testimonial privilege should be fashioned for those who are in the press that excuses them from an obligation that everybody in the country has.

So what do you say to reporters who argue ... how do you actually go out, do investigations, and promise somebody who's come forward confidentiality if you know ultimately you have a very high risk of going in front of a grand jury? ...

… I gather the reporter's mantra is: It's the public's right to know. I believe the public probably has a right to know about criminal activity, but I'm not so sure that if it's the public's right to know that, it isn't the grand jury's right to know that.

The lines that are drawn are very self-serving. Reporters can go out and report on whatever they want to report, and I think that if they feel as a matter of principle that they should stand firm on their confidential sources, they should do that, but they should also do it knowing what the consequences are. The consequences are likely that they will be held in contempt and be sent to jail or whatever the court response is. That doesn't mean they can't do it. We're not talking about prior restraint on the press. We're not talking about telling the press they can't report. We're not telling the press they can't do their job, if that's what they feel their job is. But there are consequences. …

So let me just play devil's advocate. ... For someone like yourself, you're not going to actually go to jail and lose your job at the same time. In other words, if you witness something and you decided, "I'm not going to go in front of a grand jury," that's a personal decision you're making. As a reporter, that's your whole livelihood. ...

Why is that? If I go to jail as a private citizen for making the same decision, I can't do my job. I'm sitting in the slammer just like the reporter is. I'm not able to do my job as long as I'm in jail; neither is he. His decision, as I understand it, is I can do my job better if I go to jail, because my sources will believe that if I tell them that I will maintain confidences, I will maintain them. So in that instance, it is serving his career-path interest not to disclose, much more probably than in my instance if I'm a private citizen. ...

... But someone like [New York Times reporter] Earl Caldwell and [Times counsel] James Goodale, when I asked them these questions -- and actually including [attorney] Floyd Abrams as well -- they all gave me this argument, which was, reporters cannot be, in their mind, ... another arm of the government, of prosecuting criminals. What do you say to that argument? ...

Well, I think law enforcement at both the state and the federal level have recognized that it would be imprudent and inappropriate to use the press as an investigative arm of government, and there are Department of Justice guidelines at the federal level that say that that should not be done and that the U.S. attorneys should not do that. ... At the state level, there are any number of shield laws and other state justice rules that say you're not [to] use the press as an investigative arm of government.

“I think that the public has a right to know. I also believe that if the reporter knows the identity of somebody who's committed a crime, the public has a right to know that just as much.”

But to overstate that and say that that, therefore, is a reason to say we never shall be called to account is really to misuse the reporter's prerogative in that regard. I think that the public has a right to know. I also believe that if the reporter knows the identity of somebody who's committed a crime, the public has a right to know that just as much. ... I don't see that the First Amendment freedom of the press provides the reporter with the ability to make that kind of personal judgment as to which of those pieces of information is more important for the public to know. ...

... If I was to report on something that happened ... but not disclose the name one time, and then I was asked to go in front of the grand jury and I disclose that person's name, the next time I go out there to report on something, there's no way I'm going to get anybody to tell me anything. It is that sort of classic chilling effect. What would you say to that?

... It may be the case that if a reporter is forced to go behind the closed door of a grand jury and disclose a source who has been engaged in the criminal conduct he reported on that that will have some kind of a chill or adverse impact on his ability to get similar kind of stories in the future. That may be.

My first view is I'm not sure how chilling the chill is. We hear a lot about it. There's no empirical evidence that backs it up ... The chill that they're worried about is a chill that on balance is one we collectively, we as a society, can withstand and should withstand, because it's overridden by the interest of having the public and everybody else know who committed the crime.

... No matter how enthusiastic reporters are to report this kind of stuff, there are obligations and laws in this country that say if you know about criminal conduct and you cover it up and you don't disclose it, that can be a felony. So if the principle that they're standing on is "It dries up my sources," or "It chills my ability to do my job as effectively," I don't begrudge them from standing on that principle, but I think that there's on the other side another principle that is equally important, which is if there's criminal conduct out there that you or I or anybody else knows about, you darn well ought to get that information to the people who are in charge of law enforcement so we have a safe and lawful society.

