The Subpoenas Are Coming! The Subpoenas Are Coming!

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 Salomão 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 tolerated."²² The Court, Justice Powell added, "does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources."²³

To the contrary, he wrote, it would plainly violate the First Amendment if governmental officials employed a grand jury "to 'annex' the news media as 'an investigative harm of government.'"²⁴ Moreover, if a journalist has reason "to believe that his testimony implicated confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash."²⁵

In adjudicating such a motion, Justice Powell emphasized, the "asserted claim to privilege should be judged on its facts by striking the proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."²⁶

Viewed in this light, Justice Powell's opinion assumes a significance materially different from the one it has attained in grounding a constitutional privilege outside the grand jury context. For one thing, Justice Powell takes the majority at its word that "news gathering" conduct, as distinct from the dissemination of "speech," is protected by the First Amendment's guarantee of "freedom of the press." For another, if the government usurps a grand jury for improper purposes, even in those cases in which a reporter possesses "relevant testimony with respect to criminal conduct," it remains the duty of the court to strike "the proper balance" between these competing interests.

In other words, when there is evidence that a grand jury subpoena has been issued "other than in good faith," Justice Powell reads the Court's opinion to require both a searching judicial inquiry of the underlying facts and a balancing of the reporter's right to be free from "official harassment" against whatever need the grand jury may have for the reporter's testimony.

Justices White and Powell left two important questions unaddressed. First, how is a court to "strike the proper balance" in such cases? Second, what evidence of "bad faith" or "official harassment" is required to trigger the balancing process and how can a subpoenaed journalist go about making the requisite showing?

Presumably, neither the Court nor Justice Powell saw the need to provide answers because, as Justice White noted, none of the reporters before the Court in Branzburg alleged the government had acted "other than in good faith." (Ironically, as one of us has written elsewhere, in the case of reporter Earl Caldwell, "[t]here is substantial reason to conclude" that the subpoena he received was issued "other than in good faith," not for the purpose of securing relevant grand jury testimony from him, "but rather to disrupt his relationship" with his sources within the Black Panther Party.)²⁷

The Lower Courts

In the 50-odd years since its decision in Branzburg, the Court's silence on the subject of a reporter's privilege has been met equally with silence from the lower courts with respect to the "bad faith" exception carved out by the Court. Although federal and state courts have issued literally thousands of opinions addressing a journalist's claim to a constitutionally rooted privilege in a variety of settings, civil and criminal, very few have been presented with an argument that a subpoena should be quashed because the government procured it "other than in good faith."

Still, a handful of cases have addressed the "bad faith" exception, albeit more generally. In an early post-Branzburg decision widely viewed as rejecting any First Amendment–based privilege, the Sixth Circuit, itself relying on Justice Powell's concurrence, placed on lower court judges an affirmative obligation to "make certain that the proper balance is struck between freedom of the press" and the legitimate needs of the grand jury.²⁸

It should do this, the court explained, by "determining whether the reporter is being harassed in order to disrupt his relationship with confidential news sources, whether the grand jury's investigation is being conducted in good faith, whether the information sought bears more than a remote and tenuous relationship to the subject of the investigation, and whether a legitimate law enforcement need will be served by forced disclosure of the confidential source relationship."²⁹

Just as in Branzburg itself, however, the Sixth Circuit offered no further guidance concerning how a subpoenaed journalist might make this showing.

In Wolf v. United States,³⁰ the Ninth Circuit declined to quash a grand jury subpoena issued to a freelance videographer, which sought footage he recorded at a protest. The videographer invoked the "bad faith" exception, arguing that it applied because "the burning of a police car"—the event apparently depicted in his footage—"is not a federal concern."³¹

In the course of disposing of that contention (on the ground that the government had cited a specific federal statute as the basis for its investigation as well as the subpoena in question), the court nevertheless reiterated that "a limited balancing of First Amendment interests" would be necessary "'where a grand jury inquiry is not conducted in good faith.'"³²

For its part, the Second Circuit has addressed some of the issues raised by an assertion that a grand jury subpoena was issued in "bad faith," albeit in the context of a motion to quash brought not by a reporter but by a source.³³ In that case, the court recognized both that a "'grand jury subpoena is presumed to have a proper purpose'" and that "the party challenging the subpoena 'bears the burden of showing that the grand jury has exceed its legal powers.'"³⁴ To satisfy its burden, the court added, the subpoenaed party "'must present 'particularized proof' of an improper purpose."³⁵

It appears that, to date, no district court has had occasion to apply the Branzburg "bad faith" exception. In one case, a judge supervising a grand jury in the Eastern District of Virginia was presented with the opportunity to do so. In United States v. Sterling, investigative journalist James Risen claimed he was subpoenaed to reveal the identity of a confidential source in retaliation for his reporting about the George W. Bush administration's covert warrantless wiretapping program.³⁶

The court declined to consider the claim because it concluded (erroneously as it turned out) that the First Amendment protected Risen from compelled unmasking of his confidential sources even in the absence of bad faith.³⁷ When the government appealed the district court's identical ruling in connection with its trial subpoena to Risen, the Fourth Circuit reversed but did not address the reporter's bad faith claim.³⁸

In its initial decision, however, the district court appeared to offer, in dicta, a glimpse at the kind and quantum of evidence that might support a valid bad faith claim. After summarizing Risen's own contention that the subpoena had been issued in retaliation for his articles "that criticized and exposed the government's national security practices during a time of war," the court noted that he had made a showing that "[m]any officials—including former President Bush—criticized Risen's reporting and some threatened investigations and potential prosecution."³⁹

