Chapter XI


Last updated : 22/01/01

CHAPTER XI

NEWSGATHERING

A. INTRODUCTION XI-2

Canadian Broadcasting Corp. v. A-G New Brunswick [Re R. v. Carson] XI-2

B. THE PRESS AND SECTION 8 XI-7

Canadian Broadcasting Corp. v. New Brunswick XI-7

Canadian Broadcasting Corp. v. Lessard XI-13

C. AMERICAN JURISPRUDENCE XI-22

Zurcher v. Stanford Daily XI-22

Branzburg v. Hayes XI-31

Pell v. Procunier XI-41

A. INTRODUCTION

Please refer to the brief discussion about freedom of the press under s.2(b) of the Charter in Chapter I, Volume I. The next chapters in these materials look at different aspects of press freedom under the Charter. The first deals with the newsgathering function. Although the two key Supreme Court of Canada decisions address the relationship between ss. 8 and 2(b), the chapter opens with excerpts from Justice La Forest's opinion in C.B.C. v. New Brunswick [Re: R. v. Carson], which discusses the status of importance of newsgathering under s.2(b). That decision, which raises a question of access to judicial proceedings, is also considered in Chapter XII. A sampling of First Amendment caselaw on these issues in included in this chapter.

Canadian Broadcasting Corp. v. A-G New Brunswick [Re R. v. Carson]

[1996] S.C.J. No. 38

La Forest J.

This appeal is brought by the Canadian Broadcasting Corporation ("CBC") from the judgment of the New Brunswick Court of Appeal dismissing an appeal from a decision of Landry J. who had refused to quash an order of Rice Prov. Ct. J. restricting public access to the courtroom...

pursuant to s. 486(1) of the Criminal Code [], which reads:

Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as the case may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the court room for all or part of the proceedings, he may so order.

The order mandated the exclusion of the public and the media from the courtroom during part of the sentencing proceedings of the respondent, Gerald Carson. A pre-existing non-identification order, made pursuant to s. 486(3) of the Code, was already in effect. The CBC now seeks a declaration that s. 486(1) is of no force or effect as infringing s. 2(b) of the [Charter] and cannot be justified under s. 1.... In the alternative, ... the CBC seeks a declaration that Rice Prov. Ct. J. exceeded his jurisdiction in making the exclusion order. If such a declaration is made, it further seeks an order quashing the exclusion order and a mandatory order granting access to the media and the public to a transcript of the proceedings held in camera.

I. Facts

The facts are straightforward. The respondent, Gerald Carson, a prominent Moncton resident, pleaded guilty to two charges of sexual assault, contrary to s. 271(1)(a) of the Code, and two charges of sexual interference, contrary to s.151 of the Code. On motion by Crown counsel, consented to by defence counsel, Rice Prov. Ct. J. ordered the exclusion of the public and the media, with the exception of the accused, the victims, their immediate families and a victim services coordinator, from those parts of the sentencing proceedings dealing with the specific acts committed by Carson. The exclusion order remained in effect for approximately 20 minutes. The order was sought on the basis of the nature of the evidence, which the court had not yet heard, and which purportedly established that the offence was of a "very delicate" nature. Crown counsel further pointed to the fact that the case involved young, female persons.

André Veniot, a CBC reporter, was excluded from the court along with the other members of the media and the public. Shortly after the public had been invited to re-attend the proceedings, a lawyer retained by Veniot was granted permission to address the court. She requested that Rice Prov. Ct. J. give reasons for making the exclusion order. In maintaining his order, Rice Prov. Ct. J. stated that it had been rendered in the interests of the proper administration of justice; it would avoid undue hardship to the victims and the accused.

II. Judicial History [omitted]

III. Issues

The CBC then sought and was granted leave to appeal to this Court. Two major issues arise in this appeal. The first relates to the constitutionality of s. 486(1) of the Code.... The second issue is whether Rice Prov. Ct. J. exceeded his jurisdiction in making the order excluding members of the

media and the public from a part of the sentencing proceedings, thereby committing reversible error....

IV. The Constitutional Issue

A. Section 2(b) of the Charter

This appeal engages two essential issues in relation to s. 2(b). The first is integrally linked to the concept of representative democracy and the corresponding importance of public scrutiny of the criminal courts. It involves the scope of public entitlement to have access to these courts and to obtain information pertaining to court proceedings. Any such entitlement raises the further question: the extent to which protection is afforded to listeners in addition to speakers by freedom of expression. The second issue relates to the first, in so far as it recognizes that not all members of the public have the opportunity to attend court proceedings and will, therefore, rely on the media to inform them. Thus, the second issue is whether freedom of the press protects the gathering and dissemination of information about the courts by members of the media. In particular, it involves recognition of the integral role played by the media in the process of informing the public. Both of these issues invoke the democratic function of public criticism of the courts, which depends upon

an informed public; in turn, both relate to the principle of openness of the criminal courts.

The freedom of individuals to discuss information about the institutions of government, their policies and practices, is crucial to any notion of democratic rule. The liberty to criticize and express dissentient views has long been thought to be a safeguard against state tyranny and corruption. James Mill put it this way:

So true it is, however, that the discontent of the people is the only means of removing the defects of vicious governments, that the freedom of the press, the main instrument of creating discontent, is, in all civilized countries, among all but the advocates of misgovernment, regarded as an indispensable security, and the greatest safeguard of the interests of mankind. Liberty of the Press", in Essays on Government, Jurisprudence, Liberty of the Press, and Law of Nations (1825 (reprint ed. 1967)), at p. 18.)

This Court has had occasion to discuss the freedom to criticize encompassed in freedom of expression and its relation to the democratic process in Edmonton Journal v. Alberta (Attorney General), where Cory J. stated that it is difficult to think of a guaranteed right more important to a democratic society than freedom of expression....

It cannot be disputed that the courts, and particularly the criminal courts, play a critical role in any democracy. It is in this forum that the rights of the powerful state are tested against those of the individual. As noted by Cory J. in Edmonton Journal, courts represent the forum for the resolution of disputes between the citizens and the state, and so must be open to public scrutiny and to public criticism of their operations.

The concept of open courts is deeply embedded in the common law tradition. The principle was described in the early English case of Scott v. Scott, [1913] A.C. 419 (H.L.). A passage from the reasons given by Lord Shaw of Dunfermline is worthy of reproduction for its precise articulation of what underlies the principle. He stated at p. 477:

It moves Bentham over and over again. "In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice." "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial." "The security of securities is publicity." But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: "Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. f these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise."

The importance of ensuring that justice be done openly has not only survived: it has now become "one of the hallmarks of a democratic society"; see Re Southam Inc. and The Queen (No. 1) (1983), 41 O.R. (2d) 113 (C.A.), at p. 119. The open court principle, seen as "the very soul of justice" and the "security of securities", acts as a guarantee that justice is administered in a non-arbitrary manner, according to the rule of law. In Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, openness was held to be the rule, covertness the exception, thereby fostering public confidence in the integrity of the court system and understanding of the administration of justice.

The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings. While the freedom to express ideas and opinions about the operation of the courts is clearly within ...s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place. Cory J. in

Edmonton Journal described the equally important aspect of freedom of expression that protects listeners as well as speakers and ensures that this right to information about the courts is real and not illusory....

That the right of the public to information relating to court proceedings, and the corollary right to put forward opinions pertaining to the courts, depend on the freedom of the press to transmit this information is fundamental to an understanding of the importance of that freedom. The full and fair discussion of public institutions, which is vital to any democracy, is the raison d'être of the s. 2(b) guarantees. Debate in the public domain is predicated on an informed public, which is in turn reliant upon a free and vigorous press. The public's entitlement to be informed imposes on the media the responsibility to inform fairly and accurately. This responsibility is especially grave given that the freedom of the press is, and must be, largely unfettered. The significance of the freedom and its attendant responsibility lead me to the second issue relating to s. 2(b).

Essential to the freedom of the press to provide information to the public is the ability of the press to have access to this information. In Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421, I noted that freedom of the press not only encompassed the right to transmit news and

other information, but also the right to gather this information. At pp. 429-30, I stated:

[T]he freedom to disseminate information would be of little value if the freedom under s. 2(b) did not also encompass the right to gather news and other information without undue governmental interference. []

It is by ensuring the press access to the courts that it is enabled to comment on court proceedings and thus inform the public of what is transpiring in the courts. To this end, Cory J. stated in Canadian Broadcasting Corp. V. New Brunswick (Attorney General), [1991] 3 S.C.R. 459, at p. 475:

The media have a vitally important role to play in a democratic society. It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being.

From the foregoing, it is evident that s. 2(b) protects the freedom of the press to comment on the courts as an essential aspect of our democratic society. It thereby guarantees the further freedom of members of the public to develop and to put forward informed opinions about the courts.

As a vehicle through which information pertaining to these courts is transmitted, the press must be guaranteed access to the courts in order to gather information. As noted by Lamer J., as he then was, in Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, at p. 129: "Freedom of the press is indeed an important and essential attribute of a free and democratic society, and measures which prohibit the media from publishing information deemed of interest obviously

restrict that freedom." Similarly, it may be said that measures that prevent the media from gathering that information, and from disseminating it to the public, restrict the freedom of the press. To the extent that such measures prohibit public access to the courts and to information about the courts, they may also be said to restrict freedom of expression in so far as it encompasses the freedom of

listeners to obtain information that fosters public criticism of the courts.

At this point, however, I should like to make a number of caveats to the recognition of the importance of public access to the courts.... First of all, this recognition is not to be confused with, nor do I wish to be understood as affirming a right to be physically present in the courtroom.

Circumstances may produce a shortage of physical space, such that individual members of the media and the public may be denied physical access to the courts. In such circumstances, those excluded may have to rely on those present to relay information about the proceedings.

To this I would add a further caveat. I do not accept that the necessary consequence of recognizing the importance of public access to the courts is the recognition of public access to all facets of public institutions. The intervener, Attorney General for Saskatchewan argues that if an open court system is to be protected ... on the basis that the public has an entitlement to information about proceedings in the criminal courts, then all venues within which the criminal law is administered will have to be accessible to the public, including jury rooms, a trial judge's chambers and the conference rooms of appellate courts. ... Courts are and have, since time immemorial, been

public arenas. The same cannot be said of these other venues....

Furthermore, this Court has noted on previous occasions that public access to certain judicial processes would render the administration of justice unworkable []. The importance of ensuring that the administration of justice is not rendered unworkable provides a palpable reason for prohibiting public access to many of the other types of processes of which the intervener makes mention. Indeed, as we have seen in this case, the open court principle itself must yield to circumstances that would render the proper administration of justice unworkable.

B. THE PRESS AND SECTION 8

Canadian Broadcasting Corp. v. New Brunswick

[1991] 3 S.C.R. 459

Cory J. (Sopinka, Gonthier & Stevenson JJ., concurring)

This appeal is concerned with the factors that should be taken into account by a justice of the peace when determining whether to issue a warrant to search the premises of a media organization that is not implicated in the crime under investigation. ...

