1

We begin our analysis with Branzburg v Hayes. The year is 1972. Journalists in the United States
are gaining more legitimacy as government watchdogs and credible checks on corrupt power.
Jones 13 RonNell A. Jones, Rethinking Reporter's Privilege, 111 Mich. L. Rev. 1221 (2013).
Available at: http://repository.law.umich.edu/mlr/vol111/iss7/1
In the late 1960s and early 1970s, as the consolidated cases that would become Branzburg v.
Hayes developed in the lower courts, a series of "developments in the journalism profession"2 6
heightened the public's sense of the media's importance and magnified the demand for both
watchdog reporting and legal protections supporting those efforts. In the wake of the watershed
Pentagon Papers revelations27 and "on the eve of such major journalistic accomplishments as
the Watergate coverage,"28 the press found itself with a new, critical function of uncovering
governmental malfeasance in the war in Vietnam and elsewhere.2 9 Increasingly self-identifying
as enforcers of accountability in government in numerous ways, the media pressed for open-
government laws,30 pushed back against closed and sometimes recalcitrant administrations, 31
and took on a role as counterweights to government in a way never before seen. 32 A surge in
investigative reporting was accompanied by a surge in both the reputation of the press and the
reliance on unnamed sources.34 The probing approach and confrontational attitude toward
government-which had always existed to some degree among the American media 35 -took on
an entirely new vitality and "became, at least temporarily, the most conspicuous characteristics
of a free press. '3 6 The result was a marked transition in how reporters perceived their own
role. While in the 1950s "most journalists regarded themselves as no more than notetakers,' '37
stenographically delivering government information to readers, throughout the 1960s an
avalanche of aggressive journalism students produced a generation of young reporters who saw
themselves as watchdogs.38 At this zenith of American journalism, legal scholars proposed that
constitutional doctrines and statutory protections should expand to better protect the valuable
institution of the press. Arguing that high-ranking officials increasingly "made a display of their
contempt for truth" and flouted openness and accountability,3 9 scholars praised the media for
their role in uncovering corruption and urged development of legal doctrines that would better
enable such conduct. Perhaps most famously, Justice Stewart argued that the Founders drafted
the Press Clause of the First Amendment with the recognition that a "free press meant
organized, expert scrutiny of government."4 Other scholars likewise pressed the Court to better
"safeguard" the press and encouraged legislatures to develop "long overdue" laws to assist the
"free news media designed to serve the public."' The momentum to protect the press through
the law was palpable. Public views of the media followed suit. The "Fourth Estate"4 2 role of the
press in investigating and reporting governmental abuse was increasingly understood and
publicly celebrated.43 As journalism became more and more committed to investigative work,
public trust and confidence in the media soared.4 And when the reporters engaging in this
investigative work found themselves increasingly subject to subpoenas requesting confidential
source identities,45 the public was inclined to protect them. 46 Given this unique and powerful
moment in the history of the American press, it is little wonder that the complex and
multifaceted questions of whether and how to protect the anonymous provision of information
to a news reporter would be answered through a lens that focused on the media's role in a
democracy and the value of confidential sources to investigative reporting.47 2. The Litigation of
Branzburg It was against this backdrop of increasing reliance on confidential sources and
heightened focus on the media as a check on government that Branzburg reached the Supreme
Court. Indeed, the fact that the Court consolidated Branzburg with two other cases
demonstrates that, by 1972, the issue of how best to protect the press in its investigative work
involving anonymous sources had come to a head. Along with Branzburg-which itself comprised
two separate appeals-the Court also decided In re Pappas4 9 and United States v. Caldwell.5 "
The consolidated cases, litigated by media companies and with the intense support of amicus
press organizations,5 were understandably framed in journalist-focused ways and sought rights
that would be exercised by the news reporter rather than by her source.
Branzburg v Hayes kills the movement – the public becomes skeptical of anonymous sources
and press companies are dissuaded against articles that could incite legal conflict
Jessica Haney ’12, 10-29-2012, “Branzburg v. Hayes, much to debate, panelists say,” Indiana
University School of Journalism
Forty years after the controversial Supreme Court ruling on the First Amendment case
Branzburg v. Hayes, much is left open for debate. “The law is a little bit uneven, to put it mildly,”
said Anthony Fargo, director of the Center for International Media Law and Policy Studies at the
School of Journalism. Three professors and a lawyer gathered at the Union League Club in
Chicago Oct. 28 for “Branzburg v. Hayes at 40: The Evolution of the Journalist’s Privilege,” the
first event organized by the center, which launched in August. The College of Communication at
DePaul University and Union League Club’s Public Affairs Committee were co-hosts. In the 5-4
Branzburg v. Hayes decision, the Supreme Court ruled against a reporter’s privilege to keep
confidential sources anonymous, declaring that three journalists were legally obligated to
comply with the subpoenas they were issued and testify in front of a criminal grand jury.