Apparently on its own initiative, the district court added that reissuance of the subpoena during the Obama administration did "not remove the specter of harassment, because we do not know how many of the attorneys and government officials who sought Risen's testimony in 2006 are still in their jobs and to what extent, if any, they advised the new Attorney General about approving the subpoena."⁴⁰ In addition, the court suggested the subpoena's "sweeping scope"—including its request for a book proposal Risen had submitted to potential publishers—itself "provides some support for Risen's harassment argument."⁴¹

"Bad Faith" Governmental Conduct Against the Press in Other Contexts

Absent dispositive judicial guidance in the specific context of journalists and their confidential sources, media lawyers are left to look elsewhere for useful precedent to reinvigorate Branzburg's bad faith exception. Happily, in a variety of other settings, courts—including the Supreme Court—have found that the First Amendment generally, and its Press Clause specifically, protects journalists and news organizations from governmental action taken against them in bad faith.

The Supreme Court

Perhaps the most significant such case, Grosjean v. American Press,⁴² arrived at the Supreme Court from Louisiana, where U.S. Senator (and former Governor) Huey Long had strong-armed the legislature to impose a punitive tax on the state's largest newspapers. As it happened, the newspapers had been overtly critical of Long, who had an outsized appetite for authoritarian behavior. Of the nine newspapers subject to the tax, "^all but one" had allegedly "'ganged up'" on the senator "and a circular distributed by Long and the Governor to each member of the state legislature described 'lying newspapers' as conducting 'a vicious campaign' and the tax as 'a tax on lying, 2 cent a lie.'"⁴³

A unanimous Court held that the statute abridged "the freedom of the press."⁴⁴ In so holding, it explained that the "predominant purpose" of the First Amendment's Press Clause "was to preserve an untrammeled press as a vital source of public information."⁴⁵ The Louisiana statute was "bad," Justice Sutherland wrote for the Court, because it was "a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled."⁴⁶ It violated the First Amendment because a "free press stands as one of the great interpreters between the government and the people" and "[t]o allow it to be fettered is to fetter ourselves."⁴⁷

Within its four corners, the Court's opinion in Grosjean is largely silent about the basis for its conclusion that the Louisiana statute constituted a "deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled." Judicial explication of that conclusion first arrived nearly a half-century later in Minneapolis Star v. Minnesota Commissioner of Revenue.⁴⁸

There, Justice Sandra Day O'Connor's opinion for the Court provided the description of Senator Long's and the Louisiana legislature's bad faith recited above, while candidly acknowledging that Grosjean itself "did not describe this history."⁴⁹ Still, Justice O'Connor recognized that its holding was more than likely "dependent on the improper censorial goals of the legislature."⁵⁰

In Minneapolis Star, where there was "no legislative history and no indication, apart from the structure of the tax itself, of any impermissible or censorial motive," the Court extended Grosjean to create a presumption of bad faith whenever a statute singles out the press for "differential treatment." "[U]nless justified by some special characteristic of the press," Justice O'Connor explained, government action targeting journalists and news organizations with precision "suggests that the goal of the regulation is not unrelated to suppression of expression, and such a goal is presumptively unconstitutional."⁵¹

The Lower Courts

Until recently, there has been scant precedent in the lower courts addressing governmental action taken against the press in bad faith. In one case, Rossignol v. Voorhaar,⁵² law enforcement officers allegedly conspired with a county sheriff and prosecutor to remove the entire press run of a local newspaper from circulation by buying up every available copy. They allegedly did so both because the newspaper had been persistently critical of them and because the confiscated edition contained more of the same.

The Fourth Circuit had little trouble concluding that "[t]he seizure clearly contravened the most elemental tenets of First Amendment law."⁵³ Not only had government officials targeted a "newspaper for suppression and retaliation because they disagreed with its viewpoint and intended to prevent its message from being disseminated," but the "category of speech that defendants suppressed 'occupies the core of the protection afforded by the First Amendment.'"⁵⁴

In Media Matters for America v. Paxton,⁵⁵ a journalistic watchdog that had been critical of Elon Musk, a political ally of Texas Attorney General Ken Paxton, brought a First Amendment retaliation claim against Paxton after his office launched an investigation into the nonprofit organization over its reporting on X (formerly Twitter) and Musk.⁵⁶ Media Matters also claimed that, as a result of Paxton's investigation, its reporting efforts had been irreparably harmed, and it sought to enjoin the probe.⁵⁷ The district court granted a preliminary injunction, finding Media Matters was likely to succeed on the merits of its retaliation claim.⁵⁸

A unanimous panel of the D.C. Circuit affirmed, noting that the investigation about which Media Matters had sued transcended just "the chilling effects of the actions taken against them."⁵⁹ Rather, the court explained, "they involve concrete and felt acts of retaliation against a media company and one of its investigative reporters for having exercised their protected rights of free speech."⁶⁰ Against that backdrop, the court set out the traditional First Amendment retaliation standard (about which we have more to say below):

The unanimous court held that the first element was easily established—Media Matters "was obviously engaged in conduct protected under the First Amendment. Indeed, the underlying incident that precipitated their claim involved their news reporting on a public figure and alleged political extremism on a popular social media platform."⁶² And, although the court noted that "Paxton ha[d] forfeited a challenge to the second and third elements by failing to adequately contest them on appeal," it did address those elements elsewhere in its opinion.