Factual Background

In early September of 1988, demonstrations were held in the Kedgewicks-St-Quentin regions of New Brunswick to protest the policies of the Fraser Co., a large pulp and paper concern. On September 10, during one of those protests, molotov cocktails were thrown at a company guardhouse, setting it on fire.

While the police had turned out in force during much of the demonstration, only a handful were present when the guardhouse was ignited. Among the remaining officers were identification specialists. As well, a number of police informers were circulating among the crowd to help identify any wrongdoers. As might be expected, members of the media were on the scene, including reporters of (the C.B.C.) who recorded much of the protest on videotape.

Officer Marcel Ouellette of (the RCMP) swore an information in support of an application for a search warrant to seize from the C.B.C. tapes, films and videocassettes. ... Officer Ouellette described the material to be seized as follows:

Tapes, and/or films and/or videocassettes and/or portions of films or videotapes commonly known as "outs" or "out-takes", the latter being portions of tape or videocassette from a lengthier film or videocassette and not subsequently used for transmission by the facility of Radio-Canada...

In his information, officer Ouellette explained that while other sources of information existed, they, for various reasons, either provided insufficient evidence or else were unavailable or unwilling to testify. [He further stated:]

4) THAT all three informants have expressed fear for their own physical safety.  ... All three informants live within the area.

10) THAT ... I have reasonable grounds to believe that the information contained in the said film or portions thereof will afford relevant evidence for the prosecution of a criminal offence, evidence which would not otherwise be available due to:

(a) The considerable confusion at the scene;

(b) The limited number of R.C.M.P. officers available at the time for identification purposes;

(c) The darkness and general visibility problems at the time preventing easy eye witness identification by the Royal Canadian Mounted Police.

11) THAT alternative sources of information have been exhausted, such as the use of informants..., the informants having made it very clear to your deponent that they do not dare come forward and testify in court of law.

12) THAT despite considerable investigation effort in the area, no eye witnesses are prepared to come forward. ...

13) THAT ... your deponent does have reason to believe and does believe that there are no other means available to the police for obtaining evidences for the proper determination of possible charges.

The information did not reveal that police identification experts were also present at the scene. Relying upon the information of officer Ouellette, a justice of the peace issued the requested search warrant on October 26, 1988. The following day, three RCMP officers attended at the offices of the C.B.C. in Moncton. The officers and officials from the C.B.C. agreed to place the videotapes in question in a sealed envelope ... pending the outcome of these proceedings. ...

Section 487 of the Criminal Code sets out the only requirements which must be met for the issuance of a search warrant. They are but two. It must be demonstrated that reasonable grounds exist to believe 1) that there is in a building, receptacle or place; 2) something that will afford evidence with respect to the commission of an offence. ...

The section, by the use of the word "may", recognizes that the justice of the peace has a discretion to determine whether to issue the warrant. ... In exercising this discretion, a balance must be struck between the interests of the state in investigating and prosecuting crime and the privacy interests of the individual or body whose premises the state wishes to search. ...

... Any search of premises is certain to be disquieting and upsetting. The invasion of privacy rights ... is an important concern for all members of a democratic society. Some searches are obviously more intrusive and upsetting than others. For example, the search of a residence is likely to have graver consequences than a search of commercial premises which may be subject to statutory regulation and inspection. Because of its intrusive nature, a warrant to search any premises must only be issued when a justice of the peace is satisfied that all the statutory requirements have been met. In those situations where all the statutory pre-requisites have been established, the justice of the peace should still consider all of the circumstances in determining whether to exercise his or her discretion to issue a warrant. It is not a step that can be taken lightly. This is particularly true when a warrant is sought to search the offices of a news media organization, where the consequences are likely to be disruptive of the media's role of gathering and publishing news.

The media have a vitally important role to play in a democratic society. It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well being. The special significance of the work of the media was recognized by this Court in Edmonton Journal v. A.-G. Alberta []. The importance of that role and the manner in which it must be fulfilled gives rise to special concerns when a warrant is sought to search media premises.

The constitutional protection of freedom of expression afforded by s. 2(b) ... does not, however, import any new or additional requirements for the issuance of search warrants. What it does is provide a backdrop against which the reasonableness of the search may be evaluated. ...

Whether the search of a media office can be considered reasonable will depend on a number of factors including the nature of the objects to be seized, the manner in which the search is to be conducted and the degree of urgency of the search. It is of particular importance that the justice of the peace consider the effects of the search and seizure on the ability of the particular media organization in question to fulfil its function as a news gatherer and news disseminator. If a search will impede the media from fulfilling these functions and the impediments cannot reasonably be controlled through the imposition of conditions on the execution of the search warrant, then a warrant should only be issued where a compelling state interest is demonstrated. This might be accomplished by satisfying [] two factors ...: namely, that there is no alternative source of information available or, if there is, that reasonable steps have been taken to obtain the information from that source. Alternatively, the search might be justified on the grounds of the gravity of the offence under investigation and the urgent need to obtain the evidence expected to be revealed by the search.

The balancing of interests is always a difficult and delicate task. In this case, for example, the throwing of molotov cocktails at a building not only damaged the property but constituted a potential threat to the lives and safety of others. The investigation of a serious and violent crime was of importance to the state. Further, in light of the ongoing demonstrations, some urgency in conducting the search must be recognized. On the other hand, the objects sought to be seized were the product of the research and investigation of a media organization. It was important that the continuing work of the media should not be unduly impeded.

The factors to be weighed with regard to issuing a warrant to search any premises will vary with the circumstances presented. This is as true of searches of media offices as of any other premises. It seems to me, however, that where the media have fulfilled their role by gathering the news and publishing it, there would seem to be less to be said for refusing to make that material available to the police. At that point, the media have given to the public, by way of picture or print, evidence of the commission of a crime. The media, like any good citizen, should not be unduly opposed to disclosing to the police the evidence they have gathered with regard to that crime.

For example, if a private citizen took pictures of a crime being committed and posted those pictures on a public notice board, the public could quite properly expect that those pictures and the negatives would, upon request, be delivered to the police. This is so as it is in the best interests of all members of the community to see that crimes are investigated and prosecuted. Should the private citizen fail to do so, the police would be expected to take steps to obtain a warrant to search the citizen's premises for the negatives and copies of the photographs. Once the media have published the information, the same principles might well apply to them.

The media argue that the issuance of a search warrant would have the effect of "drying up" their sources of information. In my view, that argument is seriously weakened once the media have placed the information in the public domain. ... Once the information has been made public, it becomes difficult to contend there would be a "chilling effect" on the media sources if that information were also disclosed to the police. ...

Counsel for the C.B.C. submits that the two factors ... should ... be made constitutional prerequisites of any search of media offices, where the media are not implicated in the crime under investigation.

In my view, the assessment of the reasonableness of a search cannot be said to rest only upon these two factors. Rather all factors should be evaluated. ... The essential question can be put in this way: taking into account all the circumstances and viewing them fairly and objectively can it be said that the search was a reasonable one?

It is the overall reasonableness of a search which is protected by s. 8 of the Charter. Certainly the potentially damaging effect of a search and seizure upon the freedom and the functioning of the press is highly relevant. ... Yet neither s. 2(b) nor s. 8 of the Charter require that the two factors set out [above] must always be met. ...

It may be helpful to summarize the factors to be considered ... on an application to obtain a warrant to search the premises of a news media organization. ...

1) ... all the requirements set out in s. 487(1)(b) [must be met] ...

2) Once the statutory conditions have been met, the justice of the peace should consider all of the circumstances in determining whether to exercise his or her discretion. ...

3) The justice of the peace should ensure that a balance is struck between the competing interests of the state in the investigation and prosecution of crimes and the right to privacy of the media in the course of their news gathering and news dissemination. It must be borne in mind that the media play a vital role in the functioning of a democratic society. Generally speaking, the news media will not be implicated in the crime under investigation. They are truly an innocent third party. This is a particularly important factor to be considered in attempting to strike an appropriate balance, including the consideration of imposing conditions on that warrant.

4) The affidavit in support of the application must contain sufficient detail to enable the justice of the peace to properly exercise his or her discretion as to the issuance of a search warrant.

5) Although it is not a constitutional requirement, the affidavit material should ordinarily disclose whether there are alternative sources from which the information may reasonably be obtained and, if there is an alternative source, that it has been investigated and all reasonable efforts to obtain the information have been exhausted.

6) If the information sought has been disseminated by the media in whole or in part, this will be a factor which will favour the issuing of the search warrant.

7) If a justice of the peace determines that a warrant should be issued for the search of media premises, consideration should then be given to the imposition of some conditions on its implementation, so that the media organization will not be unduly impeded in the publishing or dissemination of the news.

8) If, subsequent to the issuing of a search warrant, it comes to light the authorities failed to disclose pertinent information that could well have affected the decision to issue the warrant, this may result in a finding that the warrant was invalid.

9) Similarly, if the search itself is unreasonably conducted, this may render the search invalid.

... In the present case, officer Ouellette's information was sufficient to meet these requirements. There is no evidence in this case that the search impeded the media. ... In these circumstances, the search was a reasonable one ..., notwithstanding any deficiencies in the information with respect to alternate sources. But, in the alternative, officer Ouellette declared in his information that all reasonable sources of the information sought had been pursued but none were available. In this regard it is of considerable significance that there was a specific finding that there was no bad faith involved on the part of the police.

In light of this finding, it is safe to accept the information as one sworn in good faith. It follows that there is nothing nefarious in the failure to mention the presence at the scene of the identification officers. That same finding makes it appropriate to assume that these officers could not be considered an alternative source of information. If they could, the police would surely prefer to use their own witnesses and photographs or videotapes in the preparation of their cases. In any event, the finding that there was no bad faith is of critical importance to my conclusions.

There is nothing in the record to indicate that the justice of the peace improperly exercised her discretion. In the circumstances, it should be accepted that the warrant was validly issued.

La Forest and L'Heureux-Dubé JJ. each wrote concurring judgements.

McLachlin J. (dissenting)

[In C.B.C. v. Lessard] I set out my view of the legal principles applicable to this type of case. Those principles lead me to the conclusion that the warrant in this case violated the [Charter] and cannot be upheld.

The affidavit ... indicated that there were no alternative sources of information which could be used in a court of law, since the other sources of information available to the police "do not dare come forward and testify in [a] court of law." No reasons for the reluctance of these witnesses was given. There is no suggestion that the witnesses in question could not have been subpoenaed to testify. It may be that they feared censure by fellow trade-union members if they testified against them. But we do not know. In the absence of such information, the justice of the peace was not in a position to determine if the issuance of the warrant was really necessary, or whether it was justified, given the violation of Charter rights which it entailed.

I would allow the appeal.

Canadian Broadcasting Corp. v. Lessard

[1991] 3 S.C.R. 421

Cory J. (Sopinka, Gonthier and Stevenson JJ. concurring)

On June 17, 1987, a camera crew from the Canadian Broadcasting Corporation (the "C.B.C.") filmed a group of people occupying and damaging a post office building in Pointe-Claire, Quebec. Portions of the videotape were broadcast twice on both the English and French networks of the C.B.C. There is no indication that the police were at the scene or were aware of the incident at the time the film was made.

The day following the broadcast of the footage, [the police] sought authorization from a justice of the peace to search for the videotapes on which the acts of vandalism were recorded. ...