However, Justice Lewis Powell’s concurrence acknowledged the “limited nature” of this
decision, stating that these rulings should be made on a case-by-case basis. “We still argue that
Justice Powell’s concurrence favors a balancing test,” said panelist Chuck Tobin, a partner at
Holland and Knight and chair of the law firm’s media practice team. Tobin encouraged the ruling
to be read as a 5-4 decision in favor of some kind of protection for journalists and their
confidential sources. While smaller court circuits have taken care in balancing the reporter’s
privilege with compelling subpoenas, journalists haven’t had as much success in the federal
courts. “Unfortunately the history has been pretty bleak,” said Tobin, who worked on getting a
federal shield law passed before WikiLeaks launched in 2006. One issue in passing the federal
shield law, which would mandate protection for journalists and their confidential sources, was a
lack of data regarding the sheer number of subpoenas that news organizations receive.
“Journalists were saying there’s an avalanche of subpoenas,” said panelist RonNell Andersen
Jones, an associate professor of law at Brigham Young University. Legislators initially viewed the
law as “a solution in search of a problem.” Jones took it upon herself to perform an empirical
study addressing the fear of subpoenas and the impact they have on newsgathering. The data
revealed that subpoenas are issued to the media with remarkable regularity, said Jones. She also
concluded that they have a substantial impact on newsgathering. For one, news organizations
fear the financial impact associated with a legal battle. Subpoenas also impose a practical
limitation on the watchdog function of the media, said Jones. They may cause journalists to
question whether an investigative piece is worth a looming legal battle. Worry that a chilling
effect from court decisions like Branzburg v. Hayes will interrupt the newsgathering process is a
legitimate concern. Jones hypothesized that the increase in subpoenas issued to news
organizations resulted in the decrease of the use of confidential sources. However, the direct
relationship was not supported. “When asked, none of these newsroom leaders were saying
‘because we fear a subpoena,’” said Jones. Rather, journalists prefer not to use confidential
sources in order to preserve the integrity of their work. Readers are suspicious of anonymous
sources, said Jones. There has been a cultural shift in the willingness for attorneys to issue
subpoenas, as well as in the way readers evaluate sources of news. “Branzburg really was
decided at this incredibly unique time in American history,“ said Jones. It was 1972, a heyday for
journalism among events such as the Watergate scandal and trusted journalists like Walter
Cronkite.
Branzburg’s case doesn’t exist alone outside the confines of history – the legacy of his decision
was directly tired to the companion cases of Pappas and Campbell, 2 reporters covering the
Black Panthers – flipping the script protects the ability of journalists to fairly cover the
movement.
Oyez n.d. "Branzburg v. Hayes." Oyez, 7 Sep. 2018, www.oyez.org/cases/1971/70-85
Facts of the case After observing and interviewing a number of people synthesizing and using
drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in
a Louisville newspaper. On two occasions he was called to testify before state grand juries which
were investigating drug crimes. Branzburg refused to testify and potentially disclose the
identities of his confidential sources. Similarly, in the companion cases of In re Pappas and
United States v. Caldwell, two different reporters, each covering activity within the Black
Panther organization, were called to testify before grand juries and reveal trusted information.
Like Branzburg, both Pappas and Caldwell refused to appear before their respective grand juries.
Question Is the requirement that news reporters appear and testify before state or federal
grand juries an abridgement of the freedoms of speech and press as guaranteed by the First
Amendment? No. The Court found that requiring reporters to disclose confidential information
to grand juries served a "compelling" and "paramount" state interest and did not violate the
First Amendment. Justice White argued that since the case involved no government intervention
to impose prior restraint, and no command to publish sources or to disclose them
indiscriminately, there was no Constitutional violation. The fact that reporters receive
information from sources in confidence does not privilege them to withhold that information
during a government investigation; the average citizen is often forced to disclose information
received in confidence when summoned to testify in court.

The Branzburg v Hayes movement was the root of a larger government operation against the
Panthers – the FBI’s shutdown of the Black Panthers was a white reactionary attack against
radical black potentiality. Voting aff is an ethically sound way of rectifying a previous injustice
under any theory.
