In Re Roche
Justice Brennan, acting alone as Circuit Justice, continued a stay that kept a television reporter out of jail for refusing to identify confidential sources in a Massachusetts judge's misconduct proceeding.
The order does not decide whether reporters have a First Amendment right to protect sources; it simply pauses the contempt penalty while the reporter asks the full Court to take up his case.
“Without such a stay, applicant must either surrender his secrets (and moot his claim of right to protect them) or face commitment to jail.”
Explaining the irreparable harm the reporter faced without a stay.
How it got here: A single justice of the Massachusetts Supreme Judicial Court held the reporter in civil contempt; the full court affirmed, and the reporter sought a stay from the Supreme Court pending a certiorari petition.
The Case in Depth
What happened
A television reporter investigated alleged misconduct by a Massachusetts state judge, prompting a formal disciplinary proceeding. During that proceeding, the judge sought to depose the reporter and learn the identities of confidential sources among the witness list. The reporter, invoking a newsman's privilege, agreed to discuss sources who were independently identified but refused to name undisclosed confidential sources.
The question before the Court
Could a television reporter be jailed for civil contempt for refusing to name confidential sources while he asked the Supreme Court to review the order?
Why it matters
The reporter avoids jail while his appeal proceeds, and the judge under investigation can still get the information by deposing other witnesses in the meantime. The order also signals how the Court's emergency stay process weighs reporters' claims of source confidentiality against the practical needs of litigants.
What changes now
The stay of the contempt order remains in place while the reporter files and pursues a petition for certiorari. This is not a final ruling on whether reporters have a constitutional privilege to protect sources; if the Court denies certiorari or later rules against the reporter, the contempt sanction could take effect. The judge under investigation may still gather the same information by deposing other witnesses in the meantime.
What this does not decide
This order does not resolve whether the First Amendment gives reporters a privilege to withhold confidential sources. Justice Brennan only decided that a stay was warranted pending the Court's decision on whether to hear the case, based on the harms involved, not on the merits of the underlying privilege claim.
Concurrences and dissents
How the Justices voted
Majority (1). Justice Brennan (author).
How the Court got there
The legal reasoning, step by step
- Justice Brennan applied the four-part standard for a Circuit Justice deciding a stay application: a reasonable probability four Justices will vote to hear the case, a fair prospect the decision below is wrong, likely irreparable harm without a stay, and a balance of equities favoring a stay.
- He reviewed existing law on a reporter's ability to withhold sources, noting Branzburg v. Hayes rejected an absolute privilege but that several Justices, including dissenters and a concurring Justice, recognized at least some First Amendment interest in protecting newsgathering confidences.
- Because four Justices had previously shown sympathy to some First Amendment protection for source confidentiality, he found it reasonably likely that four Justices would vote to hear this case and a fair prospect the Court would reverse.
- He found the case unusually strong for invoking any such privilege because the judge seeking the information had another practical way to get it — deposing the other witnesses — so the reporter's silence was not blocking access to the facts, only adding inconvenience.
- Weighing the harms, he concluded that jailing the reporter for contempt was a far greater and less reversible harm than the modest inconvenience to the judge of gathering the same information through depositions of other witnesses.
- Balancing these factors, he determined that continuing the stay of the contempt order was warranted while the reporter's certiorari petition was pending.
Doctrinal impact
Cases affected by this decision
Distinguishes Branzburg v. Hayes (408 U. S. 665)
Notes it rejected an absolute privilege but says it left room for some First Amendment protection here.
Distinguishes New York Times Co. v. Jascalevich (439 U. S. 1317)
Denial of a stay there turned on different facts involving in-camera judicial inspection of documents.