The parties are in agreement that there was nothing in the [application] which would permit the justice of the peace to determine if there were an alternative source of information and, if there were such a source, whether reasonable steps had been taken to get the information from that source. Nonetheless, ... a warrant was granted to enter, search and seize the videotapes at the C.B.C.'s head office in Montreal.

Later that day, Cyr and another officer seized five videotapes. Four of these tapes contained raw footage of the incidents filmed while the fifth tape was that of a news report in the form in which it had been broadcast. At the request of C.B.C. officials, the tapes were placed in a sealed envelope while the validity of the warrant was contested.

In the companion appeal Canadian Broadcasting Corporation v. New Brunswick (Attorney General), I attempted to summarize the factors that must be taken into account in the balancing process in determining whether a search warrant should be issued. ...

[In this case there can be no doubt it would have been preferable if the affidavit material had indicated that there was either no alternative source of information to the police or, if there was, that the information sought could not be obtained from that alternative source. The failure to set that out is certainly a basis upon which the justice of the peace could refuse to issue the search warrant. As a result, I would expect that in the future, this information would in most cases be placed before the justice of the peace.

However, this is not a constitutionally required condition for the issuance of a search warrant. ... Here the search was conducted reasonably and did not affect the operations of the news media. Further, there is no indication that the police were at the scene or even aware of the crime when the film was made. It is reasonable to infer that they, like other members of the public, learned the details of the crime from the broadcast.

It must be remembered that all members of the community have an interest in seeing that crimes are investigated and prosecuted. In a situation such as this, the media might even consider voluntarily delivering their videotapes to the police. ...

[O]nce the news media have published the gathered information, that information then passes into the public domain. ... When a crime has been committed and evidence of that crime has been published, society has every right to expect that it will be investigated and, if appropriate, prosecuted. Here, the publication or broadcasting of the information was a factor of sufficient importance to enable the justice of the peace to exercise his discretion and issue the search warrant notwithstanding the failure of the police to explain that there was no alternative source available. ...

The failure to set out the lack of alternative sources was simply another factor to be taken into account in assessing the reasonableness of the search. Here, the actual search was conducted reasonably and properly. There was no interference with the operation of the news media, nor was the freedom of the press threatened. The media had already completed their basic function of news gathering and news dissemination; thus, in my view, the seizure of the tapes at this stage could not be said to have a chilling effect on the media's sources of news. It was therefore appropriate for the justice of the peace to issue the search warrant in this case. ...

La Forest J.

[] I would dispose of the case in the manner proposed by Cory J. I agree with much of what he has to say, but I would confine the reasons strictly to situations similar to the present case. I am particularly concerned with the extent to which reliance should be placed on the facts that the respondent (the C.B.C.) had already placed the information sought to be obtained under the search warrant in the public domain, and that the search did not interfere with its broadcasting capabilities. I agree that these facts may properly be taken into account and that, in the circumstances of this case, they have great weight..., but reliance on such factors in other situations could, I fear, lead to serious infringements of the freedom of the press and other media of communications. I, therefore, think it right to set forth my own perspectives on the issues.

Like Cory J., I take it as a given that freedom of the press and other media is vital to a free society. There can be no doubt, of course, that it comprises the right to disseminate news, information and beliefs. However, the freedom to disseminate information would be of little value if the freedom under s. 2(b) did not also encompass the right to gather news and other information without undue governmental interference.

I have little doubt, too, that the gathering of information could in many circumstances be seriously inhibited if government had too ready access to information in the hands of the media. That someone might be deterred from providing information to a journalist because his or her identity could be revealed seems to me to be self-evident. ...

In my view, the threat to the freedom of the press that would result from unrestrained searches of certain journalistic material goes beyond the merely speculative. I would draw a line, however, between films and photographs of an event and items such as a reporter's personal notes, recordings of interviews and source "contact lists". ...

I find the C.B.C.'s argument that there will be a "chilling effect" on newsgathering unpersuasive, in so far as that argument pertains to films and photographs taken of an event. I think the chill is already there. Absent a promise of confidentiality, no one can reasonably believe that there is no danger of identification when he is being captured on film by the press. When the press is covering an event under circumstances such as those in the present case, the very reason for the presence of cameramen is to take film and photographs for the purpose of broadcasting. While not all of the photographs will get published, there is a very real possibility that someone who commits a crime in front of the camera will find himself on the evening news or on the front page of a newspaper. The situation might be different if the press had made an undertaking to edit the film so that no identities would be revealed, or had promised confidentiality. ...

As earlier mentioned, however, I do think that the "chilling effect" argument has merit in relation to other aspects of a reporter's work product. A distinguishing feature of the Pacific Press case (Re Pacific Press Ltd. and The Queen (1977), 37 C.C.C. (2d) 487 (B.C.S.C.)), discussed by Cory J., is that in that case reporters' handwritten notes and a reporter's "contact book" were also seized in the search. The press should not be turned into an investigative arm of the police. The fear that the police can easily gain access to a reporter's notes could well hamper the ability of the press to gather information. I would think that, barring exigent circumstances, the seizure of items of this nature should only be permitted when it is clear that all reasonable alternative sources have been exhausted.

With respect to films and photographs, the exhaustion of alternative sources should not ... necessarily be required, unless there has been a guarantee of confidentiality. It can be argued that this distinction is not workable, since the police, and hence the justice of the peace, will in most cases not know in advance whether any information contained on a videotape is confidential or not. On the other hand, if the media organization claims that there is such confidential material, it would be a simple enough matter to seal the seized film in an envelope ... and subject it to an in camera hearing by the reviewing judge.

Another matter requiring consideration is the possibility that the police will uncover other confidential sources in the course of searching for the relevant material. This arguably would point towards adding restrictions against searches of press organizations under all circumstances. While the C.B.C. argues that the possibility of this occurring will also render people less likely to provide the press with information, I am, on the whole, of the opinion that this connection is simply too attenuated. ... Should there be evidence in a future case that this does indeed give rise to a real problem, the issue can be addressed at that time. In the meantime, this concern can probably best be addressed by limiting the warrant to specifically delineated items.

The foregoing remarks have been made on the basis that the search here was reasonable under s. 8 ..., but I note that my colleague McLachlin J. approaches the matter from the perspective that there has been a violation of s. 2 (b), which would require justification under s. 1 of the Charter. I am clearly of the view for the considerations mentioned in discussing the reasonableness of the search that there was no violation of s. 2(b) in the specific circumstances of this case. ... Even had I been disposed to hold there was an infringement, the compelling requirements of law enforcement, when weighed against the highly tenuous interference with the right, would lead me to the view that the search in this case would be justifiable. ...

L'Heureux-Dubé J.

I have had the benefit of my colleague Justice Cory's reasons. I agree with the result he reaches. ...

I wish to make clear at the outset that my reasons address only the specific facts of this case. .... Here, the material which was the object of the search warrant consisted of films and photographs of a particular event to which no notion of confidentiality was attached or implied. ...

According to Durand J. of the Quebec Superior Court, once the conditions set out in s. 487 are met, the justice of the peace is justified in issuing the search warrant. Monet J.A., in dissent, agreed with this position. However, the majority of the Court of Appeal held that, before issuing a warrant for the search of the premises of innocent third persons..., the justice of the peace must be satisfied that no alternative sources of the information sought are available. I disagree. I also disagree with Cory J.'s enumeration of the factors that must be taken into account by the justice of the peace in determining whether a search warrant should be issued. In my view, such a balancing process at that stage is neither mandated by s. 487 of the Criminal Code nor is it practical with regard both to the functions of the justice of the peace and the burden on those requesting the search warrant, often as a matter of urgency.

The search for alternative sources may involve a lengthy and costly process. ... One can readily see the complexity of the task with which a justice of the peace may be burdened should he or she be held to such a standard each time the issuance of a search warrant is requested against an innocent third party. ...

Important as the constitutional protection of the freedom of the press is, it does not go as far as guaranteeing the press special privileges which ordinary citizens, also innocent third parties, would not enjoy in a search for evidence of a crime. The law does not make such a distinction and the Charter does not warrant it. In fact, the press itself does not generally request special privileges.

In summary, ... once the conditions set out in [s.487] are met, the justice of the peace has jurisdiction to issue a search warrant to retrieve evidence of the commission of a crime even in the absence of a statement as to the availability of alternative sources. ... Besides, the freedom of the press is not involved here. ...

McLachlin J. (dissenting)

... The central issue ... is the scope of the constitutional guarantee of freedom of the press and how it is to be reconciled to the public interest in permitting the police to have access to information relevant to the commission of offences. Unlike my colleagues, I hold the view that this issue requires the court to confront squarely two questions: (1) whether search and seizure of the press offends s. 2(b) ..., and (2) if so, the conditions, if any, on which such search and seizure can be justified under s. 1. Analyzing s. 2(b) in the light of principles laid down in other cases, it is my conclusion that the search here in question violates s. 2(b) ... and that the violation was not shown to be justified under s. 1. ...

Section 487 of the Criminal Code [] permits a justice of the peace to issue a warrant for the search of premises and seizure of things found on the premises where the justice is satisfied that there are reasonable grounds to believe that items relevant to the commission of an offence may be found on the premises. The section applies to all premises, including those of the press.

The general constitutionality of s. 487 is not challenged. Rather, what is at issue is the exercise by the justices of the peace of their discretion to refuse a warrant in special circumstances[]. It is submitted that searches and seizures on press premises can be permitted only in special circumstances where it is established that the state's interest in the administration of justice outweighs the interest in freedom of the press. Our task is to determine whether search and/or seizure on press premises infringes freedom of the press ..., and if so, to define those circumstances, if any, in which the limitation on freedom of the press imposed by a search or seizure on press premises can be justified under s. 1. ... It will then be for justices of the peace hearing applications for search warrants to conduct themselves in accordance with the Charter.

By specifically referring to freedom of the press, s. 2(b) affirms the special position of the press and other media in our society. It affirms that the press and the media have the constitutional right to pursue their legitimate functions in our society. Freedom of the press under the Charter must be interpreted in a generous and liberal fashion having regard to the history of the guarantee and focusing on the purpose of the guarantee[].

The history of freedom of the press in Canada belies the notion the press can be treated like other citizens or legal entities when its activities come into conflict with the state. Long before the enactment of the Charter, the courts recognized the special place of the press in a free and democratic society. ...

... Prior to the adoption of the Charter, freedom of speech and expression had been recognized as an essential feature of Canadian parliamentary democracy. Indeed, this Court may be said to have given it constitutional status.

Even prior to the Charter, the special position of the press was recognized as sufficient to oust the usual rights of the police to gather information by search and seizure []. The position of the press can be no less privileged under the Charter.