Caldwell 6 Caldwell was a reporter with The New York Times in the late 1960s when he was
posted in San Francisco to report on the Black Panthers. When the FBI asked him to keep them
informed about the Panthers' plans, he refused and was prosecuted. His case eventually went all
the way to the Supreme Court, which ruled that reporters did not have the right to withhold
information about their sources. Ultimately, Caldwell was never called to testify. This is the
edited transcript of an interview conducted on July 6,
2006, https://www.pbs.org/wgbh/pages/frontline/newswar/interviews/caldwell.html Brackets
in Origional
Why did the FBI want you to testify about the Black Panthers? Well, at that time, I thought they
just wanted me to be a spy, someone on the inside who could tell them what was going on. ...
Now I believe that was very naive. I think they wanted to remove the reporters from covering
the Panthers. They wanted to isolate them the Panthers from the press. For one reason, the
Panthers were very effective in getting their message across in the media. They were really
genius at it. Secondly is I think the FBI did not want reporters there, because sooner or later,
either through good reporting or dumb luck, we would have stumbled onto their the FBI's law
breaking. And there was huge law breaking under the COINTEL counterintelligence program at
that time. ... The FBI said that the Panthers had made a threat to the President. I did have the
quotes about that in my story. ... The Panthers were saying, "And we recognize the government
is being oppressive, and we have our duty -- obligation -- to bear arms against the
government." ... What exactly were you reporting on when you were covering them? The
Panthers really first emerged in late '66. By 1968 they had begun to attract a lot of national
attention. Now, mind you, in '68, another huge event happened: That was the assassination of
Martin Luther King Jr. And Martin Luther King Jr.'s assassination ended with riots, more violent
riots in the country maybe than ever before. But it was an escalation of these riots that had
begun in black America in 1964. ... And then came this group of very young people in their
militaristic uniforms, black berets, black leather jackets. But most of all, they were embracing
the gun. ... There was genuine concern in America. ... By the time the Panthers began to emerge,
there was this serious concern in a lot of places, particularly in these newsrooms, that black
Americans were headed toward some kind of violent confrontation with the government. ... I
went to California in the fall of 1968, and really, most of my primary job, almost my entire job
for that period as a national correspondent with The New York Times was to cover the Black
Panther Party. You could say I lived with the party members through the next two years. ... My
editor wanted me to get on the inside, tell us where they going, what does this mean? And how
did the FBI come to be involved with you in your reporting on the Panthers? ... If you go back,
the very first story that I wrote about the Black Panthers was about guns. ... I thought it was my
great reporting. Later I realized they wanted me to see the guns, because they knew if I saw this
that I would print it in my story and it would be published in The New York Times, and then
everybody in the country would know that they were prepared, on some level, to back up what
they were talking about. When I wrote the first story, I came back to New York, and now I
believe somebody in the newspaper called the FBI and told them that I had come back, because
I was at my desk five minutes, and the receptionist called and said, "There's two gentlemen out
here to see you." I go out; it's two agents from the FBI. They want to know more about these
guns that I wrote about. They want to know more information. I told them, "Everything I have is
in the newspaper." They said, "That's not good enough," and they challenged me. ... One of the
things that people forget, in 1968, there was this Kerner Commission Report. President Johnson
had created a commission to look into the causes of these riots that were sweeping black
America at that time. One of the most astounding things is what Kerner came back with and said
a big part of the blame is the institution of the news media. Not only are they not telling
Americans what is happening in this country; even if they wanted to tell, they couldn't, because
they don't have the staffs to do it -- their staffs are all white. … It was a truly damning indictment
of the media. … ... This huge story was developing. The news media couldn't cover it, so they
began snatching black reporters from everywhere. ... The Los Angeles Times had a guy in the
sales, ads departments, and he's the only black in the building; they sent him out to Watts. We
used to call those battlefield commissions. They'd send you right on out. … We would all get to
know each other, because we would all see the other black journalists at riots or at the NAACP
National Association for the Advancement of Colored People, Urban League, black organization
conventions. … When I set foot on the ground, California, I checked in with The New York Times
bureau chief, Wallace Turner, and everybody. But I next went to see a fellow named Rush
Greenlee, who was the only black staffer at the San Francisco Examiner. I'd met him at a
convention. … He hooked me up so tight that, on the very first night, I'm over in Eldridge and
Kathleen Cleaver's house sitting in the living room, getting close to what I'm looking for. That
