This activity is a courtroom simulation of the Supreme Court case, Branzburg v. Hayes. The case presents the question of whether or not the Freedom of the Press Clause of the First Amendment protects journalists from revealing their sources to a grand jury investigating criminal matters. Students are assigned to three groups: 1) Justices; 2) Lawyers for the Petitioner, Branzburg (the reporter); and 3) Lawyers for the Respondent, local state court Judge Hayes. Students should familiarize themselves with the case by reading the provided background information.
A 30-minute block of time is set aside for the student justices and lawyers to prepare for the oral arguments. Suggested questions can be referred to for the student justices’ preparation. Since the answers to these questions will vary, sample responses are not provided. Suggested talking points for both sides of the issue are provided for the student lawyers. They are encouraged to add their own arguments as well.
The oral arguments simulation is 30 minutes. Once the activity is called to order, the student justices take their seats. Student lawyers for each side are allotted 10 minutes to present their case. After the first two minutes of each side's argument, the student justices may ask questions. At the conclusion of both sides' arguments, lawyers for the petitioner will be allotted five minutes for rebuttal, followed by five minutes for the respondents' lawyers.
When the rebuttals are concluded, the student justices have 10 minutes to deliberate and make a decision. This can be done in the courtroom in front of the student audience. It also can be done in another room while the large group takes a break. When the justices reconvene, they have a total of about five minutes to announce their decision, allowing each justice to explain his/her opinion. The host judge facilitates a debriefing for the next 20 minutes. During this time, the students discuss the case with the judge and the volunteer lawyers.
Student Justices’ Preparation
Potential Questions to Raise During Oral Arguments
- What constitutes "the press" for purposes of the First Amendment? Must it be an established newspaper or media corporation, or could it be an Internet blogger? If anyone having access to a computer could be called a member of the press, what is to stop them from claiming Branzburg's privilege against revealing sources?
- Does Branzburg's argument depend on the nature of the crime? For instance, would he assert this privilege even if the crime under investigation were murder and not narcotics use? If the privilege depends upon the seriousness of the crime, who determines what constitutes a serious crime? How can this be done?
- Are there any criminal implications for reporters, like Branzburg, who are privy to criminal acts? For instance, could he be charged as an accomplice and/or an accessory after the fact to a crime for being present at its commission and not reporting it? What implications would this have for freedom of the press?