Rejecting Paxton's argument that Media Matters' complaint "should be dismissed because it does not raise a justiciable claim,"⁶³ the court held unequivocally the plaintiffs' "allegation that they are targets of a retaliatory government investigation is a claim regarding concrete harm."⁶⁴ In other words, retaliatory government investigations directed at a media entity can constitute "retaliatory action sufficient to deter a person of ordinary firmness in their position from speaking again." Indeed, the court expressly concluded that Media Matters had "made this showing."⁶⁵

Finally, the court found there was a causal link between Media Matters' reporting and Paxton's decision to open the investigation. It pointed to (1) his "Office's press release establishing that Paxton opened the investigation in response to Media Matters' reporting; (2) his description of Media Matters as a 'radical anti-free speech' and 'radical left-wing organization'; and (3) his encouragement of other state attorneys general to investigate Media Matters" as "ample evidence of Paxton's retaliatory motive."⁶⁶

Notably for our purposes, without citing to Branzburg, the court in Media Matters offered a clear (albeit sub silentio) nod to the case, explaining that not every government investigation into a news organization results in a cognizable First Amendment retaliation claim. Rather, the key is "distinguishing between 'good faith' and 'bad faith' investigations," as it is the "bad faith use of investigative techniques" that "abridge^s journalists' First Amendment rights."⁶⁷ As the court explained:

One week later, a different panel of the same court issued its decision in Associated Press v. Budowich,⁶⁹ an opinion that neither cited to nor discussed Media Matters.⁷⁰ In Budowich, the court granted a motion to stay a preliminary injunction preventing the White House from excluding the Associated Press (AP) from events otherwise open to members of the press pool covering the president.

The administration effectively conceded that it had done just that in retaliation for the AP's refusal to refer to the Gulf of Mexico as the "Gulf of America," as the president preferred. In a per curiam order, the court held that the White House was "likely to succeed on the merits" of its appeal.⁷¹

In a concurring opinion, Judge Neomi Rao set out a more stringent First Amendment retaliation standard than the court had articulated in Media Matters, requiring the AP to "demonstrate that (1) it engaged in protected expression; (2) a government actor took a materially adverse action against it; and (3) there is a causal relationship between the protected expression and the adverse action."⁷²

She defined a "materially adverse action" as "generally one that deprives a person of certain property rights or infringes a liberty interest," offering the "loss of employment" or "the withdrawal of a business license" as examples.⁷³ "The White House's choice of who to allow into the Oval Office," Judge Rao wrote, "is simply not like a decision about a government benefit or license."⁷⁴

In dissent, Judge Cornelia Pillard called out what she characterized as Judge Rao's remarkably narrow view of First Amendment retaliation claims. She noted both that (1) White House officials had "concede[d] that they ousted the AP from the Press Pool based on the AP's expression of its own views outside the Press Pool"⁷⁵ and (2) "[t]here is no finding—nor was there any evidence—that the AP's activity within the Press Pool was . . . in any other way distinguishable from that of representatives of the media outlets that the White House still allows to report from the Oval Office."⁷⁶

Affirmative Claims for Government Bad Faith by Non-Media Plaintiffs

Although the elements of a claim for First Amendment retaliation under the Speech Clause are generally the same for media and non-media plaintiffs, unlike in media cases, the Supreme Court has shed significantly more light on what it considers probative evidence of bad-faith motive by government actors in other cases. This Part examines those standards through the lens of both a quintessential First Amendment retaliation claim, as well as another constitutional doctrine in which establishing bad faith is required in order to prevail.

Mt. Healthy v. Doyle and Its Progeny

The Supreme Court first addressed a First Amendment retaliation claim in Mt. Healthy City School District Board of Education v. Doyle (Mt. Healthy).⁷⁷ The Court's decision established a framework for such claims that has endured for more than four decades. The case revolved around Fred Doyle, a teacher employed by the school district.⁷⁸ As the Court described the underlying facts, "[i]n one instance, he engaged in an argument with another teacher," "culminating in the other teacher's slapping him."⁷⁹

He also "got into an argument with employees of the school cafeteria" over the amount of food he was served, would refer to students as "sons of bitches," and "made an obscene gesture to two girls" who failed "to obey ^his commands."⁸⁰ In a separate incident, he called in to a local radio station to criticize the school principal's adoption of a dress code for teachers.⁸¹ A month later, the district's board of education voted not to rehire Doyle and referenced the radio station incident as one basis for its decision.⁸²

When the case ultimately reached the Supreme Court, the justices were tasked with deciding whether "the fact that protected conduct played a 'substantial part' in the actual decision not to renew ^{Doyle's contract} would necessarily amount to a constitutional violation justifying remedial action."⁸³ The Court noted initially that, if the discharge was motivated solely by Doyle's engagement in protected speech, then it would unquestionably be unlawful.⁸⁴ On the other hand, the Court asserted that "had the radio station incident never come to its attention," there would be no First Amendment violation when the board terminated him.⁸⁵

The hard cases, the Court recognized, involved mixed-motive discharges. As the Court explained, "^a rule of causation which focuses solely on whether protected conduct played a part, 'substantial' or otherwise, in a decision not to rehire, could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing."⁸⁶