was the hookup that eventually led me to see the weaponry that I could write about in the
newspaper. So the black journalists, we had something going on that our editors really were not
aware of. ... How did it get to the point where the FBI came to you and said, "We want your
tapes and notes"? There came a period, after I was covering the Panthers maybe about 12, 14,
16 months -- I'm not sure -- where the FBI called me and asked if I would have regular meetings
informally with agents. They said: "We know that you're over there all the time and you're
seeing what's happening, and you're all around with them. We'd like you just to tell us what's
going on, be our eyes and ears on the inside." I told them of course I couldn't do that; "I can't
even have this conversation with you." But they persisted in it. They would call The New York
Times bureau almost every day in San Francisco. ... Then one day they told this woman ... who
was answering the phone: "Tell Earl Caldwell we're not playing with him. He doesn't want to tell
it to us, he doesn't want to talk to us, he can tell it in court." This was like on a Friday. On a
Monday, they ... came back with a subpoena for me to appear before a federal grand jury, and
they wanted all of my notebooks and tape recordings and anything else I had accumulated over
that period, about 16 months of reporting on the Black Panthers. And you said no? Oh,
absolutely. ... I began to create a little file in the back of The New York Times office, a private file,
apart from The New York Times file. ... stuff that I considered to be very sensitive, and I don't
want anyone messing with it. ... I had to destroy a lot of this very sensitive material before the
agent came back, before the marshal came back with the subpoena. ... Why did you feel like you
had to destroy material? If ... it wound up in the hands of the FBI, people were going to say to
me, "That was the intention all along." There was a virtual war going on by this time, escalating
between the Black Panthers and the authorities. ... Did you even consider the idea of turning
over your material? No, I never would have done that. It wasn't even possible to think about
doing that. ... There was no way that we as a generation of black journalists -- we were not going
to do that. You said that the Panthers were aware of the value of public relations and that they
wanted to get information to the Times. Did you ever worry that you were being spun by the
Panthers or that they were using you? Oh, there was no question. Everybody uses a reporter.
That's what happens. The police want to use you; the people want to use you. ... Of course the
Panthers wanted to use me. But the things that they wanted to use me for were part of the
stories that I wanted to tell. ... I'd meet them maybe 2:00 in the morning. We'd go off to some
church, and there would be guys and women -- they'd be in there preparing this breakfast for
these guys. ... To see what they were doing and to get to know these people was an awesome
story to tell. I was into it with all that I had in me. ...
Media spin on Black Panthers was key to the way the movement turned out – vote aff to reject
the white domination of print media
Pedersen 16 The Panthers and the Press by BRENDAN PEDERSEN 21 OCTOBER 2016, NEWS and
POLITICS, http://fourteeneastmag.com/index.php/2016/10/21/the-panthers-and-the-press/
Fifty years later, the whole thing sounds almost impossible — like a late-season episode from an
alternate history show. Take a moment to imagine the media apocalypse that would have
followed today. Life as we know it would have been consumed by the tweetstorms, the
helicopter fly-overs, the pundits melting over black militant terrorism. But media meltdowns
aren’t a recent phenomenon. Far from it. Whenever the press is tasked with explaining
something unprecedented to the rest of the world — anything from Sputnik to Ken Bone — they
can get it wrong. Its relationship with the Black Panther Party can be understood as a case study
of media framing: how initial encounters and racial awareness can define a movement, as well
as change the trajectory of the movement itself. Despite the well-publicized strides of Brown v.
Board of Education in 1954, the Civil Rights Act of 1964 and the Voting Rights Act of 1965, racism
didn’t exactly feel like it had left the building by 1966. Lyndon Johnson’s signing of the Voting
Rights Act was followed days later by the Watts Rebellion in California; Los Angeles roiled and
burned for almost six straight days, fueled by allegations of roadside police brutality against a
black motorist. To some, the urban riots that followed Watts suggested that the era of progress
by civil disobedience was over. Malcolm X — famously at odds with Martin Luther King —
rejected the idea that America would ever be purged of racism through peaceful protest or
legislation; white supremacy could never be destroyed using the “maker’s tools,” to borrow
from Audre Lorde. Instead, X insisted that black communities “in areas where the government is
either unable or unwilling to protect the lives and property of our people, that our people are
within their rights to protect themselves by whatever means necessary.” On Oct. 15, 1966,
Bobby Seale and Huey Newton formed the Black Panther Party for Self-Defense in Oakland,
California. As the name would suggest, members fought oppression through the armed
protection of minority groups that they believed were being victimized by police brutality.
