2022 marks the 50th anniversary of the historic U.S. v. Caldwell Supreme Court case

Solyana Bekele | Staff Writer

In the echoey room of the Scripps Howard auditorium, Earl Caldwell, a journalism professor at Hampton University and defendant for the historic Supreme Court case U.S. v. Caldwell, recalled the tumultuous time spent reporting on the Black Panther Party (BPP) for The New York Times. 

This case held that journalists don’t have any special protection not afforded to non-journalists under the free press clause of the First Amendment. This decision later inspired some states to adopt shield laws that protect journalists and their sources’ confidentiality. 

Caldwell’s reporting, however, landed him in court, dealing with the constitutional blow that the Supreme Court Justices of 1972 dealt journalists the nation over. 

“I would never go back to the Black Panther office again,” said Caldwell when the FBI first approached him to become an informant. “They would always call the office,” remembered Caldwell. 

Caldwell was “gathering information for the newspaper to disseminate to the public,” and whatever non-confidential information the FBI wanted was already published.

On January 30, 1970, the FBI issued Caldwell his first subpoena–an order to appear in front of a Grand Jury–and reveal any information he received about the BPP in confidence or not. Though two more subpoenas were issued, Caldwell never showed nor testified, believing this to be an encroachment on his First Amendment protection guaranteed him as a journalist.

Caldwell appealed the subpoenas, and the Ninth Circuit Court of Appeals ruled in his favor stating that “Mr. Caldwell shall not be required to answer questions, concerning statements made to him, or information given to him by members of the Black Panther Party,” unless specifically given to him for publication. 

“We won this case in California,” recalled Caldwell.

When this case reached the Supreme Court, Caldwell remembered his lawyer, Anthony Amsterdam, confidently saying, “this is one of the easiest cases [I’ve] ever had to argue to the Supreme Court.”

In his oral argument, Amsterdam stated that not only testifying but appearing in front of a Grand Jury alone would disrupt the “free flow of information.” This “free flow” is also protected by the First Amendment, argued Amsterdam. 

Despite Amsterdam’s conviction, the Supreme Court ruled against the defendants, reasoning that the First Amendment does not grant journalists special privilege to refuse to show up and testify when so ordered. 

Though Caldwell’s time with the Panthers was interrupted, his articles remain. According to a search on ProQuest Historical Newspapers, in 1970 alone, the Times published 1,217 articles containing the words “Black Panther(s).” 

Though he didn’t write all of the Times articles on the Panthers, Caldwell’s stories were a significant part of the Panthers’ public image. “I wrote a lot of stories about the Black Panthers,” said Caldwell.

Pondering the late nights spent with the Panthers, Caldwell says, “There was a lot of brilliance. For guys that were so young, there was a lot of strength.” Caldwell mentioned the Panthers’ different programs they had for recording police activity and their community service programs.

“They would feed the kids as much as [they] wanted to eat,” laughingly recalled Caldwell in reference to the Panthers’ famous Free Breakfast Program. In his June 15, 1969, Times article, Bobby Seale, co-founder of the BPP, tells Caldwell, “we are feeding over 1,000 kids every day right here in the bay area.”

Caldwell also grew friendly with David Hilliard, Chief of Staff for the BPP, who Caldwell describes as the “day-to-day guy” because the BPP’s founders, Huey P. Newton and Bobby Seale, were in jail for separate charges. 

Their close relationship, though professional, greatly dismayed the FBI. This worsened after Caldwell’s article on December 14, 1969. Times quoted Hilliard advocating for the “direct overthrow of the Government by way of force…because we [the BPP] recognize it as being oppressive.” 

Though Caldwell never returned to the Panthers’ offices after the FBI approached him, the first-hand reporting he did made him a celebrity and a curiosity of sorts. How did the Panthers, an organization that was simultaneously loved and feared by the Black community, trust an outsider to allow him in close quarters and report on their activities? 

It wasn’t that the Panthers necessarily loved him, but that “everybody wanted to use the newspaperman,” mused Caldwell. Caldwell emphasized that the Times was an international paper, and the Panthers were well aware. They used the massive coverage they gained, though not always positive, as a means to globalize their politics and worldview. 

“The big thing is, and I think this may be their legacy, they really emphasized and brought the gun into the center,” Caldwell said.

Though their politics and tactics remain intensely debated, Caldwell’s reporting remains a historical artifact quenching the thirst of those who aspire to truly understand the revolutionary organization that was the Black Panther Party. 

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