To strike the proper balance, the Court devised a burden-shifting test under which a plaintiff such as Doyle must first "show that his conduct was constitutionally protected, and that this conduct was a 'substantial factor'—or, to put it in other words, that it was a 'motivating factor'" in the action taken against him.⁸⁷ Where that threshold showing is made, the burden then shifts to the defendant to show "by a preponderance of the evidence that it would have reached the same decision"—here, termination—"even in the absence of the protected conduct."⁸⁸

In recent years, the Supreme Court has reexamined the Mt. Healthy framework in the context of other First Amendment retaliation claims. Those cases offer further insight into the types of evidence that can be used to show bad faith by government actors. For example, in Nieves v. Bartlett,⁸⁹ the Court held that a "plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest" to prevail.⁹⁰

In so holding, it acknowledged that an officer's state of mind, that is, whether the officer was subjectively motivated by retaliatory animus, would be sufficient proof of the requisite causal link between the plaintiff's injury and the defendant's conduct.⁹¹ The Court also recognized that plaintiffs could meet their burden through "objective evidence" that they had been treated differently than "otherwise similarly situated individuals . . . engaged in the same sort of protected speech."⁹²

Last term, in Gonzalez v. Trevino,⁹³ the Supreme Court clarified that a plaintiff can show retaliatory animus even without evidence of similarly situated comparators.⁹⁴ In her concurring opinion, Justice Ketanji Brown Jackson emphasized that the Court's opinion "should not be taken to suggest that plaintiffs cannot use other types of objective evidence to make this showing."⁹⁵

She provided examples of alternative evidence such as the "officers' employment of an unusual, irregular, or unnecessarily onerous arrest procedure"; "the timing of and events leading up to a plaintiff's arrest"; or "if officers falsely document the arrest or include other indicia of retaliatory motive in arrest-related documents that [] might suggest meaningfully different treatment."⁹⁶

Government Bad Faith in the Equal Protection Context

The Court also has developed tests designed to discern the motive underlying governmental conduct, and to determine whether it was improper, in other contexts. One such area is race-based discrimination claims brought under the Fourteenth Amendment's Equal Protection Clause. The evidence the Supreme Court has deemed relevant to discriminatory governmental motive in that setting provides a helpful framework for identifying the kinds of evidence that could demonstrate bad faith in the First Amendment context as well.

In the leading case, Village of Arlington Heights v. Metropolitan Housing Development Corporation,⁹⁷ a developer sought to rezone a parcel of land to allow the construction of multifamily residences. After the town denied the request, the developer sued, claiming the denial was "racially discriminatory" and thus violated the Equal Protection Clause. At the center of the case was the question of what evidence sufficed to show a racially discriminatory motive in order to trigger strict constitutional scrutiny under the Fourteenth Amendment.

As the Supreme Court explained, although "^proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause," a plaintiff is not required "to prove that the challenged action rested solely on racially discriminatory purposes."⁹⁸ "Rarely can it be said," the Court wrote, "that a legislature or administrative body operating under a broad mandate made a decision solely ^motivated by a single concern, or even that a particular purpose was the 'dominant' or 'primary' one."⁹⁹

Given this mixed-motive reality, the Court laid out several categories of evidence—direct and circumstantial—to which plaintiffs could point in order to make the necessary showing that "invidious discriminatory purpose was a motivating factor" in the government's conduct.¹⁰⁰

One such category, the Court noted, was the official action's impact.¹⁰¹ Although "impact alone is not determinative" of bad intent, it "may provide a starting point."¹⁰² "Sometimes," the Court explained, "a clear pattern, unexplainable on other grounds . . . emerges from the effect of the ^government's action even when the governing legislation appears neutral on its face."¹⁰³

In addition, the Court held, the "historical background of the ^government's decision" could serve as "one evidentiary source" of discriminatory motive, "particularly if it reveals a series of official actions taken for invidious purposes."¹⁰⁴ The Court directed litigants to look at "[t]he specific sequence of events leading up to the challenged decision," citing its decision in Grosjean.¹⁰⁵ A third category of relevant evidence, the Court asserted, included "[d]epartures from the normal procedural sequence," which "might afford evidence that improper purposes are playing a role," "particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached."¹⁰⁶

Finally, the Court pointed to "[t]he legislative or administrative history" leading up to the government's action.¹⁰⁷ Such evidence could prove "especially" significant "where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports."¹⁰⁸ In addition, the Court asserted it could envision some "extraordinary instance[]" in which "the members might be called to the stand at trial to testify concerning the purpose of the official action."¹⁰⁹ The Court also noted that this was a non-exhaustive list of the kinds of evidence that could be marshalled to prove discriminatory motive, but stressed that all of them were "subjects of proper inquiry in determining whether discriminatory intent existed."¹¹⁰

Motions to Quash Subpoenas Issued in Bad Faith

Based on the foregoing, we propose that, in moving to quash a grand jury subpoena issued to a journalist or news organization by the Department of Justice, counsel include some version of the following argument:¹¹¹

1. The First Amendment's Press Clause presumptively protects journalists and news organizations from grand jury subpoenas issued by the government in bad faith.

In Branzburg, the Supreme Court unanimously recognized that (1) "newsgathering" is protected by the First Amendment's Press Clause, (2) "newsgathering" includes a journalist's ability to promise confidentiality to news sources, and (3) grand jury subpoenas to journalists and their news organizations issued in bad faith are constitutionally suspect.¹¹² Every circuit to consider the question has held that, in such circumstances, the subpoena is presumptively invalid and the recipient enjoys a qualified constitutional privilege to resist it.¹¹³

2. To invoke the First Amendment's protection, the subpoenaed journalist or news organization must make a prima facie showing of bad faith.