Panthers drew local attention by driving through their neighborhoods, firearms displayed openly
while they policed the police. “Copwatching” was uncomfortable enough for California to repeal
their open carry laws via the Mulford Act, which did pass despite the Panthers’ dramatic
objection. Describing the Black Panther Party in a succinct way is difficult. The left tends to
describe them as martyrs, the right as terrorists. They were a black, nationalist, revolutionary
and eventually Marxist political party. They were relatively small in number, with only 2,000
registered members across the country at the organization’s height in 1969. They were not anti-
white; while other black power organizations, such as the Nation of Islam, rejected the help of
white progressives, the early Panthers welcomed “allies” who recognized their privilege and
other racist structures. Contrary to popular perception both then and now, no part of the
Panther platform advocated for racial separatism. Bobby Seale famously wrote that “we do not
fight racism with racism. We fight racism with solidarity.” But what many people remember
about the Panthers isn’t some fuzzy notion of solidarity; it’s the violence. Rhetorical and
otherwise, the Black Panther Party has defined itself by the violence it called for, employed and
experienced. Panther leader Huey Newton was convicted of manslaughter in a shootout that
killed Oakland P.D. Officer John Frey in 1967 (though the trial was eventually thrown out on
appeal). Bobby Hutton was killed by Oakland police during what some Panthers later admitted
to being an ambush in 1968. In 1969, Panther leader Fred Hampton was assassinated during an
FBI raid in Chicago. And those are just the ones that made national news. Outside these
instances of direct involvement, it’s impossible to quantify the impact that the organization’s
rhetoric — such as the motto “the only good pig is a dead pig” — had on broader crime trends.
However, in a congressional hearing with a former editor of the Black Panther newspaper in
1970, U.S. Rep. L. Richardson Preyer tried when he opened with this: During the 10-year period,
1960–1969, there were 561 law enforcement officers feloniously murdered while protecting life
and property. In 1969, the last year for which complete statistics are available, there were
35,202 assaults on police officers, 11,949 resulting in injury. Eighty-six police officers, a 34-
percent increase over 1968, were killed. While there are no complete statistics for 1970, the
trend, if anything, would appear to be increasing. Then, he cited the source of the idea that the
increasing violence against police officers was from Panther rhetoric: News accounts have
alleged that certain types of these killings and assaults have resulted from Panther activities.
Statements by Panther leaders and remarks in their newspaper would seem to leave little doubt
that the Panthers attempt to encourage physical attacks on police. If we assume that Preyer
speaks for the mainstream American conscious, this implication of mass media raises a certain
dilemma. If the Panthers were damned by the media’s coverage, why would they seek it out?
And if the media was opposed to Panthers’ message, why would they cover it at all? Exposure is
critical to the success of any social movement. For the Panthers, national ambitions required
national press. The best way to find that exposure in the 1960s was through the news. It could
be a local morning radio show or a senator’s op-ed in the Wall Street Journal — the aim was the
same. Sidney Tarrow, a political theorist at Cornell University and author of Power in
Movement: Social Movements, Collective Action, and Politics, writes that much of the struggle
in activism is the tug-and-pull of competing frames. “While movement organizers actively
engage in framing work,” he said, “not all framing takes place under the auspices of control…
they compete with the framing that goes on in the media, which transmit messages that
movements must attempt to shape and influence.” In other words, the art of publicity is a sort
of cycle: activists put out their message in the hopes that the media will pick it up, the media
decides if and how to report that message, and the activists have to adjust their frame
accordingly. Bobby Seale and Huey Newton had seen what happened to a movement when the
press lost interest. Ten years before the Party was founded, desegregation activists in the South
tried and failed to capitalize on Brown v. Board of Education. Writing on the decision’s fallout,
Harvard professor Michael Klarman noted that one of the reasons desegregation took so long to
take hold was a lack of public awareness. “Media attention quickly waned,” he said, “and
demonstrators usually failed to accomplish their objectives.” Klarman then pointed to the more
bloody incidents of the Civil Rights Movement; the media started to pay attention when the
backlash against black protesters became violent, and only then did public opinion begin to shift.