I pass from the history of the freedom of expression in Canada to the purpose of the guarantee. The values underlying freedom of the press, like freedom of expression, include the pursuit of truth. The press furthers that pursuit by reporting on facts and opinions and offering its comment on events and ideas - activities vital to the functioning of our democracy, which is premised on the free reporting and interchange of ideas. The press acts as the agent of the public in monitoring and reporting on governmental, legal and social institutions []. Freedom of the press is also important to participation in the community and individual self-fulfillment. One need only think of the role of a community newspaper in facilitating community participation, or the role of arts, sports and policy publications to see the importance of freedom of the press to these goals. We thus see that the values identified in as central to free expression, also underlie the guarantee of freedom of the press and media. As to the means by which these purposes are to be achieved, it may be ventured that an effective and free press is dependent on its ability to gather, analyze and disseminate information, independent from any state imposed restrictions on content, form or perspective except those justified under s. 1. ...

The ways in which police search and seizure may impinge on the values underlying freedom of the press are manifest. First, searches may be physically disruptive and impede efficient and timely publication. Second, retention of seized material by the police may delay or forestall completing the dissemination of the news. Third, confidential sources of information may be fearful of speaking to the press, and the press may lose opportunities to cover various events because of fears on the part of participants that press files will be readily available to the authorities. Fourth, reporters may be deterred from recording and preserving their recollections for future use. Fifth, the processing of news and its dissemination may be chilled by the prospect that searches will disclose internal editorial deliberations. Finally, the press may resort to self-censorship to conceal the fact that it possesses information that may be of interest to the police in an effort to protect its sources and its ability to gather news in the future. All this may adversely impact on the role of the media in furthering the search for truth, community participation and self-fulfillment. With deference to Cory J., I cannot accept that the fact that a portion of the material seized may have been published negates the chilling effect seizure might have on imformants and the press itself. The fact that a portion of the material has been published does not negate the fact that other portions adversely affecting the privacy of press informants may be disclosed as a consequence of the search. But more fundamentally, it is the prospect of seizure of press material in the future cases without the imposition of conditions to protect press freedom and the identity of informants which creates the chilling effect. The fact that some of the material may have been published in no way diminishes such fears.

I add that it is not every state restriction on the press which infringes s. 2(b). Press activities which are not related to the values fundamental to freedom of the press may not merit Charter protection []. For example, the press might not be entitled to Charter protection with respect to documents relating to an alleged offence by the press itself.

The press activity at issue in this case -- gathering and disseminating information about a labour demonstration -- is directly related to the furtherance of the values of truth, community participation and self-fulfillment that underlie the guarantee of free expression. It follows that such search and seizure infringes freedom of the press as guaranteed by s. 2(b). ...

This, however, is not the end of the analysis. The more difficult question is how freedom of the press is to be reconciled with society's interest in the administration of justice and the conviction of the guilty. Under the [Charter], that analysis takes place under the rubric of s. 1 of the Charter. ...

The first question is whether there may ever be circumstances in which a search and/or seizure on press premises infringing s. 2(b) can be justified under s. 1. Pre-Charter jurisprudence suggests that search and seizure of press material may be justified in appropriate circumstances, as in the case where there is no alternative source of the relevant evidence []. Denying the police the power ever to search press offices or seize press documents would have the advantage of eliminating ex parte hearings and the spectre of police in a newsroom rifling though press files. But, since a subpoena cannot be issued for purely investigatory processes, such a policy would effectively preclude police access to information in the hands of the press at the investigation stage. Access to information in the hands of the press at an investigatory stage may be extremely important -- sufficiently important in fact to outweigh the negative impact on freedom of the press of an ex parte application and subsequent search and seizure. Accordingly, the argument that a warrant for search and seizure of an organ of the press can never be made out must fail.

What we are faced with then is the delicate task of finding the proper balance between the public interest in the right of the press to conduct its activities free from state interference, and the public interest in seeing that those guilty of offences are charged and convicted.

In my opinion, the issuance of a warrant for search and for seizure of press information may be justified provided the following conditions are met:

(1) The search/seizure is necessary because there are no alternative sources for the information required;

(2) The importance of the search/seizure outweighs the damage to be caused by the infringement of freedom of the press; and

(3) The warrant ensures that the search/seizure interferes with the press's freedom as little as possible.

These requirements mirror the concerns central to a s. 1 analysis as set out in [Oakes]. It goes without saying that the pressing objective required by Oakes --- the effective prosecution and prevention of crime --- will normally be established where the police seek evidence relevant to the commission of an offence. The requirement that the search be necessary ... is in reality an insistence that there be a rational connection between the infringing measure and the state objective; if there are other sources of information, the necessary link between the infringement and the state goal justifying it is absent. The second and third elements of my proposed test echo the remaining two branches of the proportionality test proposed in Oakes.

Given the seriousness of any violation of freedom of the press, the justice of the peace must be satisfied that the special requirements for the issuance of a warrant of search and seizure against a press agency are clearly established. Bald assertions of necessity or proportionality will not suffice. They must be backed up by more specific assertions.

For example, a justice enquiring whether the warrant is made necessary by the absence of alternative sources might well expect answers to questions like the following: Are there other sources known to the police? Have the police made reasonable efforts to find and utilize alternative sources? Mere administrative convenience will not suffice.

Similarly, in weighing the seriousness of the invasion of press freedom against the importance of the suspected evidence and the investigation, the justice might ask questions like the following: How serious is the alleged violation of the law? Is the search likely to disrupt the operations of the press organ? What is the likelihood of revealing the identity of informants in a way that may inhibit future communications with the press? Has the material already been substantially published? Can the search be conducted or the information obtained in a way that will do little harm to the operations of the press now and in the future?

The requirement that the infringement go no further than is necessary to achieve the desired object demands like particularity. The justice should cast the warrant in terms which reduce as far as possible the effects of the infringement. Matters such as timing, specificity of the items to be seized, and conditions protecting the identity of informants may fall to be considered, as may the manner in which the warrant is to be executed. For example, where there is no reason to believe the press will destroy the material or refuse to surrender it, it might be reasonable for the warrant to require that the information be surrendered rather than allowing the police to search the premises and seize the materials. ...

In some cases a justice concerned to minimize impact or concerned as to whether the warrant should issue at all may wish to receive representations from the press organ in question, especially in circumstances where the need for the suspected evidence is not particularly urgent and there is no reason to suspect that the evidence in question will be concealed or destroyed.

In summary, the justice of the peace ... possesses jurisdiction to refuse the warrant or impose conditions on its execution, so as to ensure that the limit on press freedom it represents is justified under s. 1. ... This is essential to ensure that the action of the police in searching for and seizing press materials does not violate the Charter. Should more precision be deemed necessary it is open to Parliament to enact legislation setting out special procedures governing search and seizure on press premises, as it did in enacting s. 488.1 of the Criminal Code, dealing with seizure of privileged documents [].

The warrant in the case at bar does not comply with the requirements of the Charter.

The search of the premises to obtain the video recordings of the vandalism which the police were investigating and the subsequent seizure of a number of recordings violates the freedom of the press. ... While the aim of the search and seizure was not to limit freedom of the press, that was the effect. The press activities represented by the tapes seized were directly related to the legitimate pursuit of the values underlying the guarantee of press freedom and were worthy of Charter protection. The search and seizure impinged on the press's liberty. The broadcaster's private offices were searched. The means by which it communicated the news to the public were seized and detained. The fact that a portion of the material had already been published does not detract from the fact that the broadcaster's legitimate press activities were interfered with. It follows that a breach of s. 2(b) is established.

The search and seizure are not shown to have been justified under s. 1. ... The warrant was issued notwithstanding the absence of any evidence that the information could not be obtained elsewhere. Nor was there any material to permit the justice to weigh the importance of the search against the press infringement and to ensure that it did not intrude on press freedom further than necessary. While it is not alleged that the police interfered with the broadcaster's operations unduly, the absence of material enabling the justice to conclude that the search and seizure were necessary and proportionate is fatal. Without such information, the Crown cannot justify its infringement of press freedom. ....

C. AMERICAN JURISPRUDENCE

Zurcher v. Stanford Daily

436 U.S. 547 (1978)

White J.

The terms of the Fourth Amendment, applicable to the States by virtue of the Fourteenth Amendment, are familiar:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I

Late in the day on Friday, April 9, 1971, officers of the Palo Alto Police Department and of the Santa Clara County Sheriff's Department responded to a call from the director of the Stanford University Hospital requesting the removal of a large group of demonstrators who had seized the hospital's administrative offices and occupied them since the previous afternoon. After several futile efforts to persuade the demonstrators to leave peacefully, more drastic measures were employed. The demonstrators had barricaded the doors at both ends of a hall adjacent to the administrative offices.

The police chose to force their way in at the west end of the corridor. As they did so, a group of demonstrators emerged through the doors at the east end and, armed with sticks and clubs, attacked the group of nine police officers stationed there. One officer was knocked to the floor and struck repeatedly on the head; another suffered a broken shoulder. All nine were injured. There were no police photographers at the east doors, and most bystanders and reporters were on the west side. The officers themselves were able to identify only two of their assailants, but one of them did see at least one person photographing the assault at the east doors.

On Sunday, April 11, a special edition of the Stanford Daily (Daily), a student newspaper published at Stanford University, carried articles and photographs devoted to the hospital protest and the violent clash between demonstrators and police. The photographs carried the byline of a Daily staff member and indicated that he had been at the east end of the hospital hallway where he could have photographed the assault on the nine officers.

The next day, the Santa Clara County District Attorney's Office secured a warrant from the Municipal Court for an immediate search of the Daily's offices for negatives, film, and pictures showing the events and occurrences at the hospital on the evening of April 9. The warrant issued on a finding of "just, probable and reasonable cause for believing that: Negatives and photographs and films, evidence material and relevant to the identity of the perpetrators of felonies, to wit, Battery on a Peace Officer, and Assault with Deadly Weapon, will be located [on the premises of the Daily]." [] The warrant affidavit contained no allegation or indication that members of the Daily staff were in any way involved in unlawful acts at the hospital.

The search pursuant to the warrant was conducted later that day by four police officers and took place in the presence of some members of the Daily staff. The Daily's photographic laboratories, filing cabinets, desks, and wastepaper baskets were searched. Locked drawers and rooms were not opened.

The officers apparently had opportunity to read notes and correspondence during the search; but, contrary to claims of the staff, the officers denied that they had exceeded the limits of the warrant. They had not been advised by the staff that the areas they were searching contained confidential materials. The search revealed only the photographs that had already been published on April 11, and no materials were removed from the Daily's office.

A month later the Daily and various members of its staff, respondents here, brought a civil action seeking declaratory and injunctive relief ... against the police officers who conducted the search, the chief of police, the district attorney and one of his deputies, and the judge who had issued the warrant. ...

II

The issue here is how the Fourth Amendment is to be construed and applied to the "third party" search, the recurring situation where state authorities have probable cause to believe that fruits, instrumentalities, or other evidence of crime is located on identified property but do not then have probable cause to believe that the owner or possessor of the property is himself implicated in the crime that has occurred or is occurring. ...

It is an understatement to say that there is no direct authority in this or any other federal court for the District ... Under existing law, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found. Nothing on the face of the Amendment suggests that a third-party search warrant should not normally issue.

