Reprinted with permission from Communications Lawyer, August 28, 2025.
Lee Levine is a retired lawyer who represented journalists and news organizations for more than four decades. Isabella Salom'o Nascimento is a senior associate in Ballard Spahr LLP's Media & Entertainment Law group. She began her career as a civil rights attorney with the ACLU of Minnesota. The authors wish to thank Helen Lampe, a student at American University's Washington College of Law, for her substantial assistance.
It's not like we weren't warned. "Go to the reporter and ask him/her" to disclose their confidential sources, Donald Trump wrote in 2023. "If not given the answer, put whoever in jail until the answer is given. You might add the publisher and editor to the list."1
A year earlier, the once and future president described the consequences he foresaw for a journalist who went to jail rather than betray a source: "When the reporter learns that he's going to be married in two days to a certain prisoner that's extremely strong, tough and mean, he will say . . . 'You know, I think I'm going to give you the information. Here's the leaker. Get me the hell out of here.'"2
In late 2024, President-elect Trump feared that the Senate might vote to join the House in passing the PRESS Act, sweeping legislation designed to insulate journalists and news organizations from subpoenas. His instruction to Senate Republicans was blunt: "KILL THIS BILL." One of them, Senator Tom Cotton (R-AR), did just that.3
In March, Tulsi Gabbard, the president's director of national intelligence, launched investigations designed to hold "accountable" government officials who leaked information to the press. In her public announcement, Gabbard pointed specifically to news reports in the Washington Post and by NBC News that contained information provided by confidential government sources about the Iran/Israel conflict and U.S./Russia relations, respectively.4
The following month, Attorney General Pam Bondi formally scrapped Department of Justice (DOJ) guidelines, put in place by her predecessor Merrick Garland, that had stripped federal prosecutors of the power to subpoena journalists in most circumstances. She did so, she said, to address "growing concerns about federal government employees intentionally disseminating confidential, privileged or otherwise protected information to the media."5
More recently, Defense Secretary Pete Hegseth announced a Federal Bureau of Investigation (FBI) probe into the source of a leak of a classified report about the United States' military strike on Iran's nuclear facilities.6 "We are declaring a war on leakers," a senior White House official said.7
So make no mistake'the subpoenas are coming, most likely from federal grand juries seeking to compel journalists to reveal their confidential sources of classified or other so-called national defense information. And make no mistake about something else'as the president and his FBI director both have made abundantly clear, the subpoenas will have little to do with protecting national security and everything to do with intimidating and punishing the press. The president has made it no secret he views the institutional press as "the enemy of the people," and FBI Director Kash Patel has candidly described his agency's "mission" as bringing to heel "the most powerful enemy that the United States had ever seen . . . the mainstream media."8
What is the press to do? The PRESS Act is dead. The Garland-era DOJ guidelines are history. State shield laws typically do not apply to subpoenas issued by federal grand juries. The U.S. Supreme Court has famously held that the First Amendment offers little solace to a journalist subpoenaed to appear before a grand jury.9 Federal courts have not exactly warmed to the idea of a common law reporter's privilege.10
In short, there is very little left in the media lawyer's toolkit. If you dig deep enough, however, it is not entirely bare. In Branzburg v. Hayes, the same case in which the Supreme Court found no First Amendment violation when three journalists were compelled to testify before grand juries, the Court also held that the First Amendment does protect a reporter's right to protect confidential sources and unpublished work product in one specific circumstance'when a subpoena is issued "other than in good faith." Under the First Amendment, the Court explained, "[o]fficial harassment of the press, undertaken not for the purposes of law enforcement but to disrupt a reporter's relationship with his news sources, would have no justification."11
There has been precious little judicial explication of this largely ignored aspect of Branzburg.For media lawyers, the challenge now is how to breathe life into this "bad faith" exception in the grand jury context.
In this article, we hope to provide a usable framework for practitioners to do just that. In the first part, we explore the Court's decision in Branzburg, the contours of the First Amendment-based protections it identified, and what guidance can be gleaned from the lower courts' admittedly meager assessment of the reach of those protections.
In the second part, we expand the lens to assess how courts, including the Supreme Court, have addressed the scope of First Amendment protection against bad faith government action directed at the press in other contexts.
In the third part, the focus shifts to examining the basic contours of affirmative claims for government retaliation, and the evidence considered probative of bad faith, in litigation brought by non-media plaintiffs.
In each of these endeavors, we pay particular attention to two related inquiries: (1) What substantive standard must the press satisfy to prove government "bad faith" and (2) How can a subpoenaed journalist or news organization satisfy that burden?
Finally, in the fourth part, we offer a framework to be used by media lawyers when challenging grand jury subpoenas issued to their clients "other than in good faith."
Branzburg v. Hayes and Its Progeny
The Supreme Court
The saga of Branzburg v. Hayes and its aftermath is well-documented and oft-told. In a case of first impression, the Supreme Court'by a 5-4 vote with Justice Lewis Powell writing an "enigmatic" concurring opinion'appeared to hold that "requiring newsmen to appear and testify before state or federal grand juries" does not "abridge the freedom of speech and press guaranteed by the First Amendment."12
In the years that followed, media lawyers largely succeeded in limiting the holding to the grand jury context, invoking Justice Powell's concurrence to convince lower courts to establish a qualified First Amendment-based reporter's privilege in civil and at least some criminal cases.13 For present purposes, these decisions provide two salient takeaways. First, virtually all of them relied on Justice Powell's concurrence to anchor the privilege in the First Amendment. Second, in the more than 50 years since Branzburg, the Supreme Court has not taken up a single one of these cases, leaving its decision in Branzburg as the sole source of binding national authority about the role of the First Amendment when a grand jury subpoenas a journalist or news organization.
It is, therefore, worth revisiting what the Supreme Court actually held in Branzburg and how it might be mobilized by media lawyers in the subpoena battles to come. Most significantly, the Court'in both Justice Byron White's opinion for the majority and in Justice Powell's concurring opinion'took pains to emphasize that the First Amendment does provide a measure of protection unique to journalists and their news organizations.
Justice White twice declared that the First Amendment'apparently, though not explicitly, through its Press Clause'protects the newsgathering process itself, including journalists' ability to provide promises of confidentiality to their sources. "[W]ithout some protection for seeking out the news," Justice White wrote, "freedom of the press would be eviscerated."14 His opinion also flatly rejected any suggestion that "news gathering does not qualify for First Amendment protection."15
Turning to the contours of that protection, the Court asserted that any "attempt to require the press to publish its sources of information or indiscriminately to disclose them on request" would violate the First Amendment.16 Assessing the subpoenas before the Court, Justice White emphasized that none involved "a governmental institution that has abused its proper function" by, for example, "'probing at will'" or "forcing wholesale disclosure . . . for a purpose that was not germane to the determination of whether crime has been committed."17
At the opinion's end, the Court both repeated its admonition that "news gathering is not without its First Amendment protections" and declared affirmatively that "grand jury investigations, if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment."18
Specifically, Justice White explained, if a grand jury were to be employed as a governmental tool for "[o]fficial harassment of the press undertaken not for purposes of law enforcement, but to disrupt a reporter's relationship with his news sources," the First Amendment would stand in its way.19 His opinion cautioned prosecutors that "[g]rand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth."20
As for its holding rejecting the reporters' First Amendment claims in Branzburg itself, the Court emphasized that itwas limited to their refusal "to answer the relevant and material questions asked during a good-faith grand jury investigation."21
In his separate opinion, Justice Powell explained that his vote to join the majority was based, in significant part, on its recognition that "no harassment of newsmen will be...
