CRS Annotated Constitution

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Government as Regulator of the Electoral Process: Lobbying.— Inasmuch as legislators may be greatly dependent upon representations made to them and information supplied to them by interested parties, legislators may desire to know what the real interests of those parties are, what groups or persons they represent, and other such information. But everyone is constitutionally entitled to write his congressman or his state legislator, to encourage others to write or otherwise contact legislators, and to make speeches and publish articles designed to influence legislators. Conflict is inherent. In the Federal Regulation of Lobbying Act,171 Congress by broadly phrased and ambiguous language seemed to require detailed reporting and registration by all persons who solicited, received, or expended funds for purposes of lobbying, that is to influence congressional action directly or indirectly. In United States v. Harriss,172 the Court, stating that it was construing the Act to avoid constitutional doubts,173 interpreted covered lobbying as meaning only direct attempts to influence legislation through direct communication with members of Congress.174 So construed, the Act was constitutional; Congress had “merely provided for a modicum of information from those who for hire attempt to influence legislation or who collect or spend funds for that purpose,” and this was simply a measure of “self–protection.”175

Other statutes and governmental programs affect lobbying and lobbying activities. It is not impermissible for the Federal Government to deny a business expense tax deduction for money spent to defeat legislation which would adversely affect one’s business.176 But the antitrust laws may not be applied to a concert of business enterprises that have joined to lobby the legislative branch to pass and the executive branch to enforce laws which would have a det[p.1102]rimental effect upon competitors, even if the lobbying was conducted unethically.177 On the other hand, allegations that competitors combined to harass and deter others from having free and unlimited access to agencies and courts by resisting before those bodies all petitions of competitors for purposes of injury to competition are sufficient to implicate antitrust principles.178

Government as Regulator of Labor Relations.—Numerous problems may arise in this area,179 but the issue here considered is the balance to be drawn between the free speech rights of an employer and the statutory rights of his employees to engage or not engage in concerted activities free of employer coercion, which may well include threats or promises or other oral or written communications. The Court has upheld prohibitions against employer interference with union activity through speech so long as the speech is coercive,180 and that holding has been reduced to statutory form.181 Nonetheless, there is a First Amendment tension in this area, with its myriad variations of speech forms that may be denominated “predictions,” especially since determination whether particular utterances have an impermissible impact on workers is vested with an agency with no particular expertise in the protection of freedom of expression.182

Government as Investigator: Journalist’s Privilege.—News organizations have claimed that the First Amendment status of the press compels a recognition by government of an exception to the ancient rule that every citizen owes to his government a duty to give what testimony he is capable of giving.183 The argument for a limited exemption to permit journalists to conceal their sources and to keep confidential certain information they obtain[p.1103]and choose at least for the moment not to publish was rejected in Branzburg v. Hayes184 by a closely divided Court. “Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering which is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.”185 Not only was it uncertain to what degree confidential informants would be deterred from providing information, said Justice White for the Court, but the conditional nature of the privilege claimed might not mitigate the deterrent effect, leading to claims for an absolute privilege. Confidentiality could be protected by the secrecy of grand jury proceedings and by the experience of law enforcement officials in themselves dealing with informers. Difficulties would arise as well in identifying who should have the privilege and who should not. But the principal basis of the holding was that the investigation and exposure of criminal conduct was a governmental function of such importance that it overrode the interest of newsmen in avoiding the incidental burden on their newsgathering activities occasioned by such governmental inquiries.186


The Court observed that Congress and the States were free to develop by statute privileges for reporters as narrowly or as broadly as they chose; while efforts in Congress failed, many States have enacted such laws.187 The assertion of a privilege in civil cases has met with mixed success in the lower courts, the Supreme Court having not yet confronted the issue.188

Nor does the status of an entity as a newspaper (or any other form of news medium) protect it from issuance and execution on probable cause of a search warrant for evidence or other material properly sought in a criminal investigation.189 The press had argued that to permit searches of newsrooms would threaten the ability to gather, analyze, and disseminate news, because searches would be disruptive, confidential sources would be deterred from coming forward with information because of fear of exposure, reporters would decline to put in writing their information, and internal editorial deliberations would be exposed. The Court thought that First Amendment interests were involved, although it seemed to doubt that the consequences alleged would occur, but it observed that the built–in protections of the warrant clause would adequately protect those interests and noted that magistrates could guard against abuses when warrants were sought to search newsrooms by requiring particularizations of the type, scope, and intrusiveness that would be permitted in the searches.190