Those courts that have considered analogous constitutional protections in the face of governmental conduct undertaken in bad faith or for improper motives have indicated the requisite showing can be made through evidence that:

• The subpoenaed party either gathered or disseminated information critical of (or otherwise objected to by) the government;¹¹⁴
• Dissemination of that information is itself protected by the First Amendment;¹¹⁵
• The government has admitted—through contemporaneous statements, documents, testimony, or other available evidence—that the subpoena was issued, at least in part, for a retaliatory or other bad faith purpose;¹¹⁶
• There is a temporal or causal link between the purportedly objectionable information and the subpoena's issuance;¹¹⁷
• Enforcement of the subpoena is likely to deter either (1) similarly situated journalists and news organizations from gathering and disseminating information deemed objectionable by the government or (2) news sources from providing such information in the first instance;¹¹⁸
• The relevant government decisionmakers have a history of taking retaliatory action against those who disseminate information they deem objectionable;¹¹⁹
• The government's conduct reveals a pattern of conduct that cannot reasonably be explained on any basis other than bad faith;¹²⁰
• The subpoena does not serve a legitimate need of law enforcement;¹²¹
• The testimony or evidence sought by the subpoena bears only a remote or tenuous relationship to the subject of the grand jury's investigation;¹²²
• The subpoena sweeps broadly and/or could have been more narrowly tailored to achieve its purported purpose;¹²³
• The grand jury issued no subpoenas to similarly situated persons or entities that had not gathered or disseminated information the government deemed objectionable;¹²⁴
• The process surrounding the subpoena's issuance, including its timing and the events leading up to it, was unusual or irregular or imposed unnecessarily onerous requirements on its recipient;¹²⁵ and
• The government based issuance of the subpoena on information it knew or should have known was materially false.¹²⁶

A subpoenaed party may make the requisite prima facieshowing without on-the-nose evidence. As the caselaw surrounding unconstitutional government retaliation demonstrates, a presumption of bad faith can be based on circumstantial evidence of the above.¹²⁷ As that caselaw further indicates, the requisite showing can be based on an aggregation of some, but not necessarily all or even most, of these evidentiary categories.¹²⁸

Even without such evidence, there is ample available support for a presumption of bad faith whenever the current administration subpoenas a journalist or news organization to testify before a grand jury. As the Introduction demonstrates, the administration and its relevant decision-makers—including the Attorney General, the director of the FBI, the director of national intelligence, and the president himself—have publicly declared their intent to retaliate against perceived critics and other enemies including, most especially, through the issuance of subpoenas to the press. In addition, both the president (in his public and putatively private capacity) and his administration have an established track record of retaliating against disfavored journalists and news organizations. Standing alone, such evidence should be more than sufficient to satisfy the subpoenaed party's initial burden of establishing a presumption of bad faith.

3.Once a prima facie showing has been made, the subpoena is presumptively invalid and the burden shifts to the government to demonstrate that (1) the subpoena seeks information material to the grand jury investigation; (2) the grand jury has a compelling need for the subpoenaed information; and (3) the information is not available from alternative sources.

As we have explained, in some circumstances, courts adjudicating First Amendment–based retaliation claims have required speakers to demonstrate either that retaliation was a substantial factor motivating an adverse governmental action or that the action had a materially adverse impact on that speaker.¹²⁹ Accordingly, there may be an understandable inclination to allow the government to overcome the presumption of bad faith in such circumstances.

For a number of reasons, however, the caselaw demonstrates that, although such evidence may be relevant to the requisite showing, it is by no means sufficient. Cases like Grosjean and Rossignol indicate that such a showing is irrelevant where a retaliatory motive against the press has been demonstrated.¹³⁰ Those cases, as well as established First Amendment doctrine more generally, reflect the notion that even fleeting infringement of the constitutional right necessarily causes "irreparable harm."¹³¹

The Supreme Court also has deemed such showings insufficient to rebut claims of improper governmental motive in analogous contexts, including under the Equal Protection Clause.¹³² Most significantly, in Branzburg and its progeny, courts have similarly indicated that evidence of a nonretaliatory motive (in addition to an illicit one) or allegedly de minimisimpact, standing alone, would be insufficient to overcome the presumption of bad faith.¹³³

Thus, in the face of a prima facie showing of bad faith, the government's burden of rebutting the resulting presumption is necessarily heavy.¹³⁴ We suspect that, in the run of cases, the current administration will not attempt to rebut a journalist's or news organization's showing of bad faith, whether because of the persuasive body of existing evidence referenced above or the administration's likely desire to avoid the unearthing of additional evidence of its bad faith. Rather, for the reasons that follow, the administration will likely opt instead to attempt to overcome the qualified privilege established by a prima facie showing of bad faith.

