The opinion of the court was delivered by: RICHEY
Before the Court is the motion of Timothy S. Robinson, a reporter for The Washington Post, to quash a subpoena duces tecum issued upon application of the defendants in this case. The subpoena commands the reporter to appear to testify at the suppression hearing in this case and to bring with him
any and all notes, writings, and materials of any kind pertaining to: the Church of Scientology, the searches of the Church of Scientology premises on July 8, 1977, the documents seized from the premises of the Church of Scientology on July 8, 1977, etc.; any and all books, outlines of books or other writings regarding the searches of the Church of Scientology on July 8, 1977, including any material received from anyone else regarding the searches of the Church of Scientology premises on July 8, 1977.
The reporter moves to quash the subpoena on the ground that it seeks the disclosure of material and information that is protected by the first amendment.
For the reasons that follow, the Court quashes the subpoena.
The Court is currently conducting a hearing on the motion of the defendants to suppress evidence seized from two Church of Scientology premises in Los Angeles, California on July 8, 1977. On the day before the search, officials of the Federal Bureau of Investigation (hereinafter, "FBI") and Assistant United States Attorneys for the District of Columbia conducted a briefing to prepare the agents on the nature of their duties the following day. The defendants contend that it is crucial for them to obtain knowledge of the substance of the pre-search briefing. Further, according to the defendants, the reporter is an indispensable witness on this subject.
According to the defendants, the reporter has written a proposal for a book concerning the Church of Scientology which contains a detailed discussion of the FBI searches in Los Angeles on July 8, 1977, and the briefings which preceded them. In support of this contention, the defendants have filed with the Court a copy of what purports to be the first five pages of the reporter's book proposal. In addition, the defendants rely on a cover page entitled "About the author," which provides in part:
This would be his first book, a nonfiction work about the federal government's investigation into the Church of Scientology. Robinson has numerous major sources in several government agencies, contacts with defectors from the church, and contacts with current church members from whom he would receive cooperation.
It is the defendants' contention that the reporter is indispensable because his proposal purports to be a nonfiction account based, at least in part, on government sources.
According to the defendants, the first chapter of the book deals directly with the details of the manner in which the government planned to execute the warrants and the briefings of the agents. The defendants have included excerpts which they contend demonstrate that the reporter has accurate inside information of vital occurrences during the briefings.
Finally, the defendants contend that their attempts to obtain information with respect to the briefings have been frustrated. According to the defendants, the FBI agents called by the defendants have been uniformly vague in recalling particulars of the briefing, only one agent took notes, no recording of the briefing was made, and the Court has quashed subpoenas of two of the participants namely, Assistant United States Attorneys Banoun and Schuelke. Accordingly, the defendants contend that they have exhausted alternative sources for the information, and must have access to the reporter and his notes.
II. NEWS GATHERING BY THE PRESS IS PROTECTED BY A QUALIFIED FIRST AMENDMENT PRIVILEGE.
The United States Supreme Court confronted the issue of a reporter's privilege on only a single occasion: Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972). The issue before the Court in Branzburg was whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the first amendment. The Court held that it did not. However, the vote which determined the outcome in Branzburg was cast by Justice Powell, and his concurring opinion has inspired the courts to engage in a case-by-case balancing of interests in order to determine whether a reporter will be required to testify. See Bursey v. United States, 466 F.2d 1059, 1083 (9th Cir. 1972); ...