IV

The District Court held, and respondents assert here, that whatever may be true of third-party searches generally, where the third party is a newspaper, there are additional factors derived from the First Amendment that justify a nearly per se rule forbidding the search warrant. ... The general submission is that searches of newspaper offices for evidence of crime reasonably believed to be on the premises will seriously threaten the ability of the press to gather, analyze, and disseminate news. This is said to be true for several reasons: First, searches will be physically disruptive to such an extent that timely publication will be impeded. Second, confidential sources of information will dry up, and the press will also lose opportunities to cover various events because of fears of the participants that press files will be readily available to the authorities. Third, reporters will be deterred from recording and preserving their recollections for future use if such information is subject to seizure. Fourth, the processing of news and its dissemination will be chilled by the prospects that searches will disclose internal editorial deliberations. Fifth, the press will resort to self-censorship to conceal its possession of information of potential interest to the police.

It is true that the struggle from which the Fourth Amendment emerged "is largely a history of conflict between the Crown and the press," Stanford v. Texas, 379 U.S. 476 [] (1965), and that in issuing warrants and determining the reasonableness of a search, state and federal magistrates should be aware that "unrestricted power of search and seizure could also be an instrument for stifling liberty of expression." Marcus v. Search Warrant, 367 U.S. 717, [] (1961). Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with "scrupulous exactitude." Stanford v. Texas, supra, 379 U.S., at 485 []. "A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material." Roaden v. Kentucky, 413 U.S. 496, 501 [] (1973). Hence, in Stanford v. Texas, the Court invalidated a warrant authorizing the search of a private home for all books, records, and other materials relating to the Communist Party, on the ground that whether or not the warrant would have been sufficient in other contexts, it authorized the searchers to rummage among and make judgments about books and papers and was the functional equivalent of a general warrant, one of the principal targets of the Fourth Amendment. Where presumptively protected materials are sought to be seized, the warrant requirement should be administered to leave as little as possible to the discretion or whim of the officer in the field.

Similarly, where seizure is sought of allegedly obscene materials, the judgment of the arresting officer alone is insufficient to justify issuance of a search warrant or a seizure without a warrant incident to arrest. The procedure for determining probable cause must afford an opportunity for the judicial officer to "focus searchingly on the question of obscenity." []

Neither the Fourth Amendment nor the cases requiring consideration of First Amendment values in issuing search warrants, however, call for imposing the regime ordered by the District Court. Aware of the long struggle between Crown and press and desiring to curb unjustified official intrusions, the Framers took the enormously important step of subjecting searches to the test of reasonableness and to the general rule requiring search warrants issued by neutral magistrates. They nevertheless did not forbid warrants where the press was involved, did not require special showings that subpoenas would be impractical, and did not insist that the owner of the place to be searched, if connected with the press, must be shown to be implicated in the offense being investigated. Further, the prior cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment interests would be endangered by the search. As we see it, no more than this is required where the warrant requested is for the seizure of criminal evidence reasonably believed to be on the premises occupied by a newspaper. Properly administered, the preconditions for a warrant--probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness--should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices.

There is no reason to believe, for example, that magistrates cannot guard against searches of the type, scope, and intrusiveness that would actually interfere with the timely publication of a newspaper. Nor, if the requirements of specificity and reasonableness are properly applied, policed, and observed, will there be any occasion or opportunity for officers to rummage at large in newspaper files or to intrude into or to deter normal editorial and publication decisions. The warrant issued in this case authorized nothing of this sort. Nor are we convinced ... that confidential sources will disappear and that the press will suppress news because of fears of warranted searches. Whatever incremental effect there may be in this regard if search warrants, as well as subpoenas, are permissible in proper circumstances, it does not make a constitutional difference in our judgment. The fact is that respondents and amici have pointed to only a very few instances in the entire United States since 1971 involving the issuance of warrants for searching newspaper premises. This reality hardly suggests abuse; and if abuse occurs, there will be time enough to deal with it. Furthermore, the press is not only an important, critical, and valuable asset to society, but it is not easily intimidated--nor should it be. ...

We accordingly reject the reasons given by the District Court and adopted by the Court of Appeals for holding the search for photographs at the Stanford Daily to have been unreasonable within the meaning of the Fourth Amendment and in violation of the First Amendment. Nor has anything else presented here persuaded us that the Amendments forbade this search. It follows that the judgment of the Court of Appeals is reversed. So ordered. ...

Powell J., concurring

I join the opinion of the Court, and I write simply to emphasize what I take to be the fundamental error of Mr. Justice Stewart's dissenting opinion. As I understand that opinion, it would read into the Fourth Amendment, as a new and per se exception, the rule that any search of an entity protected by the Press Clause of the First Amendment is unreasonable so long as a subpoena could be used as a substitute procedure. Even aside from the difficulties involved in deciding on a case-by-case basis whether a subpoena can serve as an adequate substitute, I agree with the Court that there is no constitutional basis for such a reading. ...

Stewart J. dissenting (Marshall J., concurring)

Believing that the search by the police of the offices of the Stanford Daily infringed the First and Fourteenth Amendments' guarantee of a free press, I respectfully dissent.

I

It seems to me self-evident that police searches of newspaper offices burden the freedom of the press. The most immediate and obvious First Amendment injury caused by such a visitation by the police is physical disruption of the operation of the newspaper. Policemen occupying a newsroom and searching it thoroughly for what may be an extended period of time will inevitably interrupt its normal operations, and thus impair or even temporarily prevent the processes of newsgathering, writing, editing, and publishing. By contrast, a subpoena would afford the newspaper itself an opportunity to locate whatever material might be requested and produce it.

But there is another and more serious burden on a free press imposed by an unannounced police search of a newspaper office: the possibility of disclosure of information received from confidential sources, or of the identity of the sources themselves. Protection of those sources is necessary to ensure that the press can fulfill its constitutionally designated function of informing the public, because important information can often be obtained only by an assurance that the source will not be revealed. []. Branzburg v. Hayes, 408 U.S. 665, 725-736, 92 S.Ct. 2646, 2671-2677, 33 L.Ed.2d 626 (dissenting opinion). And the Court has recognized that " 'without some protection for seeking out the news, freedom of the press could be eviscerated.' " Pell v. Procunier, 417 U.S. 817, 833 [].

Today the Court does not question the existence of this constitutional protection, but says only that it is not "convinced ... that confidential sources will disappear and that the press will suppress news because of fears of warranted searches." [] This facile conclusion seems to me to ignore common experience. It requires no blind leap of faith to understand that a person who gives information to a journalist only on condition that his identity will not be revealed will be less likely to give that information if he knows that, despite the journalist's assurance his identity may in fact be disclosed. And it cannot be denied that confidential information may be exposed to the eyes of police officers who execute a search warrant by rummaging through the files, cabinets, desks, and wastebaskets of a newsroom. Since the indisputable effect of such searches will thus be to prevent a newsman from being able to promise confidentiality to his potential sources, it seems obvious to me that a journalist's access to information, and thus the public's will thereby be impaired.

A search warrant allows police officers to ransack the files of a newspaper, reading each and every document until they have found the one named in the warrant, while a subpoena would permit the newspaper itself to produce only the specific documents requested. A search, unlike a subpoena, will therefore lead to the needless exposure of confidential information completely unrelated to the purpose of the investigation. The knowledge that police officers can make an unannounced raid on a newsroom is thus bound to have a deterrent effect on the availability of confidential news sources. The end result, wholly inimical to the First Amendment, will be a diminishing flow of potentially important information to the public.

One need not rely on mere intuition to reach this conclusion. The record in this case includes affidavits not only from members of the staff of the Stanford Daily but also from many professional journalists and editors, attesting to precisely such personal experience. Despite the Court's rejection of this uncontroverted evidence, I believe it clearly establishes that unannounced police searches of newspaper offices will significantly burden the constitutionally protected function of the press to gather news and report it to the public.

II

... It is well to recall the actual circumstances of this litigation. The application for a warrant showed only that there was reason to believe that photographic evidence of assaults on the police would be found in the offices of the Stanford Daily. There was no emergency need to protect life or property by an immediate search. The evidence sought was not contraband, but material obtained by the Daily in the normal exercise of its journalistic function. Neither the Daily nor any member of its staff was suspected of criminal activity. And there was no showing that the Daily would not respond to a subpoena commanding production of the photographs, or that for any other reason a subpoena could not be obtained. Surely, then, a subpoena duces tecum would have been just as effective as a police raid in obtaining the production of the material sought by the Santa Clara County District Attorney.

The District Court and the Court of Appeals clearly recognized that if the affidavits submitted with a search warrant application should demonstrate probable cause to believe that a subpoena would be impractical, the magistrate must have the authority to issue a warrant. In such a case, by definition, a subpoena would not be adequate to protect the relevant societal interest. But they held, and I agree, that a warrant should issue only after the magistrate has performed the careful "balanc[ing] of these vital constitutional and societal interests." Branzburg v. Hayes, supra, at 710 [].

The decisions of this Court establish that a prior adversary judicial hearing is generally required to assess in advance any threatened invasion of First Amendment liberty. A search by police officers affords no timely opportunity for such a hearing, since a search warrant is ordinarily issued ex parte upon the affidavit of a policeman or prosecutor. There is no opportunity to challenge the necessity for the search until after it has occurred and the constitutional protection of the newspaper has been irretrievably invaded.

On the other hand, a subpoena would allow a newspaper, through a motion to quash, an opportunity for an adversary hearing with respect to the production of any material which a prosecutor might think is in its possession. ...

If, in the present litigation, the Stanford Daily had been served with a subpoena, it would have had an opportunity to demonstrate to the court what the police ultimately found to be true--that the evidence sought did not exist. The legitimate needs of government thus would have been served without infringing the freedom of the press.

III

Perhaps as a matter of abstract policy a newspaper office should receive no more protection from unannounced police searches than, say, the office of a doctor or the office of a bank. But we are here to uphold a Constitution. And our Constitution does not explicitly protect the practice of medicine or the business of banking from all abridgment by government. It does explicitly protect the freedom of the press.

Stevens J. (dissenting)

... The question is what kind of "probable cause" must be established in order to obtain a warrant to conduct an unannounced search for documentary evidence in the private files of a person not suspected of involvement in any criminal activity. The Court holds that a reasonable belief that the files contain relevant evidence is a sufficient justification. This holding rests on a misconstruction of history and of the Fourth Amendment's purposely broad language.

The Amendment contains two Clauses, one protecting "persons, houses, papers, and effects, against unreasonable searches and seizures," the other regulating the issuance of warrants: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." When these words were written, the procedures of the Warrant Clause were not the primary protection against oppressive searches. It is unlikely that the authors expected private papers ever to be among the "things" that could be seized with a warrant, for only a few years earlier, in 1765, Lord Camden had delivered his famous opinion denying that any magistrate had power to authorize the seizure of private papers. Because all such seizures were considered unreasonable, the Warrant Clause was not framed to protect against them.

Nonetheless, the authors of the Clause used words that were adequate for situations not expressly contemplated at the time. As Mr. Justice Black noted, the Amendment does not "attempt to describe with precision what was meant by its words 'probable cause' "; the words of the Amendment are deliberately "imprecise and flexible." And Mr. Justice Stewart, when confronted with the problem of applying the probable-cause standard in an unprecedented situation, observed that "[t]he standard of reasonableness embodied in the Fourth Amendment demands that the showing of justification match the degree of intrusion." Today, for the first time, the Court has an opportunity to consider the kind of showing that is necessary to justify the vastly expanded "degree of intrusion" upon privacy that is authorized by the opinion in Warden v. Hayden, supra.