In Branzburg, the subpoenaed journalists all argued (unsuccessfully) that the constitutional privilege they sought was not absolute.¹³⁵ In his dissenting opinion, Justice Potter Stewart advocated for a qualified privilege based on three factors:

In the absence of further Supreme Court guidance, lower courts have widely adopted it outside the grand jury context.¹³⁷

Moreover, in grand jury cases following Branzburg, the federal appellate courts that have considered the issue have strongly suggested that even a subpoena issued in bad faith may be enforced consistent with the First Amendment if the government satisfies Justice Stewart's three-part test. Specifically, those courts have construed Justice Powell's concurrence as requiring that a court faced with a motion to quash a subpoena issued in bad faith "balance" the journalist's right to avoid this intrusion on the newsgathering process against the need for the journalist's testimony.¹³⁸

As more than five decades of precedent outside the grand jury context indicates, the balance is struck through judicial assessment of whether the government nevertheless has an overriding, compelling interest in enforcing the subpoena. If so, even where it was issued in bad faith, the subpoena may be enforced.

Conclusion

A broad swath of our First Amendment jurisprudence is composed of prophylactic rules designed to protect the press from the ever-present risk that government officials will invoke their power to penalize or retaliate against it for disfavored reporting or commentary.

In New York Times Co. v. Sullivan, for example, the Court—aware that Alabama officials had weaponized libel law to punish and stifle critical reporting—erected a constitutional regime designed to make it difficult for them (and others) to do so.¹³⁹

In Minneapolis Star, the Court created a presumption that a tax directed solely at the press violates the First Amendment expressly because it feared that any such tax would likely be imposed in bad faith.¹⁴⁰

By contrast, in Branzburg,¹⁴¹ the Court declined to adopt an analogous prophylactic rule creating a presumption of constitutional invalidity when a federal grand jury subpoenas a reporter or news organization. Instead, it placed on the press the onus of establishing the subpoena was issued in bad faith.

In this article, we have taken the Court at its word and, drawing on precedent established in analogous contexts, have offered a framework for vindicating the press's constitutional right to resist grand jury subpoenas designed to punish or retaliate against it for speaking truth to power.

Footnotes

1 Marvin Kalb, Enemy of the People: Trump's War on the Press, the New McCarthyism, and the Threat to American Democracy (2018); Susan B. Glasser, Donald Trump's Revenge, New Yorker (Nov. 6, 2024), https://www.newyorker.com/news/the-lede/donald-trump-wins-a-second-term; Josh Gerstein, Trump Promised to Get Revenge. Here Are His Targets., Politico (Nov. 6, 2024), https://www.politico.com/news/2024/11/06/trump-retribution-enemy-list-00187725.

2 Glasser, supra note 1.

3 Liam Scott, Bill to Protect Journalists Fails in US Senate, Voice of Am. (Dec. 10, 2024), https://www.voanews.com/a/bill-to-protect-journalists-fails-in-senate/7897008.html.

4 Julian E. Barnes & David E. Sanger, Trump Administration Opens Leak Investigations, N.Y. Times (Mar. 14, 2025), https://www.nytimes.com/2025/03/14/us/politics/trump-administration-leak-investigations.html.

5 Charlie Savage & Devlin Barrett, Attorney General Lifts Ban on Subpoenaing Reporters' Notes in Leak Investigations, N.Y. Times (May 1, 2025), https://www.nytimes.com/2025/05/01/us/politics/attorney-general-ban-subpoenae-reporter-notes.html.

6 Julian E. Barnes et al., Strike Set Back Iran's Nuclear Program by Only a Few Months, U.S. Report Says, N.Y. Times (June 24, 2025), https://www.nytimes.com/2025/06/24/us/politics/iran-nuclear-sites.html.

7 Marc Caputo, Scoop: Trump to Limit Sharing Classified Info with Congress After Leak on Iran Bombing Damage, Axios (June 25, 2025), https://www.axios.com/2025/06/25/iran-bombing-intelligence-trump-congress.

8 Kalb, supra note 1; Cody Venzke, Where FBI Director Nominee Kash Patel Stands on Civil Liberties, ACLU (Jan. 8, 2025), https://www.aclu.org/news/civil-liberties/where-fbi-director-nominee-kash-patel-stands-on-civil-liberties.

9 Branzburg v. Hayes, 408 U.S. 665 (1972).

10 See In re Grand Jury Subpoena, Judith Miller,438 F.3d 1138 (D.C. Cir. 2006).

11 Branzburg, 408 U.S. at 707–08.

12 Id. at 667; id. at 709 (Powell, J., concurring); id. at 725 (Stewart, J., dissenting).

13 See generally Lee Levine et al., Newsgathering and the Law 18 (Matthew Bender & Co. 5thed. 2018); James C. Goodale, Branzburg v. Hayes and the Developing Qualified Privilege for Newsmen, 26 Hastings L.J. 709 (1975); Lee Levine & Stephen Wermiel, A Tale of Three Reporters: Reflecting on Branzburg v. Hayes at 50, 38 Commc'ns Law. 6 (2022).

14 Branzburg, 408 U.S. at 681.

15 Id.

16 Id. at 682.

17 Id. at 700 (quoting DeGregory v. Att'y Gen. of N.H., 383 U.S. 829 (1966)).

18 Id. at 707–08.

19 Id.

20 Id.

21 Id. at 708.

22]Id. at 709 (Powell, J., concurring).

23 Id. at 710.

24 Id.

25 Id.

26 Id.

27 Levine & Wermiel, supra note 13.

28 In re Grand Jury Proceedings, 810 F.2d 580, 585 (6th Cir. 1987).

29 Id. Similarly, in another early post-Branzburg decision, the D.C. Circuit determined that the reference to balancing of competing interests in Justice Powell's concurring opinion was directed at (and limited to) "the availability of judicial case-by-case screening out for bad faith 'improper and prejudicial' interrogation." Reps. Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030, 1061 n.107 (D.C. Cir. 1978). See In re Special Counsel Investigation, 332 F. Supp. 2d 26, 30 (D.D.C. 2004) ("[T]here is no reporter's privilege except in the face of a grand jury acting in bad faith.").

