The Branzburg myth: how secrecy and law distort history and misinform policy

Abstract This is an article about how secrecy and law distort history and misinform policy. Beginning in the 1960s and culminating with the Supreme Court’s 1972 ruling in Branzburg v Hayes, litigation and debate over the reporter’s privilege established the expectation that journalists resist subpoenas, warrants, and informal requests for evidence. However, archival research and records obtained in an Freedom of Information Act (FOIA) request reveal that journalists cooperated with federal criminal investigations after Branzburg. The case, symbolic of the rise of adversarial journalism, did not end compliance, but submerged it. Secrecy—overclassification of records, non-disclosure of grand jury proceedings, and the confidentiality of subpoenas—has allowed a narrow understanding of journalists’ role in a democracy to dominate case law, historical and legal scholarship, and public debate. Secrecy and law distorted the public record, then history, as salient moments of conflict disproportionately shaped collective memory, which misinformed scholarship and policy debate on news subpoenas. The hidden tradition of journalists cooperating with local, federal, and international authorities is, this article concludes, an argument for protecting press freedom.