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The United States Supreme Court has held that the grand jury's authority to subpoena witnesses is not only historic but essential to its task. The grand juries and the courts operate under the longstanding principle that the public has a right to every man's evidence, except for those persons protected by constitutional, common law, or statutory privilege. The Court has noted that the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. The Court has expressly declined to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. The Court has stated that it could not 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 a crime than to do something about it.
After news media accounts reported that a former ambassador's wife worked for the CIA, the Department of Justice began investigating whether government employees had violated federal law by the unauthorized disclosure of the identity of a CIA agent. The special counsel appointed to investigate issued subpoenas to appellants, seeking testimony and documents related to articles they had written and published concerning the ambassador's wife. After they refused to comply, the district court held them in contempt, holding that their refusal was without just cause.
Did the First Amendment afford journalists a constitutional right to conceal their confidential sources even against the subpoenas of grand juries?
The court held that appellants' claim that the information they concealed was protected by a reporter's privilege under the First Amendment was meritless because the United States Supreme Court had previously rejected the existence of such a privilege. The court held that even if a common law privilege existed, it did not warrant reversal. The court held that appellants' due process rights were not violated by the special counsel's refusal to provide them access to his secret evidentiary submissions in support of their subpoenas.