30 201 F. App'x 430 (9th Cir. 2006).

31 Id. at 432.

32 Id. (quoting In re Grand Jury Proceedings (Scarce), 5 F.3d 397, 401 (9th Cir. 1993)).

33 In re Grand Jury Proceeding, 971 F.3d 40 (2d Cir. 2020).

34 Id. at 54 (quoting United States v. Salameh, 152 F.3d 88, 109 (2d Cir. 1998)).

35 Id. (citations omitted).

36 In re Grand Jury Subpoena to Risen, No. 1:10CR485, 2010 U.S. Dist. LEXIS 143340, at *1 (E.D. Va. June 28, 2011).

37 Id. at *25 n.6.

38 United States v. Sterling, 724 F.3d 233 (4th Cir. 2013), rev'g, 818 F. Supp. 2d 945 (E.D. Va. 2011).

39 Risen, 2010 U.S. Dist. LEXIS 143340, at *25 n.6.

40 Id.

41 Id.

42 297 U.S. 233 (1936).

43 Minneapolis Star v. Minn. Comm'r of Revenue, 460 U.S. 575, 579–80(1983).

44 Grosjean, 297 U.S. at 250.

45 Id.

46 Id.

47 Id.

48 460 U.S. 575 (1983).

49 Id. at 579–80.

50 Id.

51 Id.

52 316 F.3d 516 (4th Cir. 2003).

53 Id. at 521.

54 Id. In Baltimore Sun v. Ehrlich, 437 F.3d 410 (4th Cir. 2006), Maryland's governor had instructed his administration to cease providing interviews or other information to two reporters who had written articles critical of him. Without citing Rossignol, the court looked to precedent (discussed infra) governing First Amendment retaliation claims brought by non-media speakers. Under that body of law, the court concluded that, even though it was conceded the two journalists had "engaged in constitutionally protected speech" and the governor had issued the "directive in response to their speech," there can be no "actionable retaliation claim . . . when a government official denies a reporter access to discretionarily afforded information or refuses to answer questions." Id. at 417. The court so held, it explained, both because it feared that authorizing a retaliation claim in such circumstances would "constitutionalize virtually every day-to-day interchange between the press and the Governor" and because, in the absence of evidence of a demonstrable "chilling effect" on the Sun's "exercise of its First Amendment rights," the law does not provide a remedy for a "de minimis inconvenience." Id.

55 138 F.4th 563 (D.C. Cir. 2025).

56 Id. at 569.

57 Id. at 569–70.

58 Id. at 570.

59 Id. (emphasis added).

60 Id.

61 Id. at 584 (cleaned up).

62 Id.

63 Id. at 579.

64 Id. at 580.

65 Id. at 581.

66 Id. at 580 (emphasis added).

67 Id.

68 Id.

69 No. 25-5109, 2025 U.S. App. LEXIS 13980, at *1 (D.C. Cir. June 6, 2025).

70 See generally id.

71 Id. at *3.

72 Id. at *27 (emphasis added).

73 Id. at *28.

74 Id.

75 Id. at *36.

76 Id. at *48. Judge Pillard also rejected Judge Rao's formulation of the First Amendment retaliation standard as requiring "a materially adverse action." Id. at *63–64. Even if this novel element were added to the traditional standard, she asserted, the AP was likely to succeed on the merits of its claim because the White House's "exclusion was retributive" in nature. Id. at *62.

77 429 U.S. 274 (1977).

78 Id. at 281.

79 Id.

80 Id. at 281–82.

81 Id.

82 Id. at 282–83.

83 Id. at 285.

84 Id. at 283–84.

85 Id. at 285.

86 Id.

87 Id. at 287.

88 Id. at 287 & n.2 (citing Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)). For further discussion regarding Arlington Heights, see infra.

89 587 U.S. 391 (2019).

90 Id. at 402.

91 Id. at 403.

92 Id.

93 602 U.S. 653 (2024).

94 Id. at 658.

95 Id. at 675.

96 Id. at 676.

97 429 U.S. 252 (1977).

98 Id. at 265.

99 Id.

100 Id. at 266.

101 Id.

102 Id.

103 Id.

104 Id. at 267.

105 Id.

106 Id.

107 Id. at 268.

108 Id.

109 Id.

110 Id.

111 In circuits in which a reporter's privilege has not been recognized absent bad faith even outside of the grand jury context, this framework could be employed in motions to quash other subpoenas as well. See, e.g., Convertino v. U.S. DOJ, Case No. 07-CV-13842, 2008 U.S. Dist. LEXIS 66889 (E.D. Mich. Aug. 28, 2008).

112 Branzburg v. Hayes, 408 U.S. 665, 681, 707 (1972).

113 See In re Grand Jury Proceedings, 810 F.2d 580, 585 (6th Cir. 1987); In re Grand Jury Proceedings (Scarce), 5 F.3d 397, 400 (9th Cir. 1993); Reps. Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030, 1061 n.107 (D.C. Cir. 1978).