In 1967, President Lyndon B. Johnson assembled the National Advisory Commission on Civil
Disorders to study the race riots of his presidency. A year later, it released its final report with an
answer as to why the unrest took the news media by surprise with a shocking frankness; “The
media report and write from the standpoint of a white man’s world,” the commission declared,
and “fewer than 5 percent of the people employed by the news business in editorial jobs in the
United States today are Negroes.” Johnson ignored the report and rejected its
recommendations. The question, then, is how the media — an almost entirely white, elite-
educated workforce lead by white, elite-educated men — navigated and presented the
country’s first quasi-mainstream black power group. Was the coverage fair? No, the Panthers
were not perfect and yes, some members encouraged and committed felony crime. Despite
that, the themes and ideals they espoused 50 years ago carry a certain element of timelessness
— particularly as they’re echoed by activists with the Black Lives Matter movement today. The
Panthers pushed police brutality into the national dialogue long before you could find it on
YouTube. Print news has always been one of the most foundational parts of modern journalism,
supplying a huge share of the information broadcast by all other forms of media. According to a
Pew Research study on Baltimore’s “news ecosystem” from 2010, 61 percent of all stories
containing new information originated from a print source. Take one step back; because only 17
percent of the stories examined by Pew in the study had new information at all, the 10 percent
of news that print stories came up with accounted for 50 percent of all the information that
circulated in Baltimore. Second, print journalism also constitutes a significant amount of
academic influence. In a 2007 paper, Rima Wilkes and Danielle Ricard argued that elite print
media, such as the New York Times, often set a media narrative for the rest of the country.
Starting in the 1970s, academics increasingly turned to newspapers as a reliable source of the
information. Just as historians would begin to analyze the Black Panthers, newspaper accounts
would be more than happy to give their side of the story. Minutes later, a few dozen black
activists walked into the middle of the California State Legislature to protest the Mulford Act
with guns of their own. One protester read a statement condemning the disarmament of black
citizens while the press corps asked who they were, what they were doing, exactly. You may
notice on your second go-around that the language is somewhat diplomatic. Activists walked
into the building, entered the chamber, asked to speak to their legislators and got their picture
taken. I could replace “activists” with “Girl Scout Troop 191” and you’d have a lovely field trip.

Using the media as a site of defense of the black party is key – it revives the moment and gives
us a key understanding of contemporary social problems. 
Meredith Roman ’16, “The Black Panther Party and the Struggle for Human Rights,” Spectrum: A
Journal on Black Men, Vol. 5, No. 1, The Black Panther Party (Fall 2016), pp. 7-32
The Panthers’ discussions of human rights, as Robinson’s comment reminds us, coexisted with
the use of the term “pig,” a practice discussed earlier, and irreverent references to US leaders as
murderers. Such colorful rhetoric contributes to the lack of attention to the Panthers as waging
a movement for human rights. Authorities cited this rhetoric as justification for greater
repression, which many White Americans supported either actively or silently. To the charge
that their discourse of resistance was profane, the Panthers “countered that extreme oppressive
conditions warrant extreme rhetorical responses in order to mobilize opposition to political
tyranny” (Monges, 1998, p. 141). And such rhetoric did not translate into practice throughout
the country. Although the Panthers spoke of armed insurrection, the party most often preached
and practiced self-defense and serve the people programs (Jones, 1998; Jeffries, 2010). As
Molefi Kete Asante (2015) instructs, “the threat of violence with its potentiality is a more
effective strategy for gain- ing change” than actually committing violence. Yohuru Williams
(2008) likewise notes, “all too often, getting a ‘little piece of this earth’ for so-called minorities
has involved threatening to destroy everyone else’s piece” (p. 258). However, the FBI and the
press blurred “the distinction between verbal violence and frustration and hard-core
revolutionary activity” (O’Reilly, 1989, p. 297). As Jane Rhodes (1999) avers, “the press failed to
differentiate between the theatrics and hyperbole of the Black Panther Party and any real threat
that they posed to individual whites and national safety” (p. 114). This is best evidenced in the
Panthers’ calls to “Off the Pig.” Not only was this famous exhortation meant to convince Black
people that resistance was possible, but also to encourage police to be more reluctant to violate
the human rights of any Black person (Widell, 2008; Rahman, 2008). Just as importantly, the
primary way that the Panthers sought to “Off the Pig” was by signing petitions to gain com-
munity control of the police (“Petition Statement for Community Control of the Police,” 1969, p.