... Let's just go back to Branzburg for a minute. ... Help me understand it a little bit better.

In Branzburg, actually, it was a case that came out of Kentucky, and it was a reporter [Paul Branzburg of the Louisville Courier-Journal] who had witnessed some people who were doing drugs, basically producing and manufacturing drugs. I think [he had a] picture ... of their hands, and the question was, what's their identity? ... The real issue in the case was whether this reporter had to disclose in the grand jury where this happened, what was actually going on. He was not asked to disclose the identity of the people who were involved, because the shield law in Kentucky said if you witness a crime, as a reporter, you have to disclose what you witness, but you are shielded from divulging confidential sources if the source that you're dealing with asks to remain anonymous.

There's a technicality, because here he witnessed people who were committing the unlawful acts. If he saw the people, he could tell who he saw, as opposed to if he had an informant who came to him from afar. But the point is that the case really did involve a reporter who had witnessed a felony and had witnessed the people who were engaging in the felony. The Court was pretty clear in Branzburg that there is no testimonial privilege for a reporter who witnesses a crime and knows the identity of the person who's committing the crime at the time. There's no testimonial privilege that says you don't have to tell the grand jury the crime and identify the individual.

I know that it was named the Branzburg case, but a lot of the attention comes to Earl Caldwell. Can you talk to me a little bit about that? I know you argued the Branzburg section. But ... was it a similar situation in which it was believed that Caldwell had actually witnessed a crime as well?

Yeah, actually the Caldwell case was very similar. There was no question who Caldwell met with. He had been invited into the Black Panthers' meeting hall, and everybody knew he was there at the time, and they knew who else was there at the time. The real question in Caldwell was what did he hear, what did he see. And the grand jury was investigating crimes that related to threats on the president and those kinds of activities.

The reporter in Caldwell was not really asked to disclose sources. He was asked to go to the grand jury to testify as to what he heard and saw in the meeting room. ...

The Caldwell case most directly presented the constitutional issue, which is why I think Caldwell gets discussed a lot more than Branzburg or [television reporter Paul] Pappas, [the third journalist involved in the case ultimately called Branzburg v. Hayes]. …

The Caldwell case came to the Court because the 9th Circuit had said that the First Amendment gives to the reporter an absolute privilege. The question that was before the Court is whether the freedom-of-press right was a sufficient protection that would allow for the reporter to say no when called before a grand jury to testify, because of the chilling effect that would have on his sources. The reporter's claim was: "The only reason I was allowed in the backroom with the Black Panthers to witness what was going on is that I promised them that I would say nothing about what I heard. To the extent I would report, I would report on that which the public could observe just like I could observe." It presented the issue of whether the First Amendment freedom of the press gave to the reporters a privilege against testifying about confidential sources in a grand jury proceeding. ...

You said at the time it was a pretty celebrated case. Why? What was going on in the country at the time?

... My impression is that it was a celebrated case because it involved the media and reporters, and they made it celebrated. I'm not so sure there was any more to it than that. I think the press saw this as a watershed case, and they made much of the fact that if indeed Branzburg is decided in a way that says you have to testify, that the chill on the press would be extraordinary and that it would overnight dry up a lot of sources. ... It was not the kind of issue where people are marching in the streets or getting overly excited in that sense about it. ...

So the 9th Circuit ruled in favor of Caldwell, granting absolute privilege when it came to this sort of situation. When you were about to argue in front of the Court, were you concerned that you wouldn't win? Did you think you had a good chance of winning? ...

Well, I'd never argued before the Court and thought I had a good chance of winning, so it was a close issue. There is certainly a reasoned argument on the side of the press for saying that there ought to be some consideration given to some kind of a testimonial privilege, and I think that that argument resonated with Justice [Lewis] Powell in his concurring opinion, where he basically said, look, there's no absolute privilege, but the courts have a supervisory responsibility over grand juries, and they ought to make sure that using the press as an investigative arm of the government -- to go back to something you had asked me earlier -- is not abused; that they ought to ensure that if the reporters are going to be called to testify and disclose confidential sources, it ought to be related to criminal conduct, and the source ought to be connected with the conduct, and the crime ought to be something that's central to the investigation that the grand jury is talking about.

