How a Journalist’s Refusal to Testify Against the Black Panthers Changed First Amendment Rights
Earl Caldwell was a New York journalist who had just arrived back in New York at the beginning of 1968. Times‘ offices in New York City from a reporting trip in California. According to him, he was sitting at his desk only for five minutes when the receptionist said that two men were in the office. These men were part of the FBI.
Agents wanted more information about Caldwell’s story written just for them TimesThe Black Panthers’ weaponry and tactics. Caldwell, who was just recently given the assignment to protect the Panthers during the TimesHis first article about the group was the one in question. The agents told him that they wanted more information about the guns he had written about—and more insight into the Panthers in general.
“I knew this was the beginning of something real,” Caldwell tells TIME of the meeting, in which he told the agents that everything they needed to know was in the newspaper. One year later, Caldwell was summoned by the Federal Grand Jury to give evidence about all of his knowledge concerning the Panthers including any confidential sources.
Caldwell, at this point in his life, was already an icon for Black journalists.
The only journalist on the Memphis scene was Caldwell. Dr. Martin Luther King was assassinated April 4, 1968. King’s murder came during Caldwell’s first assignment embedded with him; this was also the first time the TimesThe civil rights leader had requested a Black journalist to report on the story.
“[I told my editor] I didn’t want to be in the South,” Caldwell remembers, citing the region’s well-documented history of racial prejudice and violence, “but I also didn’t want to pass up an opportunity to cover King. It was surreal being there and seeing all of this unfold.”
After King’s assassination, Caldwell went on to cover the race riots that ensued across the country for the Times. He began covering the Black Panthers in San Francisco during that time. The organization was based out of California. He covered it for more than a year.
“The Panthers were really good at getting their message out there,” Caldwell says. “They gave me good access because they wanted people to know what they were about.” He covered a wide range of stories about the Panthers, including their outreach work, clashes with law enforcement and confrontations with other Black nationalist groups.
“I really got in good with them and was proud of the stories I was able to tell,” he says.
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However, as Caldwell’s reporting on the Panthers deepened, so did the FBI’s interest in his work. They continued to ask for meetings with Caldwell, in an effort to source information on the group.
Caldwell refused to give up and stood firm. In 2006, Caldwell was interviewed by FrontlineCaldwell claims that Caldwell is right about the Times hired a law firm to defend the news organization but he soon grew concerned about the firm’s position on his case, as he came to understand that they were considering handing some of his information over to the FBI. Caldwell said that he wasn’t going to spy on the federal government. “It goes against everything you stand for in journalism,” he adds.
So when Caldwell received the FBI’s subpoena, he consulted with other Black journalists and eventually sought counsel from the NAACP Legal Defense Fund who put him in touch with constitutional lawyer Anthony Amsterdam. On his own accord, he refused to appear before the grand jury—and Amsterdam appeared for him. He said that he did not need to be present and that the First Amendment protected sources of information and the reporting process. Amsterdam also argued the importance of Black journalists’ work, and “how we could bring back an answer and tell America about these questions that were so large at that time,” Caldwell recalled to Frontline.
The case made its way to the United States Court of Appeals, which ruled in Caldwell’s favor and agreed that he did not have to share his confidential information with the federal government. However, the victory was short lived as Caldwell appealed to the Supreme Court. The Court took up the case in conjunction with two other First Amendment cases, in February 1972.
Paul Pappas (a Massachusetts TV reporter) was involved in these cases. He had been covering the Black Panthers as well and refused to provide information to the local police. Paul Branzburg was a reporter with the Louisville Courier-JournalHe had been reporting on the production of hashish, or hash. Branzburg interviewed drug-related people, but didn’t reveal their identities as part of his reporting.—Caldwell, and Pappas also refused, but were called by law enforcement personnel to make a grand jury.
In the court’s eventual Branzburg v. HayesSupreme Court reversed the ruling and it was withdrawn on June 29, 1972. In the majority opinion, Justice Byron White wrote that it was inappropriate “to grant newsmen a testimonial privilege that other citizens do not enjoy.” But the justices were split 5-4 on the issueThe opposition argues that the government has no right to use the media to perform its duties.
“The case had a fairly large impact on the journalism field because it meant that journalists do not have special protection,” explains Robert Richards, a media law professor at Penn State. “They weren’t looked at as having more privilege than the average citizen when it came to grand jury testimony.”
Caldwell was given the chance to go to prison, although the federal government did not pursue him. He worked at the firm. Times, covering the 1970 trial of Angela Davis, the “Atlanta Child Murders” and Rev. Jesse Jackson’s 1984 run for president. He was the first Black journalist to own a column in a major newspaper. New York Daily News.
“He really did some amazing reporting throughout his career. If you read his stuff, it’s very cinematic,” Wayne Dawkins, a former reporter and colleague of Caldwell’s at Hampton University. “He set a standard for a lot of us.”
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Caldwell’s case, though not the most well-known, was a very significant case for journalists and First Amendment rights.
“After this case, there was a movement throughout the U.S. to create shield laws to protect journalists,” Richards says. These laws are in effect in 40 of the 50 states. “I think the concern is how you define a journalist, especially today. A lot of states define it differently.”
“While smaller court circuits have taken care in balancing the reporter’s privilege with compelling subpoenas, journalists haven’t had as much success in the federal courts,” a 2012 Indiana University analysis of the Branzburg v. Hayes The ruling was argued. “Today, media has evolved to include the Internet and ‘journalist’ is not so easily defined. Thus, recognizing a reporter’s privilege in an age when reporting is commonly accessible demands a more nuanced interpretation.”
Caldwell’s stance to protect the Black Panthers and stay true to his responsibilities as a reporter is particularly relevant—and resonant—in the context of the racial reckoning America has faced in recent years. Caldwell’s role of objective observer for the Black Panthers was not diminished by the fact that he is a Black man living in a country with racially diverse issues that Caldwell had to deal with.
“These are Black people arguing for Black rights… It’s just like Martin Luther King Jr. He’s up on that platform talking about the rights of black people,” Caldwell told Frontline. “I can’t separate myself from that because I’m Black, and he’s talking about my rights. I’m a reporter. But reporters are human beings, so we’re faced with these same things every day.”