171 Ch. 753, 60 812, 839 (1946), 2 U.S.C. §§ 261 – 70.
172 347 U.S. 612 (1954) .
173 Id. at 623.
174 Id. at 617–624.
175 Id. at 625. Justices Douglas, Black, and Jackson dissented. Id. at 628, 633. They thought the Court’s interpretation too narrow and would have struck the statute down as being too broad and too vague, but would not have denied Congress the power to enact narrow legislation to get at the substantial evils of the situation. See also United States v. Rumely, 345 U.S. 41 (1953) .
176 Cammarano v. United States, 358 U.S. 498 (1959) .
177 Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961) . See also UMW v. Pennington, 381 U.S. 657, 669–71 (1965) .
178 California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) . Justices Stewart and Brennan thought that joining to induce administrative and judicial action was as protected as the concert in Noerr but concurred in the result because the complaint could be read as alleging that defendants sought to forestall access to agencies and courts by plaintiffs. Id. at 516.
179 E.g., the speech and associational rights of persons required to join a union, Railway Employees Dep’t v. Hanson, 351 U.S. 225 (1956) ; International Ass’n of Machinists v. Street, 367 U.S. 740 (1961) ; and see Abood v. Detroit Bd. of Educ. 431 U.S. 209 (1977) (public employees), restrictions on picketing and publicity campaigns, Babbitt v. United Farm Workers, 442 U.S. 289 (1979) , and application of collective bargaining laws in sensitive areas, NLRB v. Yeshiva Univ., 444 U.S. 672 (1980) (faculty collective bargaining in private universities); NLRB v. Catholic Bishop, 440 U.S. 490 (1979) (collective bargaining in religious schools).
180 NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941) .
181 Ch. 120, 61 Stat, 142, Sec. 8(c) (1947), 29 U.S.C. Sec. 158 (c).
182 Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 616–20 (1969) .
183 8 J. Wigmore, Evidence 2192 (3d ed. 1940). See Blair v. United States, 250 U.S. 273, 281 (1919) ; United States v. Bryan, 339 U.S. 323, 331 (1950) .
184 408 U.S. 665 (1972) . “The claim is, however, that reporters are exempt from these obligations because if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future. This asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect and to require a privileged position for them.” Id. at 682.
185 Id. at 690–91.
186 Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist joined the Court’s opinion. Justice Powell also submitted a concurring opinion in which he suggested that newsmen might be able to assert a privilege of confidentiality if in each individual case they demonstrated that responding to the governmental inquiry at hand would result in a deterrence of First Amendment rights and privilege and that the governmental interest asserted was entitled to less weight than their interest. Id. at 709. Justice Stewart dissented, joined by Justices Brennan and Marshall, and argued that the First Amendment required a privilege which could only be overcome by a governmental showing that the information sought is clearly relevant to a precisely defined subject of inquiry, that it is reasonable to think that the witness has that information, and that there is not any means of obtaining the information less destructive of First Amendment liberties. Id. at 725. Justice Douglas also dissented. Id. at 711.
The courts have construed Branzburg as recognizing a limited privilege which must be balanced against other interests. See In re Pennington, 224 Kan. 573, 581 P.2d 812 (1978), cert. denied, 440 U.S. 929 (1979) ; Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979); United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980); cf. United States v. Criden, 633 F.2d 346 (3d Cir. 1980).
187 At least 26 States have enacted some form of journalists’ shield law. E.g., Cal. Evid. Code Sec. 1070; N.J. Rev. Stat. 2A:84A–21, 21a, –29. The reported cases evince judicial hesitancy to give effect to these statutes. See, e.g., Farr v. Pitchess, 522 F. 2d 464 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976) ; Rosato v. Superior Court, 51 Cal. App. 3d 190, 124 Rptr. 427 (1975), cert. denied, 427 U.S. 912 (1976) . The greatest difficulty these laws experience, however, is the possibility of a constitutional conflict with the Fifth and Sixth Amendment rights of criminal defendants. See Matter of Farber, 78 N.J. 259, 394 A. 2d 330, cert. denied sub. nom., New York Times v. New Jersey, 439 U.S. 997 (1978) . See also New York Times v. Jascalevich, 439 U.S. 1301, 1304, 1331 (1978) (applications to Circuit Justices for stay), and id. at 886 (vacating stay).
188 E.g., Baker v. F. & F. Investment Co., 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966 (1973) ; Democratic National Comm. v. McCord, 356 F. Supp. 1394 (D.D.C. 1973).
189 Zurcher v. Stanford Daily, 436 U.S. 547, 563–67 (1978) . Justice Powell thought it appropriate that “a magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment” when he assesses the reasonableness of a warrant in light of all the circumstances. Id. at 568 (concurring). Justices Stewart and Marshall would have imposed special restrictions upon searches when the press was the object, id. at 570 (dissenting), and Justice Stevens dissented on Fourth Amendment grounds. Id. at 577.
190 Congress has enacted the Privacy Protection Act of 1980, Pub. L. No. 96–440, 94 Stat. 1879 , 42 U.S.C. Sec. 2000aa , to protect the press and other persons having material intended for publication from federal or state searches in specified circumstances, and creating damage remedies for violations.
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