There is much in Justice [Byron] White's majority opinion that echoes that. I don't think Powell was way out of line in doing that as a concurrence. I think it's been maybe overread. But I believe that that was recognized by Justice White in his opinion, and that's what Justice Powell said. Then Justice [Potter] Stewart said it, but he put a little more weight on the balance that should favor the First Amendment. ...

So the Court had what you would hope. It had both sides putting forth the serious argument and putting it forth in a serious and considerate way. Then there were a large number of amicus briefs -- friend-of-the-court briefs -- that were filed. It's fair to say that there wasn't much that was either not considered or ill-considered in Branzburg. It was fully ventilated. The issue was given to the Court in all its variations and permutations, and the Court treated it as such and gave a serious decision on the issue. It's for that reason that I'm not sure that there's a whole lot of interest in the Court to revisit Branzburg. ...

What's the bottom line of Branzburg? ...

Branzburg answered the question is there a constitutional protection here for reporters? And it said, no, there is not. ... Branzburg said there's no testimonial privilege under the First Amendment, freedom of press, that protects reporters from going before a grand jury and giving testimony, even if it means disclosing confidences, certainly with respect to matters that directly involve criminal conduct that is under investigation by that grand jury. ... There is no testimonial privilege that is available to the reporters that protects them from testifying anymore than there is one that would protect me as a private citizen from testifying.

... When you heard the rulings, how did you feel? Were you happy? ...

... The thing that I remember most is that I was impressed with Justice White's opinion. It was thorough, it was comprehensive, and it did a very good job at discussing the varying underlying policy considerations that were in play. I'm not sure that I had fully expected to see that full a dissertation in the opinion, so my view was that he had done a very careful job.

Other than that, yeah, we were pleased. I don't know that we were dancing on the ceiling, but we were pleased, as I think always is the case when you prevail in the Supreme Court. ...

We interviewed James Goodale, and what he told me was he found out what the ruling was, and he decided he couldn't live with the idea that reporters weren't going to have a privilege, so he went, spent a weekend alone, read all the opinions, looked at Powell very carefully. In Powell he saw [an] opening [as] to ... how Branzburg actually created a reporter's privilege.... What do you think of how he sort of spun Branzburg? ...

… I don't find that surprising, nor do I find anything disingenuous or improper about that. That's the way lawyers tend to operate. I do believe that whatever silver lining he found, it was a pretty slender one, and it has not evolved into anything that would, I think, suggest a reporter's privilege of the sort that reporters hoped they would have or would like to have.

I believe it is the case that the decision itself made it clear that the government should not use the reporters in the investigative arm and should not abuse their ability to call reporters before a grand jury. I believe it made it clear that these are issues, when they come up, that are going to be taken seriously. I don't think anybody doubts for a second that reporters who say they don't want to testify are standing on principle. It's a principle that they hold dear and believe in vehemently. And I believe that because of that, and because of that recognition, that the courts generally, who are in charge of supervising grand jury investigations, do take a serious look when there is an issue that comes before the Court of this nature. ...

... To the extent [Goodale's interpretation of Branzburg] had an impact on the legal horizon, some lower courts -- not many -- but some lower courts, I think, expressed the view that reporters may have a privilege in certain circumstances. I think Judge [Richard] Posner in the 7th Circuit treated with that pretty squarely and said that was a misreading of Branzburg. I don't know where the general sense of the media is after the Posner decision.

There is a sort of 30-year period where across the country many judges agreed, it seemed, with Goodale's interpretation that reporters did pretty much have a privilege in most cases, except in very extreme cases. And actually, when we looked at reporters being subpoenaed during that 30-year period, it was ... really hard to find reporters who have been subpoenaed. Since the Posner ruling, ... there's an increase in the number of people subpoenaed. Now, it could just be a coincidence, or it could be that Posner really did have an impact. ... Can you just comment on that?