114 See, e.g., Grosjean v. Am. Press, 297 U.S. 233, 250 (1936); Minneapolis Star v. Minn. Comm'r of Revenue, 460 U.S. 575, 579–80 (1983); Rossignol v. Voorhaar,316 F.3d 516, 521 (4th Cir. 2003); In re Grand Jury Subpoena to Risen, No. 1:10CR485, 2010 U.S. Dist. LEXIS 143340, at *25 n.6 (E.D. Va. June 28, 2011).

115 See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283, 287 (1977); Media Matters for Am. v. Paxton, 138 F.4th 563, 570 (D.C. Cir. 2025).

116 See Grosjean, 297 U.S. at 250; Minneapolis Star, 460 U.S. at 579–80; Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977); Rossignol, 316 F.3d at 521.

117 See Nieves v. Bartlett, 587 U.S. 391, 403 (2019); Gonzalez v. Trevino, 602 U.S. 653, 658 (2024); Media Matters for Am. v. Paxton, 138 F.4th 563, 570 (D.C. Cir. 2025).

118 See Balt. Sun. v. Ehrlich, 437 U.S. 410, 417 (4th Cir. 2006); Arlington Heights, 429 U.S. at 266; Media Matters for Am., 138 F.4th at 580; Associated Press v. Budowich, No. 25-5109, 2025 U.S. App. LEXIS 13980, at *27 (D.C. Cir. June 6, 2025).

119 See Grosjean, 297 U.S. at 250; Minneapolis Star, 460 U.S. at 579–80; Arlington Heights, 429 U.S. at 267.

120 See Arlington Heights, 429 U.S. at 266; Yick Wo v. Hopkins, 118 U.S. 356 (1886).

121 See Branzburg v. Hayes, 408 U.S. 665, 707–08 (1972); id. at 710 (Powell, J., concurring); see In re Grand Jury Proceedings, 810 F.2d 580, 585 (6th Cir. 1987); In re Grand Jury Proceedings (Scarce), 5 F.3d 397, 400 (9th Cir. 1993); Reps. Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030, 1061 n.107 (D.C. Cir. 1978).

122 See Branzburg, 408 U.S. at 707–08; id. at 710 (Powell, J., concurring); see In re Grand Jury Proceedings, 810 F.2d at 585; In re Grand Jury Proceedings (Scarce), 5 F.3d at 400; Reps. Comm. for Freedom of the Press, 593 F.2d at 1061 n.107.

123 See In re Grand Jury Subpoena to Risen, No. 1:10CR485, 2010 U.S. Dist. LEXIS 143340, at *25 n.6 (E.D. Va. June 28, 2011).

124 See Nieves v. Bartlett, 587 U.S. 391, 403 (2019); Associated Press v. Budowich, No. 25-5109, 2025 U.S. App. LEXIS 13980, at *48 (D.C. Cir. June 6, 2025) (Pillard, J., dissenting).

125 See Arlington Heights, 429 U.S. at 267;Gonzalez v. Trevino, 602 U.S. 653, 676 (2024) (Jackson, J., concurring).

126 See Arlington Heights, 429 U.S. at 267; Gonzalez, 602 U.S. at 676 (Jackson, J., concurring).

127 See notes 3–14 supra (citing cases).

128 See id.

129 See, e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283, 287 (1977); Nieves, 587 U.S. at 403; Budowich, 2025 U.S. App. LEXIS 13980, at *27; Balt. Sun v. Ehrlich, 437 U.S. 410, 417 (4th Cir. 2006).

130 See Grosjean v. Am. Press, 297 U.S. 233, 250 (1936); Minneapolis Star v. Minn. Comm'r of Revenue, 460 U.S. 575, 579–80 (1983); Rossignol v. Voorhaar, 316 F.3d 516, 521 (4th Cir. 2003).

131 See Grosjean, 297 U.S. at 250; Minneapolis Star, 460 U.S. at 579–80; Rossignol, 316 F.3d at 521; Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.").

132 See, e.g., Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977).

133 See Branzburg v. Hayes, 408 U.S. 665, 707–08 (1972); id. at 710 (Powell, J., concurring); see In re Grand Jury Proceedings, 810 F.2d 580, 585 (6th Cir. 1987); In re Grand Jury Proceedings (Scarce), 5 F.3d 397, 400 (9th Cir. 1993); Reps. Comm. for Freedom of the Press v. AT&T, 593 F.2d 1030, 1061 n.107 (D.C. Cir. 1978).

134 As the Supreme Court suggested in Arlington Heights, there may be an "extraordinary" case in which a subpoenaed reporter or news organization would be entitled to targeted discovery from the relevant government actors to bolster its bad-faith claim, specifically when the government has challenged the sufficiency of its prima facieshowing. See Arlington Heights, 429 U.S. at 268. Such discovery could both be tailored to avoid intrusion on grand jury proceedings themselves and be undertaken—at least initially—pursuant to a confidentiality regime supervised by the court.

135 See Branzburg, 408 U.S. at 680 ("the newsmen in these cases do not claim an absolute privilege against official interrogation").

136 Id. at 740, 743 (Stewart, J., dissenting).

137 See Lee Levine et al., 2 Newsgathering and the Law16.07 (4th ed. 2011) (citing cases).

138 See note 2 supra (citing cases).

139 376 U.S. 254 (1964).

10 Minneapolis Star v. Minn. Comm'r of Revenue, 460 U.S. 575 (1983).

141 Branzburg v. Hayes, 408 U.S. 665 (1972).

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