In the pre-Hayden era warrants were used to search for contraband, weapons, and plunder, but not for "mere evidence." The practical effect of the rule prohibiting the issuance of warrants to search for mere evidence was to narrowly limit not only the category of objects, but also the category of persons and the character of the privacy interests that might be affected by an unannounced police search.

Just as the witnesses who participate in an investigation or a trial far outnumber the defendants, the persons who possess evidence that may help to identify an offender, or explain an aspect of a criminal transaction, far outnumber those who have custody of weapons or plunder. Countless law-abiding citizens--doctors, lawyers, merchants, customers, bystanders--may have documents in their possession that relate to an ongoing criminal investigation. The consequences of subjecting this large category of persons to unannounced police searches are extremely serious. The ex parte warrant procedure enables the prosecutor to obtain access to privileged documents that could not be examined if advance notice gave the custodian an opportunity to object. The search for the documents described in a warrant may involve the inspection of files containing other private matter. The dramatic character of a sudden search may cause an entirely unjustified injury to the reputation of the persons searched.

Of greatest importance, however, is the question whether the offensive intrusion on the privacy of the ordinary citizen is justified by the law enforcement interest it is intended to vindicate. Possession of contraband or the proceeds or tools of crime gives rise to two inferences: that the custodian is involved in the criminal activity, and that, if given notice of an intended search, he will conceal or destroy what is being sought. The probability of criminal culpability justifies the invasion of his privacy; the need to accomplish the law enforcement purpose of the search justifies acting without advance notice and by force, if necessary. By satisfying the probable-cause standard appropriate for weapons or plunder, the police effectively demonstrate that no less intrusive method of investigation will succeed.

Mere possession of documentary evidence, however, is much less likely to demonstrate that the custodian is guilty of any wrongdoing or that he will not honor a subpoena or informal request to produce it. In the pre-Hayden era, evidence of that kind was routinely obtained by procedures that presumed that the custodian would respect his obligation to obey subpoenas and to cooperate in the investigation of crime. These procedures had a constitutional dimension. For the innocent citizen's interest in the privacy of his papers and possessions is an aspect of liberty protected by the Due Process Clause of the Fourteenth Amendment. Notice and an opportunity to object to the deprivation of the citizen's liberty are, therefore, the constitutionally mandated general rule. An exception to that rule can only be justified by strict compliance with the Fourth Amendment. That Amendment flatly prohibits the issuance of any warrant unless justified by probable cause.

A showing of probable cause that was adequate to justify the issuance of a warrant to search for stolen goods in the 18th century does not automatically satisfy the new dimensions of the Fourth Amendment in the post-Hayden era. In Hayden itself, the Court recognized that the meaning of probable cause should be reconsidered in the light of the new authority it conferred on the police. The only conceivable justification for an unannounced search of an innocent citizen is the fear that, if notice were given, he would conceal or destroy the object of the search. Probable cause to believe that the custodian is a criminal, or that he holds a criminal's weapons, spoils, or the like, justifies that fear, and therefore such a showing complies with the Clause. But if nothing said under oath in the warrant application demonstrates the need for an unannounced search by force, the probable-cause requirement is not satisfied. In the absence of some other showing of reasonableness, the ensuing search violates the Fourth Amendment.

In this case, the warrant application set forth no facts suggesting that respondents were involved in any wrongdoing or would destroy the desired evidence if given notice of what the police desired. I would therefore hold that the warrant did not comply with the Warrant Clause and that the search was unreasonable within the meaning of the first Clause of the Fourth Amendment.

Branzburg v. Hayes

408 U.S. 665 (1972)

White J.

I

The writ of certiorari in No. 70--85, Branzburg v. Hayes and Meigs, brings before us two judgments of the Kentucky Court of Appeals, both involving petitioner Branzburg, a staff reporter for the Courier-Journal, a daily newspaper published in Louisville, Kentucky.

On November 15, 1969, the Courier-Journal carried a story under petitioner's by-line describing in detail his observations of two young residents of Jefferson County synthesizing hashish from marihuana, an activity which, they asserted, earned them about $5,000 in three weeks. The article included a photograph of a pair of hands working above a laboratory table on which was a substance identified by the caption as hashish. The article stated that petitioner had promised not to reveal the identity of the two hashish makers. Petitioner was shortly subpoenaed by the Jefferson County grand jury; he appeared, but refused to identify the individuals he had seen possessing marihuana or the persons he had seen making hashish from marihuana. A state trial court judge ordered petitioner to answer these questions and rejected his contention that the Kentucky reporters' privilege statute, [] the First Amendment of the United States Constitution, or ss 1, 2 and 8 of the Kentucky Constitution authorized his refusal to answer. Petitioner then sought prohibition and mandamus in the Kentucky Court of Appeals on the same grounds, but the Court of Appeals denied the petition. ...

The second case involving petitioner Branzburg arose out of his later story published on January 10, 1971, which described in detail the use of drugs in Frankfort, Kentucky. The article reported that in order to provide a comprehensive survey of the 'drug scene' in Frankfort, petitioner had 'spent two weeks interviewing several dozen drug users in the capital city' and had seen some of them smoking marihuana. A number of conversations with and observations of several unnamed drug users were recounted. Subpoenaed to appear before a Franklin County grand jury 'to testify in the matter of violation of statutes concerning use and sale of drugs,' petitioner Branzburg moved to quash the summons;. ...

The Court of Appeals once again denied the requested writs ....

II

Petitioners ... press First Amendment claims that may be simply put: that to gather news it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury, the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment. Although the newsmen in these cases do not claim an absolute privilege against official interrogation in all circumstances, they assert that the reporter should not be forced either to appear or to testify before a grand jury or at trial until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to a crime the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned by the disclosure. ... The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information. ...

The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime. Citizens generally are not constitutionally immune from grand jury subpoenas; and neither the First Amendment nor any other constitutional provision protects the average citizen from disclosing to a grand jury information that he has received in confidence. The claim is, however, that reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future. This asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them. ...

It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed. The Court has emphasized that '(t)he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.' Associated Press v. NLRB, 301 U.S. 103 []

... It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. []

Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathered in executive session, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded, and they may be prohibited from attending or publishing information about trials if such restrictions are necessary to assure a defendant a fair trial before an impartial tribunal. ...

It is thus not surprising that the great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation. At common law, courts consistently refused to recognize the existence of any privilege authorizing a newsman to refuse to reveal confidential information to a grand jury. []

Because its task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, [the grand jury's] investigative powers are necessarily broad. ... Hence, the grand jury's authority to subpoena witnesses is not only historic, []. ...

Grand juries address themselves to the issues of whether crimes have been committed and who committed them. Only where news sources themselves are implicated in crime or possess information relevant to the grand jury's task need they or the reporter be concerned about grand jury subpoenas. Nothing before us indicates that a large number or percentage of all confidential news sources falls into either category and would in any way be deterred by our holding that the Constitution does not, as it never has, exempt the newsman from performing the citizen's normal duty of appearing and furnishing information relevant to the grand jury's task.

The preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a product of their desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection.

It would be frivolous to assert--and no one does in these cases--that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news. ... The Amendment does not reach so far as to override the interest of the public in ensuring that neither reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to all other persons. ...

Thus, we cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it. Insofar as any reporter in these cases undertook not to reveal or testify about the crime he witnessed, his claim of privilege under the First Amendment presents no substantial question. The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not.

There remain those situations where a source is not engaged in criminal conduct but has information suggesting illegal conduct by others. Newsmen frequently receive information from such sources pursuant to a tacit or express agreement to withhold the source's name and suppress any information that the source wishes not published. Such informants presumably desire anonymity in order to avoid being entangled as a witness in a criminal trial or grand jury investigation. They may fear that disclosure will threaten their job security or personal safety or that it will simply result in dishonor or embarrassment.

The argument that the flow of news will be diminished by compelling reporters to aid the grand jury in a criminal investigation is not irrational, nor are the records before us silent on the matter. But we remain unclear how often and to what extent informers are actually deterred from furnishing information when newsmen are forced to testify before a grand jury. The available data indicate that some newsmen rely a great deal on confidential sources and that some informants are particularly sensitive to the threat of exposure and may be silenced if it is held by this Court that, ordinarily, newsmen must testify pursuant to subpoenas, but the evidence fails to demonstrate that there would be a significant construction of the flow of news to the public if this Court reaffirms the prior common-law and constitutional rule regarding the testimonial obligations of newsmen. Estimates of the inhibiting effect of such subpoenas on the willingness of informants to make disclosures to newsmen are widely divergent and to a great extent speculative. ...

Reliance by the press on confidential informants does not mean that all such sources will in fact dry up because of the later possible appearance of the newsman before a grand jury. The reporter may never be called and if he objects to testifying, the prosecution may not insist. Also, the relationship of many informants to the press is a symbiotic one which is unlikely to be greatly inhibited by the threat of subpoena: quite often, such informants are members of a minority political or cultural group that relies heavily on the media to propagate its views, publicize its aims, and magnify its exposure to the public.

Moreover, grand juries characteristically conduct secret proceedings, and law enforcement officers are themselves experienced in dealing with informers, and have their own methods for protecting them without interference with the effective administration of justice. There is little before us indicating that informants whose interest in avoiding exposure is that it may threaten job security, personal safety, or peace of mind, would in fact be in a worse position, or would think they would be, if they risked placing their trust in public officials as well as reporters. We doubt if the informer who prefers anonymity but is sincerely interested in furnishing evidence of crime will always or very often be deterred by the prospect of dealing with those public authorities characteristically charged with the duty to protect the public interest as well as his.

We note first that the privilege claimed is that of the reporter, not the informant, and that if the authorities independently identify the informant, neither his own reluctance to testify nor the objection of the newsman would shield him from grand jury inquiry, whatever the impact on the flow of news or on his future usefulness as a secret source of information. More important, it is obvious that agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy. ... [C]oncealment of crime and agreements to do so are not looked upon with favor. Such conduct deserves no encomium, and we decline now to afford it First Amendment protection by denigrating the duty of a citizen, whether reporter or informer, to respond to grand jury subpoena and answer relevant questions put to him.

Of course, the press has the right to abide by its agreement not to publish all the information it has, but the right to withhold news is not equivalent to a First Amendment exemption from the ordinary duty of all other citizens to furnish relevant information to a grand jury performing an important public function. Private restraints on the flow of information are not so favored by the First Amendment that they override all other public interests. ...

Neither are we now convinced that a virtually impenetrable constitutional shield, beyond legislative or judicial control, should be forged to protect a private system of informers operated by the press to report on criminal conduct, a system that would be unaccountable to the public, would pose a threat to the citizen's justifiable expectations of privacy, and would equally protect well-intentioned informants and those who for pay or otherwise betray their trust to their employer or associates. ...