... I suspect that that phenomenon is more something where you should look to the executive branch rather than the judicial branch. It may well be that the politics of the issue and the administration that was responsible for law enforcement took a more relaxed view about subpoenaing reporters during that period of time, and then with the Court having come in and saying it's permissible to do it, decided that it was going to assert itself into that area more. ...

... Why is it important that Branzburg exists if there are 49 states that have shield laws? Why does it matter?

Well, Branzburg is a decision that essentially speaks at the federal level, so whatever shield laws there are at these various state systems that relate to state prosecutions would not apply to a federal prosecution. If Congress had enacted a federal shield law, then that would essentially say, notwithstanding Branzburg, there's ability for reporters to get protection in the federal system. But Congress hasn't done that. ...

What do you think about the federal shield law? ...

... A federal shield law will be a tough sell, I believe, in Congress. ... It would probably have less protection than the wholesale protection that was being sought in Branzburg. But it would not be inconceivable to me if Congress were to enact something like that.

What do I think about it? I'm not sure. I think that it would be something that I would be less comfortable with if it gave the reporters a privilege that said you don't need to testify about a crime that you witnessed, or you don't need to identify a criminal that you ... personally saw committing a crime, because there are laws on the books that ... say it's unlawful if you have knowledge of a crime not to come forward and disclose that. A shield law that sort of went all the way would trump that law for reporters, and I'm not sure why that is a good thing. ... But it strikes me that it could happen, but it would not be wholesale, and to that extent there may be some merit to it, depending on how it's worded.

So in something like the BALCO [Bay Area Laboratory Co-Operative steroids] case, can you just explain to me, taking Branzburg into consideration, what are the reporters up against?

My own view is BALCO would be a case that the reporters probably would have a hard time with in the Supreme Court under the Branzburg precedent. As I understand BALCO, the issue is presented in terms of these two fellows who wrote a book, and the information in the book comes from leaked information that came out of the grand jury. The real issue in BALCO is who inside the grand jury room leaked the information.

Now, there is the sanctity of the grand jury and secret testimony, and it's unlawful to leak grand jury testimony. So you're asking the two reporters to identify whoever it is that committed a crime by leaking secret testimony, and in doing so, who essentially interfered with the integrity of the grand jury system. That's one of those instances where I think if the public has a right to know the testimony that the reporters told us about, they have every bit as much right to know who it is that leaked that, who violated the law.

Why?

Because the reporter's drawing artificial lines. They say it's important for the public to know the criminal conduct, but it's not important for the public to know a criminal. I'm not sure why one is more important for the public to know than the other if there is an importance. That kind of line drawing raises some questions about this principle that they're standing on.

But if you put that aside, I also believe that it was clear in Branzburg, not only in Justice White's majority opinion and in Justice Powell's concurring opinion but also in Potter Stewart's dissent, that a reporter who knows the identity of somebody who committed a crime, that in that circumstance the law enforcement interests in finding out that information behind the closed door of a grand jury room trumps whatever privilege the reporter is trying to assert. I think that was pretty clear in all but Justice [William O.] Douglas' dissent, which suggests to me that if one wants to bring a case to the Supreme Court to test Branzburg, this might not be the best candidate. ...

I think these fellows who wrote the book can certainly stand on that principle if that's the principle that they want to stand on, but they ought to understand that there are consequences that go with that and that they will have to pay the price. ... I don't think it's as important a case on this issue as some others.

OK. Like what?

Well, I think that the [New York Times reporter] Judith Miller case, if that had been pressed, would have presented the issue in a more murky kind of a context [than the BALCO case], because there it's quite clear no crime was committed. It was the identity of a source who was giving information, but it wasn't criminal to give that information. So the question is, is it necessary to haul the reporter in to disclose the identity of a confidential source where it's not leading to any kind of crime or criminal conduct that the grand jury's interested in? That's where I think Powell says you ought to look at it more carefully, and certainly Justice Potter Stewart in his dissent said that would be something where the balance might tip in favor of the reporter. That would have been an issue where it struck me that if you were going to test Branzburg, you might want to do it through that kind of a case rather than come in through the BALCO case. …