Application of Earl Caldwell and New York Times Company for an Order Quashing Grand Jury Subpoenas. Earl Caldwell v. United States

Earl Caldwell appeals from an order holding him in contempt of court for disregard of an order directing him to appear before the Grand Jury of the United States District Court for the Northern District of California pursuant to a subpoena issued by the Grand Jury.

Appellant is a black news reporter for the New York Times. He has become a specialist in the reporting of news concerning the Black Panther Party. The Grand Jury is engaged in a general investigation of the Black Panthers and the possibility that they are engaged in criminal activities contrary to federal law.

In order to protect First Amendment interests asserted by appellant, the District Court order of attendance, which appellant disregarded, expressly granted appellant the privilege of silence as to certain matters until such time as the Government should demonstrate “a compelling and over-riding national interest in requiring Mr. Caldwell’s testimony which cannot be served by any alternative means.” This protective order provided :

Appellant contends that the privilege granted by the District Court will not suffice to protect the First Amendment interests at stake; that unless a specific need for his testimony…

(concurring) :

This case presents narrow issues in the “delicate and difficult” task of reconciling the First Amendment guarantee of freedom of the press with the fair administration of justice, including the broad investigatory power of a grand jury and the obligation of a witness to testify. While perhaps unnecessary for a determination of this appeal, it is helpful, in my opinion, to note the guidelines for resolving conflicts in this sensitive area, as summarized by Judge, now *1091 Mr. Justice, Stewart, in Garland v. Torre, 259 F.2d 545, 548-549 (2d Cir.) cert. denied 358 U.S. 910 , 79 S.Ct. 237 , 3 L.Ed.2d 231 (1958):

As stated in the court’s opinion (note 6) Garland v. Torre was a civil action for libel. 1 The obligation to appear and testify is even stronger and the scope of inquiry is broader in grand jury investigations. 2

The First Amendment rights of appellant were recognized fully by Judge Zirpoli in providing for the protective order discussed in the court’s opinion. While not conceding the validity or propriety of the qualified privilege granted appellant, the Government did not seek review of that order on this appeal. 3

*1092 The order entered by the district…

434 F.2d 1081 Application of Earl Caldwell and New York Times Company for an Order Quashing Grand Jury Subpoenas. Earl CALDWELL, Appellant, v. UNITED STATES of America, Appellee. No. 26025. United States Court of Appeals, Ninth Circuit. November 16, 1970. Anthony G. Amsterdam, Stanford, Cal. (argued); Chas. S. Ralston, San Francisco, Cal., and William B. Turner, NAACP Legal Defense, San Francisco, Cal., for appellant. Sidney M. Glazer (argued), Victor C. Woerheide, Richard L. Darst, Criminal Division, U. S. Dept. of Justice, Washington, D. C.; James L. Browning, Jr. U. S. Atty., San Francisco, Cal. for appellee. Melvin L. Wulf, Joel M. Gora, American Civil Liberties Union, New York City, Paul N. Halvonik, Charles C. Marson, ACLU, San Francisco, Cal; A. L. Wirin, Fred Okrand, Lawrence R. Sperber, ACLU, Los Angeles, Cal., Leo P. Larkin, Jr., Stanley Godofsky, John J. Sheehy, of Royall, Koegel & Wells, New York City, for The Washington Post Company and Newsweek, Inc., Irwin Karp, New Jersey, New Jersey, for Authors League of America, Inc.; John B. Bates, for New York Times; John Bates, of Pillsbury, Madison, & Sutro; Morris M. Doyle of McCutchen, Doyle, Brown & Enerson,…