# In re Possible Violations of 18 USC 371, 641, 1503 > Court of Appeals for the D.C. Circuit · September 2, 1977 · 564 F.2d 567 URL: https://www.frixlaw.com/law-library/cases/7838515 ## Case - **Full name:** In re POSSIBLE VIOLATIONS OF 18 USC 371, 641, 1503. Appeal of Arthur MAREN - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** September 2, 1977 - **Citations:** 564 F.2d 567; 184 U.S. App. D.C. 82; 1977 U.S. App. LEXIS 11705 - **Precedential status:** Published - **Opinion:** Concurrence by Robinsoniii - **Judges:** III, Robb, Robinson, Wil - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7838515 ## How later opinions describe it (automated extraction) - concluding that Branzburg established a “newsman can claim no general immunity, qualified or otherwise, from grand jury questioning. On the contrary, like all other witnesses, he must appear and normally must answer. If the grand jury’s questions are put in bad faith or for th… ## Opinion text SPOTTSWOOD W. ROBINSON, III, Circuit Judge, concurring: I join in the court’s disposition of this appeal, and generally in the court’s opinion as far as it goes. I believe it helpful, however, to point out the limits of what we today decide. Appellant asserts a privilege both broad in application and substantial in its impositions upon the Government. The court, correctly in my view, declines to create a privilege generally available to religious officials and workers to refuse grand jury questions of any type unless and until the Govern *87 ment has met certain preordained conditions. 1 With the concessions made by appellant, he would not be benefited by — and thus no one has now to adjudge the efficacy of — a privilege narrower in its scope and less stringent in its burden as to what the Government must show to overcome it. In subscribing to the holding of the court, I do not imply that one appearing before a grand jury might not have some sort of qualified privilege to decline to answer some types of questions, such as those inquiring into religious beliefs and confidences. 2 I would not rule out the possibility that some grand jury questioning might so interfere with the free exercise of religion as to warrant some measure of judicial protection, even absent an allegation of bad faith. 3 Branzburg, 4 after all, rested in substantial part upon a judgment that forced disclosure of news sources in response to relevant grand jury questions would not significantly constrict the free flow of news. 5 More serious interference with First Amendment interests might call for correspondingly greater protection. We need not, of course, pass on the validity of a privilege of greater qualification than that suggested by appellant. Indeed, our duty as judges is to refrain from constitutional pronouncements that are not a matter “of strict adjudicative necessity.” 6 What we decide, and all we decide, is that appellant’s status as a minister in the Church of Scientology does not by itself privilege him to refuse — until the Government satisfies at the threshold a stringent four-part test — to answer the three questions put to him, which from aught that appears do not implicate free exercise values. . The four conditions for which appellant contends are discussed in the court’s opinion in text accompanying note 11. Nearly the same requirements were urged by Justice Stewart’s dissenting opinion in Branzburg v. Hayes, 408 U.S. 665, 743 , 92 S.Ct. 2646, 2681 , 33 L.Ed.2d 626, 676-677 (1972), but were rejected by a majority of the Supreme Court. . The concurring opinion of Justice Powell, who was also the fifth member of the Branzburg majority, rejects an automatic, broadly-applicable First Amendment privilege for reporters, but does suggest case-by-case protection of newsmen in some special circumstances. 408 U.S. at 710 & n.*, 92 S.Ct. at 2671 & n.*, 33 L.Ed.2d at 656 & n.*. Unlike Justice Stewart in dissent, Justice Powell would initially presume against a privilege, and thus would put the burden on the newsman to show that the specific First Amendment values he seeks to vindicate outweigh the governmental interest in effective functioning of the particular grand jury investigation. Id.; see United States v. Liddy, 155 U.S.App.D.C. 382, 383 , 478 F.2d 586, 587 (1972) (separate opinion of Leventhal, J.). . The First Amendment implications of governmental intrusion into religious confidences, for example, might be stronger than the “consequential, but uncertain” effects of intrusion into newsman-informant confidences. Branzburg v. Hayes, supra note 1, 408 U.S. at 690 , 92 S.Ct. at 2661 , 33 L.Ed.2d at 644-645 . The forced breach of informant confidences might be at least one step attenuated from the First Amendment interest in the free flow of news, while religious confidences arguably are directly protected by the Free Exercise Clause. Because appellant has not attempted to make out a prima facie showing of bad faith or abuse of the grand jury, although he occasionally hints at such concerns, we need not determine how a district court should respond to such a showing. Accordingly, I do not subscribe to the dicta in notes 1 and 10 of the court’s opinion. . Branzburg v. Hayes, supra note 1. . 408 U.S. at 690, 693-694 , 92 S.Ct. at 2661, 2662-2663 , 33 L.Ed.2d at 644-645, 646-647 . . Langston v. Johnson, 156 U.S.App.D.C. 5, 7 , 478 F.2d 915, 917 (1973); see Ashwander v. TVA, 297 U.S. 288, 346-347 , 56 S.Ct. 466, 483 , 80 L.Ed. 688, 711 (1936) (Brandeis, J., concurring). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7838515. Public record. Not legal advice.