We are admonished that refusal to provide a First Amendment reporter's privilege will undermine the freedom of the press to collect and disseminate news. But this is not the lesson history teaches us. As noted previously, the common law recognized no such privilege, and the constitutional argument was not even asserted until 1958. From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished. The existing constitutional rules have not been a serious obstacle to either the development or retention of confidential news sources by the press.

It is said that currently press subpoenas have multiplied, that mutual distrust and tension between press and officialdom have increased, that reporting styles have changed, and that there is now more need for confidential sources, particularly where the press seeks news about minority cultural and political groups or dissident organizations suspicious of the law and public officials. These developments, even if true, are treacherous grounds for a far-reaching interpretation of the First Amendment fastening a nationwide rule on courts, grand juries, and prosecuting officials everywhere. The obligation to testify in response to grand jury subpoenas will not threaten these sources not involved with criminal conduct and without information relevant to grand jury investigations, and we cannot hold that the Constitution places the sources in these two categories either above the law or beyond its reach. ...

Powell J., concurring

I add this brief statement to emphasize what seems to me to be the limited nature of the Court's holding. The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources. Certainly, we do not hold, as suggested in Mr. Justice STEWART's dissenting opinion, that state and federal authorities are free to 'annex' the news media as 'an investigative arm of government.'...

As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions. ...

The new constitutional rule endorsed by the dissenting opinion would, as a practical matter, defeat such a fair balancing and the essential societal interest in the detection and prosecution of crime would be heavily subordinated. ...

Stewart J. dissenting (Brennan and Marshall JJ. concurring)

The Court's crabbed view of the First Amendment reflects a disturbing insensitivity to the critical role of an independent press in our society. ...

I

The reporter's constitutional right to a confidential relationship with his source stems from the broad societal interest in a full and free flow of information to the public. ...

Enlightened choice by an informed citizenry is the basic ideal upon which an open society is premised, and a free press is thus indispensable to a free society. Not only does the press enhance personal self-fulfillment by providing the people with the widest possible range of fact and opinion, but it also is an incontestable precondition of self-government. The press 'has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences . . ..' Estes v. Texas, 381 U.S. 532 [].

As private and public aggregations of power burgeon in size and the pressures for conformity necessarily mount, there is obviously a continuing need for an independent press to disseminate a robust variety of information and opinion through reportage, investigation, and criticism, if we are to preserve our constitutional tradition of maximizing freedom of choice by encouraging diversity of expression. ...

A corollary of the right to publish must be the right to gather news. The full flow of information to the public protected by the free-press guarantee would be severely curtailed if no protection whatever were afforded to the process by which news is assembled and disseminated. ... News must not be unnecessarily cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist. ...

The right to gather news implies, in turn, a right to a confidential relationship between a reporter and his source. This proposition follows as a matter of simple logic once three factual predicates are recognized:

(1) newsmen require informants to gather news;

(2) confidentiality ... is essential to the creation and maintenance of a news-gathering relationship with informants; and

(3) an unbridled subpoena power ... will either deter sources from divulging information or deter reporters from gathering and publishing information.

It is obvious that informants are necessary to the news-gathering process as we know it today. If it is to perform its constitutional mission, the press must do far more than merely print public statements or publish prepared handouts. ...

It is equally obvious that the promise of confidentiality may be a necessary prerequisite to a productive relationship between a newsman and his informants. An officeholder may fear his superior; a member of the bureaucracy, his associates; a dissident, the scorn of majority opinion.

All may have information valuable to the public discourse, yet each may be willing to relate that information only in confidence to a reporter whom he trusts, either because of excessive caution or because of a reasonable fear of reprisals or censure for unorthodox views. The First Amendment concern must not be with the motives of any particular news source, but rather with the conditions in which informants of all shades of the spectrum may make information available through the press to the public. []

Finally, and most important, when governmental officials possess an unchecked power to compel newsmen to disclose information received in confidence, sources will clearly be deterred from giving information, and reporters will clearly be deterred from publishing it, because uncertainty about exercise of the power will lead to 'self-censorship.' []

The uncertainty arises, of course, because the judiciary has traditionally imposed virtually no limitations on the grand jury's broad investigatory powers. []

After today's decision, the potential informant can never be sure that his identity or off-the-record communications will not subsequently be revealed through the compelled testimony of a newsman. A public-spirited person inside government, who is not implicated in any crime, will now be fearful of revealing corruption or other governmental wrongdoing, because he will now know he can subsequently be identified by use of compulsory process. The potential source must, therefore, choose between risking exposure by giving information or avoiding the risk by remaining silent.

The reporter must speculate about whether contact with a controversial source or publication of controversial material will lead to a subpoena. In the event of a subpoena, under today's decision, the newsman will know that he must choose between being punished for contempt if he refuses to testify, or violating his profession's ethics and impairing his resourcefulness as a reporter if he discloses confidential information.

Again, the common sense understanding that such deterrence will occur is buttressed by concrete evidence. ... Surveys have verified that an unbridled subpoena power will substantially impair the flow of news to the public, especially in sensitive areas involving governmental officials, financial affairs, political figures, dissidents, or minority groups that require in-depth, investigative reporting. ... No evidence contradicting the existence of such deterrent effects was offered ... in the briefs here by ... by the respondents in Branzburg and Pappas.

The impairment of the flow of news cannot, of course, be proved with scientific precision, as the Court seems to demand. Obviously, not every news- gathering relationship requires confidentiality. And it is difficult to pinpoint precisely how many relationship do require a promise or understanding of nondisclosure. But we have never before demanded that First Amendment rights rest on elaborate empirical studies demonstrating beyond any conceivable doubt that deterrent effects exist; we have never before required proof of the exact number of people potentially affected by governmental action, who would actually be dissuaded from engaging in First Amendment activity.

Rather, on the basis of common sense and available information, we have asked, often implicitly, (1) whether there was a rational connection between the cause (the governmental action) and the effect (the deterrence or impairment of First Amendment activity), and (2) whether the effect would occur with some regularity, i.e., would not be de minimis. And, in making this determination, we have shown a special solicitude towards the 'indispensable liberties' protected by the First Amendment, [] for '(f)reedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.' [] Once this threshold inquiry has been satisfied, we have then examined the competing interests in determining whether there is an unconstitutional infringement of First Amendment freedoms. ...

To require any greater burden of proof is to shirk our duty to protect values securely embedded in the Constitution. We cannot await an unequivocal--and therefore unattainable--imprimatur from empirical studies. We can and must accept the evidence developed in the record, and elsewhere, that overwhelmingly supports the premise that deterrence will occur with regularity in important types of news-gathering relationships.

Thus, we cannot escape the conclusion that when neither the reporter nor his source can rely on the shield of confidentiality against unrestrained use of the grand jury's subpoena power, valuable information will not be published and the public dialogue will inevitably be impoverished.

II

Posed against the First Amendment's protection of the newsman's confidential relationships in these cases is society's interest in the use of the grand jury to administer justice fairly and effectively. The grand jury serves two important functions: 'to examine into the commission of crimes' and 'to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.' [] And to perform these functions the grand jury must have available to it every man's relevant evidence. []

Yet the longstanding rule making every person's evidence available to the grand jury is not absolute. The rule has been limited by the Fifth Amendment, the Fourth Amendment, and the evidentiary privileges of the common law. ...

[An exemption from the duty to testify] does not exist for the purely private interests of the newsman or his informant, nor even, at bottom, for the First Amendment interests of either partner in the news-gathering relationship. Rather, it functions to insure nothing less than democratic decisionmaking through the free flow of information to the public, and it serves, thereby, to honor the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.'[]

In striking the proper balance between the public interest in the efficient administration of justice and the First Amendment guarantee of the fullest flow of information, we must begin with the basic proposition that because of their 'delicate and vulnerable' nature, [] and their transcendent importance for the just functioning of our society, First Amendment rights require special safeguards. ...

Thus, when an investigation impinges on First Amendment rights, the government must not only show that the inquiry is of 'compelling and overriding importance' but it must also 'convincingly' demonstrate that the investigation is 'substantially related' to the information sought.

Governmental officials must, therefore, demonstrate that the information sought is clearly relevant to a precisely defined subject of governmental inquiry. [] They must demonstrate that it is reasonable to think the witness in question has that information. [] And they must show that there is not any means of obtaining the information less destructive of First Amendment liberties. []

These requirements, which we have recognized in decisions involving legislative and executive investigations, serve established policies reflected in numerous First Amendment decisions arising in other contexts. The requirements militate against vague investigations that, like vague laws, create uncertainty and needlessly discourage First Amendment activity. ...

Accordingly, when a reporter is asked to appear before a grand jury and reveal confidences, I would hold that the government must (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.

This is not to say that a grand jury could not issue a subpoena until such a showing were made, and it is not to say that a newsman would be in any way privileged to ignore any subpoena that was issued. Obviously, before the government's burden to make such a showing were triggered, the reporter would have to move to quash the subpoena, asserting the basis on which he considered the particular relationship a confidential one. ...

As noted above, given the grand jury's extraordinarily broad investigative powers and the weak standards of relevance and materiality that apply during such inquiries, reporters, if they have no testimonial privilege, will be called to give information about informants who have neither committed crimes nor have information about crime. It is to avoid deterrence of such sources and thus to prevent needless injury to First Amendment values that I think the government must be required to show probable cause that the newsman has information that is clearly relevant to a specific probable violation of criminal law.

Similarly, a reporter may have information from a confidential source that is 'related' to the commission of crime, but the government may be able to obtain an indictment or otherwise achieve its purposes by subpoenaing persons other than the reporter. ... Thus, it is to avoid deterrence of such sources that I think the government must show that there are no alternative means for the grand jury to obtain the information sought.

Both the 'probable cause' and 'alternative means' requirements would thus serve the vital function of mediating between the public interest in the administration of justice and the constitutional protection of the full flow of information. These requirements would avoid a direct conflict between these competing concerns, and they would generally provide adequate protection for newsmen. []

No doubt the courts would be required to make some delicate judgments in working out this accommodation. But that, after all, is the function of courts of law. Better such judgments, however difficult, than the simplistic and stultifying absolutism adopted by the Court in denying any force to the First Amendment in these cases. ...

Pell v. Procunier

417 U.S. 817 (1974)

Stewart J.

Mr. Justice Stewart delivered the opinion of the Court. These cases are here on cross-appeals from the judgement of a three-judge District Court in the Northern District of California. The plaintiffs in the District Court were four California prison inmates--Booker T. Hillery, Jr., John Larry Spain, Bobby Bly, and Michael Shane Guile--and three professional journalists--Eve Pell, Betty Segal, and Paul Jacobs. The defendants were Raymond K. Procunier, Director of the California Department of Corrections, and several subordinate officers in that department. The plaintiffs brought the suit to challenge the constitutionality, under the First and Fourteenth Amendments, of s 415.071 of the California Department of Corrections Manual, which provides that '(p)ress and other media interviews with specific individual inmates will not be permitted.'...

The facts are undisputed. Pell, Segal, and Jacobs each requested permission from the appropriate corrections officials to interview inmates Spain, Bly, and Guile, respectively. In addition, the editors of a certain periodical requested permission to visit inmate Hillery to discuss the possibility of their publishing certain of his writings and to interview him concerning conditions at the prison. Pursuant to s 415.071, these requests were all denied. The plaintiffs thereupon sued to enjoin the continued enforcement of this regulation. ...

