Monday, March 30, 2009

Easton on Earl Caldwell, the NY Times, and the Quest for a Testimonial Privilege

A House Divided: Earl Caldwell, the New York Times, and the Quest for a Testimonial Privilege is a new article by Eric Easton, University of Baltimore School of Law. It is forthcoming in the Utah Law Review. Here's the abstract:
In the 1972 case of Branzburg v. Hayes, the Supreme Court held that the First Amendment does not protect journalists who refuse to reveal their confidential sources or news gathering product in response to a federal grand jury subpoena. That decision has remained vital for 35 years and has reverberated through a number of recent high-profile cases. Despite some form of protection in nearly every state court, reporters haled before a federal judge may have no recourse save prison. Devastating as Branzburg has been for the so-called journalist's privilege, its negative impact has been far broader. Branzburg is one of Supreme Court's earliest news gathering decisions and arguably the most influential.
While the press has been very successful in persuading the courts to find First Amendment protection for its editorial product, it has been far less successful with regard to protection for news gathering. The Branzburg precedent epitomizes the frustration of the press in attempting to secure First Amendment, or even statutory, protection for news gathering, and this article explores one of the primary reasons for that failure: the inability of the diverse elements that comprise the press to agree on the appropriate scope of such protection. In particular, the article tells the little-known story of the dispute between the New York Times and its reporter, Earl Caldwell, whose pursuit of a testimonial privilege ultimately led to the Branzburg
decision.
A bio of Caldwell, who refused to provide police with information about his Black Panther sources, is here. An interview is here, and a photo of Caldwell testifying before Congress in 1973 is here. Photo credit.

2 comments:

Harald said...

Hi, it is wonderful that you post a credit for the photo of Earl Caldwell on your blog. Unfortunately you credit the guy who stole it originally from my flickr site:

http://www.flickr.com/photos/hsr/2207355343/in/set-72157603763743979/

Could you please chance that accordingly.
Thanks

Harald

Mary L. Dudziak said...

The link is corrected. Thanks to Harald for pointing this out and directing me to the appropriate source.