16; “A Case for Community Control,” 1969, p. 5; Brown, 1970, pp. 6, 14). In an argument
disturbingly relevant to 2016, David Hilliard (1969a) expressed hope that the decentralization of
the police will transform pigs into “brothers” because “pigs,” Black (“Negro”) and White, “have
been conditioned to kill black people” (p. 5). Thus, in their quest to restore the humanity of
Black people, the Panthers also recognized the urgency of rehumanizing law enforcement
officials or transforming pigs into police officers (i.e., individuals who respected the human
rights of African Americans). The BPP’s “unviolent” tactics, which included their petition
campaign for community control of the police, are often overlooked or not treated seriously
(especially for the period prior to 1972) not simply because of the party’s own rhetoric and the
legacies of COINTELPRO and the Cold War, but also because of the nonviolence or self-defense
dichotomy that obscures “the complexity and flexibility” of the Black liberation struggle (Crosby,
2011). The failure to conceive of the Panthers as leaders of a human rights movement is also
inextricably linked to mainstream White America’s persistent rejection of any notion of Black
self-defense. This tragic reality manifested in the 2013 acquittal of George Zimmerman, the
adult man who shot and killed the unarmed, 17-year- old Trayvon Martin in Sanford, Florida. As
Robin Kelley (2013) points out, US politicians and advocates of gun rights insisted in 2013 that
Sandy Hook school teachers and administrators (and by implication school authorities
nationwide) should have been armed in order to prevent the tragic shooting death of school
children. At the same time, they did not insist that Martin too (and by implication other young
African American men who could be hunted by the Zimmermans of the world) should have been
armed to prevent his tragic death. Martin, like other Black children and youth, was not
presumed innocent (Kelley, 2013). As Kelley’s analysis suggests, the lack of attention to the Black
Panthers as human rights activists is furthermore connected to America’s continued disavowal
of Black people’s humanity, a systemic disavowal that encouraged the Panthers to invoke the
language of human rights in the first place. As critical race theorists maintain, in the White
supremacist society of the United States, Black people, like other non-White groups, are viewed
as a race while Whites are not raced but treated as the norm or simply human. Such a scenario
empowers the voice of Whites as objective; it gives them the ability to speak for all of humanity.
In contrast, the views of non-Whites are dismissed as inherently partial since they can only
speak for members of their so-called race rather than humanity as a whole
2
We defend a counterfactual recollection of the Branzburg v Hayes decision – the 1AC method
imagines a 5-4 decision in favor of a reporter’s privilege.
Abrams et al 7 Floyd Abrams First Amendment attorney Earl Caldwell Reporter Lucy Dalglish
Executive director, The Reporters Committee for Freedom of the Press Randall Eliason Former
prosecutor Mark Feldstein Professor, The George Washington University James Goodale First
Amendment attorney Bill Keller Editor, The New York Times William Bradford Reynolds Former
assistant attorney general, Branzburg: the key Supreme Court decision, Feb 13,
2007 , https://www.pbs.org/wgbh/pages/frontline/newswar/tags/branzburg.html
So it went up from the District Court -- And then it was ultimately appealed to the Court of
Appeals, and they affirmed it, effectively. And then it went to the Supreme Court. ... But it went
up with other cases. ... What happened was all of a sudden, the same thing happened
throughout the country. ... In Massachusetts and in Kentucky, two prosecutors, for whatever
reason -- perhaps they saw what the government was doing -- sought to get information for its
purposes for the state. ... In the case of Branzburg, the state prosecutor wanted information
that Louisville Courier-Journal reporter Paul Branzburg had, effectively, about making marijuana.
... In that case he lost, so he went up to the Supreme Court as a loser, along with Earl Caldwell, a
winner, and Massachusetts television reporter Paul Pappas, a loser. So those three cases were
combined, and I lost the name Caldwell because C comes after B. Branzburg is the name of the
case. And what did the Branzburg case decide? ... When the case came out and everybody had
to read it quickly for next day's paper, it was reported that the case decided the press had no
rights at all with respect to protecting this information. There was no reporter's privilege in the
federal courts. ... I just wasn't going to buy that argument. What do you mean, you weren't
going to buy the argument? It's called the Supreme Court for a reason. I know, but there's
always a way to win press cases, I think. ... This is after the Pentagon Papers suits, by the way --
starts before, ends after. This is 1972. I won the Pentagon Papers all by myself, you know. ...
After a while it goes to your head. But I could not as a practical matter go back to my pals in the
newsroom and say, "I can't protect you because the Supreme Court has taken all your
protection." You can't do that. ... So I went back. I sent my family away, locked myself into a
room in my apartment. The air conditioning was turned off, and I sweated out five pounds and a
theory how the Branzburg case actually created a reporter's privilege for reporters, even though
it seemed to have done the exact opposite. You created a fantasy in your own mind? (Laughs.)