The District Court granted the inmate plaintiffs' motion for summary judgment holding that s. 415.071, insofar as it prohibited inmates from having face-to- face communication with journalists, unconstitutionally infringed their First and Fourteenth Amendment freedoms. With respect to the claims of the media plaintiffs, the court granted the defendants' motion to dismiss. The court noted that '(e)ven under s 415.071 as it stood before today's ruling (that inmates' constitutional rights were violated by s 415.071) the press was given the freedom to enter the California institutions and interview at random,' and concluded 'that the even broader access afforded prisoners by today's ruling sufficiently protects whatever rights the press may have with respect to interviews with inmates.' 364 F.Supp. 196, 200. ...

I

[T]he inmate plaintiffs claim that s 415.071, by prohibiting their participation in face-to-face communication with newsmen and other members of the general public, violates their right of free speech under the First and Fourteenth Amendments. Although the constitutional right of free speech has never been thought to embrace a right to require a journalist or any other citizen to listen to a person's views, let alone a right to require a publisher to publish those views in his newspaper, [] we proceed upon the hypothesis that under some circumstances the right of free speech includes a right to communicate a person's views to any willing listener, including a willing representative of the press for the purpose of publication by a willing publisher.

We start with the familiar proposition that '(l)awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' Price v. Johnston, 334 U.S. 266, 285 (1948) []. In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system. ...

An important function of the corrections system is the deterrence of crime. The premise is that by confining criminal offenders in a facility where they are isolated from the rest of society, a condition that most people presumably find undesirable, they and others will be deterred from committing additional criminal offenses. This isolation, of course, also serves a protective function by quarantining criminal offenders for a given period of time while, it is hoped, the rehabilitative processes of the corrections system work to correct the offender's demonstrated criminal proclivity. Thus, since most offenders will eventually return to society, another paramount objective of the corrections system is the rehabilitation of those committed to its custody. Finally, central to all other corrections goals is the institutional consideration of internal security. ... It is in the light of these legitimate penal objectives that a court must assess challenges to prison regulations based on asserted constitutional rights of prisoners.

The regulation challenged here clearly restricts one manner of communication between prison inmates and members of the general public beyond the prison walls. But this is merely to state the problem, not to resolve it. For the same could be said of a refusal by corrections authorities to permit an inmate temporarily to leave the prison in order to communicate with persons outside. ... In order properly to evaluate the constitutionality of s 415.071, we think that the regulation cannot be considered in isolation but must be viewed in the light of the alternative means of communication permitted under the regulations with persons outside the prison. We recognize that there 'may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning'. ... But we regard the available 'alternative means of (communication as) a relevant factor' in a case such as this where 'we (are) called upon to balance First Amendment rights against (legitimate) governmental . . . interests.' []

One such alternative available to California prison inmates is communication by mail. Although prison regulations, until recently, called for the censorship of statements ... we recently held that 'the Department's regulations authorized censorship of prisoner mail far broader than any legitimate interest of penal administration demands,' and accordingly affirmed a district court judgment invalidating the regulations. Procunier v. Martinez, 416 U.S. 396 [] (1974). ... Thus, it is clear that the medium of written correspondence affords inmates an open and substantially unimpeded channel for communication with persons outside the prison, including representatives of the news media.

Moreover, the visitation policy of the California Corrections Department does not seal the inmate off from personal contact with those outside the prison. Inmates are permitted to receive limited visits from members of their families, the clergy, their attorneys, and friends of prior acquaintance. ... More importantly, however, inmates have an unrestricted opportunity to communicate with the press or any other member of the public through their families, friends, clergy, or attorneys who are permitted to visit them at the prison. Thus, this provides another alternative avenue of communication between prison inmates and persons outside the prison.

In Procunier v. Martinez, supra, we could find no legitimate governmental interest to justify the substantial restrictions that had there been imposed on written communication by inmates. When, however, the question involves the entry of people into the prisons for face-to-face communication with inmates, it is obvious that institutional considerations, such as security and related administrative problems, as well as the accepted and legitimate policy objectives of the corrections system itself, require that some limitation be placed on such visitations. So long as reasonable and effective means of communication remain open and no discrimination in terms of content is involved, we believe that, in drawing such lines, 'prison officials must be accorded latitude.' Cruz v. Beto, 405 U.S., at 321, 92 S.Ct., at 1081. ...

Although they would not permit prison officials to prohibit all expression or communication by prison inmates, security considerations are sufficiently paramount in the administration of the prison to justify the imposition of some restrictions on the entry of outsiders into the prison for face-to-face contact with inmates.

In this case the restriction takes the form of limiting visitations to individuals who have either a personal or professional relationship to the inmate--family, friends of prior acquaintance, legal counsel, and clergy. In the judgment of the state corrections officials, this visitation policy will permit inmates to have personal contact with those persons who will aid in their rehabilitation, while keeping visitations at a manageable level that will not compromise institutional security.

Such considerations are peculiarly within the province and professional expertise of corrections officials ...

Accordingly, in light of the alternative channels of communication that are open to prison inmates, we cannot say on the record in this case that this restriction on one manner in which prisoners can communicate with persons outside of prison is unconstitutional. ...

II

[The] media plaintiffs ask us to hold that the limitation on press interviews imposed by s 415.071 violates the freedom of the press. ... They contend that, irrespective of what First Amendment liberties may or may not be retained by prison inmates, members of the press have a constitutional right to interview any inmate who is willing to speak with them, in the absence of an individualized determination that the particular interview might create a clear and present danger to prison security or to some other substantial interest served by the corrections system. In this regard, the media plaintiffs do not claim any impairment of their freedom to publish. ... Instead, they rely on their right to gather news without governmental interference, which the media plaintiffs assert includes a right of access to the sources of what is regarded as newsworthy information.

We note at the outset that this regulation is not part of an attempt by the State to conceal the conditions in its prisons or to frustrate the press' investigation and reporting of those conditions. Indeed, the record demonstrates that, under current corrections policy, both the press and the general public are accorded full opportunities to observe prison conditions. The Department of Corrections regularly conducts public tours through the prisons for the benefit of interested citizens. In addition, newsmen are permitted to visit both the maximum security and minimum security sections of the institutions and to stop and speak about any subject to any inmates whom they might encounter. If security considerations permit, corrections personnel will step aside to permit such interviews to be confidential. Apart from general access to all parts of the institutions, newsmen are also permitted to enter the prisons to interview inmates selected at random by the corrections officials. By the same token, if a newsman wishes to write a story on a particular prison program, he is permitted to sit in on group meetings and to interview the inmate participants. In short, members of the press enjoy access to California prisons that is not available to other members of the public.

The sole limitation on newsgathering in California prisons is the prohibition in s 415.071 of interviews with individual inmates specifically designated by representatives of the press. This restriction is of recent vintage, having been imposed in 1971 in response to a violent episode that the Department of Corrections felt was at least partially attributable to the former policy with respect to face-to-face prisoner-press interviews. Prior to the promulgation of s 415.071, every journalist had virtually free access to interview any individual inmate whom he might wish. Only members of the press were accorded this privilege; other members of the general public did not have the benefit of such an unrestricted visitation policy. Thus, the promulgation of s 415.071 did not impose a discrimination against press access, but merely eliminated a special privilege formerly given to representatives of the press vis-a-vis members of the public generally.

In practice, it was found that the policy in effect prior to the promulgation of s 145.071 had resulted in press attention being concentrated on a relatively small number of inmates who, as a result, became virtual 'public figures' within the prison society and gained a disproportionate degree of notoriety and influence among their fellow inmates. Because of this notoriety and influence, these inmates often became the source of severe disciplinary problems. For example, extensive press attention to an inmate who espoused a practice of noncooperation with prison regulations encouraged other inmates to follow suit, thus eroding the institutions' ability to deal effectively with the inmates generally. Finally, in the words of the District Court, on August 21, 1971, '(d)uring an escape attempt at San Quentin three staff members and two inmates were killed. This was viewed by the officials as the climax of mounting disciplinary problems caused, in part, by its liberal posture with regard to press interviews, and on August 23 s 415.071 was adopted to mitigate the problem.' 364 F.Supp., at 198. ...

The constitutional guarantee of a free press 'assures the maintenance of our political system and an open society,' [] and secures 'the paramount public interest in a free flow of information to the people concerning public officials,' [] By the same token, "(a)ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." [] Correlatively, the First and Fourteenth Amendments also protect the right of the public to receive such information and ideas as are published. []

In Branzburg v. Hayes, 408 U.S. 665 [] (1972), the Court went further and acknowledged that 'news gathering is not without its First Amendment protections,' [] for 'without some protection for seeking out the news, freedom of the press could be eviscerated []. In Branzburg the Court held that the First and Fourteenth Amendments were not abridged by requiring reporters to disclose the identity of their confidential sources to a grand jury when that information was needed in the course of a good-faith criminal investigation. ...

In this case, the media plaintiffs contend that s 415.071 constitutes governmental interference with their newsgathering activities that is neither consequential nor uncertain, and that no substantial governmental interest can be shown to justify the denial of press access to specifically designated prison inmates. More particularly, the media plaintiffs assert that, despite the substantial access to California prisons and their inmates accorded representatives of the press--access broader than is accorded members of the public generally--face-to-face interviews with specifically designated inmates is such an effective and superior method of newsgathering that its curtailment amounts to unconstitutional state interference with a free press. We do not agree.

It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. ... Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathering in executive session, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded.' Branzburg v. Hayes, []. Similarly, newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the general public.

The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally. It is one thing to say that a journalist is free to seek out sources of information not available to members of the general public, that he is entitled to some constitutional protection of the confidentiality of such sources, [] and that government cannot restrain the publication of news emanating from such sources. [] It is quite another thing to suggest that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally. That proposition finds no support in the words of the Constitution or in any decision *835 of this Court. Accordingly, since s 415.071 does not deny the press access to sources of information available to members of the general public, we hold that it does not abridge the protections that the First and Fourteenth Amendments guarantee. ...

Powell J. (concurring in part and dissenting in part)

... I would hold that California's absolute ban against prisoner-press interviews impermissibly restrains the ability of the press to perform its constitutionally established function of informing the people on the conduct of their government. Accordingly, I dissent from the judgment of the Court. ... Here the constitutionality of the interview ban is challenged by prisoners as well as newsmen. Thus these appeals ... raise the question whether inmates as individuals have a personal constitutional right to demand interviews with willing reporters. Because I agree with the majority that they do not, I join Part I of the opinion of the Court.

In Saxbe v. Washington Post, 417 U.S. 843 (1974), a companion case, Powell J. stated the following in his dissenting opinion:

I believe that this sweeping prohibition of prisoner-press interviews substantially impairs a core value of the First Amendment. ... An informed public depends on accurate and effective reporting by the news media. No individual can obtain for himself the information needed for the intelligent discharge of his political responsibilities. ... In seeking out the news the press therefore acts as an agent of the public at large. It is the means by which the people receive that free flow of information and ideas essential to intelligent self-government. ...