Some have said so, yes. Well, what happened was, in the Supreme Court you get nine votes, and
in this particular case, you get ... four opinions ... against us, four for us, and one in the middle,
Justice Lewis Powell. Powell's the middle guy. Powell says effectively, "OK, I'm with you against
the press on this case -- that's the grand jury subpoenas, under these circumstances -- but in
other cases, there should be an ability for the press to deal with the subpoenas." He didn't spell
out exactly what he meant. So I said, well, look, if ... he's one and I've got four over here, last
time I knew that made five, and that's more than the four that voted against me. So if I get
another case that is perhaps a little different than Caldwell's case, I will argue that those five
votes create a reporter's privilege. … I had called a whole bunch of people before the case
started to see if they would support me, The New York Times, in the Supreme Court. Well, I
went back to all these people and I said: "I'm going to have a seminar and we're going to discuss
freedom of the press. We're also going to discuss my little article reinterpreting the Branzburg
decision, and I'll see if I can persuade you to take that article and go back and fight this thing out
state by state by state by state until we end up with enough body of law so that there's
protection for reporters." … I've been doing that for 35 years now, every year. ... Our theory
was, and is still, ... go back and fight this thing out state by state by state by state until we end
up with enough body of law so that there's protection for reporters. ... Get the state courts and
the federal courts sitting in a state area, see if they can adopt my idea in this ... article; get lots
and lots of cases, and we'll build up a whole body of protection for reporters. That was the
theory. ... 
To clarify, a counter-factual focus would demand the analysis of the resolution counterfactually
so that we have a debate over how reporter confidentiality played out in the past and evaluate
the outcomes of an alternate history. Prefer our methodology for debate:

White Contigency: The ability for whiteness to mask its history allows whiteness to normalizes
itself as ahistorical. Oppression becomes “natural”. Unraveling how contingent junctures in
history could have played otherwise is key to deconstruct white supremacy. 
Yancy 4 George Yancy Prof. Philosophy @ Dusquene, “What White Looks Like,” 2004
“A genealogical examination of whiteness, following the lead of Foucault and Nietzsche, involves
showing how whiteness is not a natural given, or has to do with an ontology that cuts at the
joints of nature, but a kind of historical emergence (Entstehung). Upon examination, whiteness,
contrary to its historical performance as a natural occurring ring kind, emerges as a value code
deployed by a certain raciated (white) group of people that delimits and structures what it
deems intelligible, valuable, normal, abnormal, superior, inferior, beautiful, ugly, and so on. As
the presumed sovereign voice, treating itself as hypernormative and unmarked, whiteness
conceals its status as raciated, located, and positioned. Because of its presumed ahistorical
stability and ontological "givenness," whiteness is an appropriate target for genealogical
examination. Commenting on the value, aim, and practical consequences of genealogy,
Alexander Nehamas, with Nietzsche in mind, writes: ‘Genealogy takes as its objects precisely
those institutions and practices which, like morality, are usually thought to be totally exempt
from change and development. It tries to show how such changes escape our notice and how it
is often in the interest of these practices to mask their specific historical origins and character.
As a result of this, genealogy has direct practical consequences because, by demonstrating the
contingent character of the institutions that traditional history exhibits as unchanging, it creates
the possibility of altering them." Nehamas's point concerning how certain practices attempt to
mask themselves is key to understanding whiteness; for the hegemony of whiteness is partly
contingent upon its capacity to conceal or mask its own historicity, thus representing itself as
universal, decontextual, and ahistorical. With equal insight, Fred Evans writes: ‘The values and
practices that genealogists evaluate present themselves as "universal" or as "true" in an
unqualified sense. By revealing the value-creating creating power that these values and
practices serve and disseminate, however, genealogists show their "grounds" or basis-how it
was possible for them to appear universal or true without qualification-and their limits, that is,
their necessary partiality. In carrying out this critique, moreover, genealogy itself is a value-
creating power, one opposed to the "life-denying" and hegemonic tendencies of practices that
the genealogy attempts to critically evaluate and overcome.‘ Under the spell of whiteness,
blacks internalize a set of values and practices that create a form of self-ressentiment. In short,
blacks become, through a process of white discipline, white indoctrination, and sheer white
brute force, a reactive force toward their very own being. One wonders how many Africans fully
internalized a negative will to power as they crossed the Middle Passage. As will be shown,
Pecola Breedlove fully internalized the seductiveness of white beauty as a form of universal
normativity. In Foucauldian terms, Pecola's socially constructed self vis-a-vis whiteness
imprisons her body. Her body is trapped, as it were, within an internalized reactive value-
creating force of self-denigration. All that Pecola sees is her "ugliness," a construction that is
deeply historically embedded in neoclassical conceptions of beauty adopted by both Europe and
America. Young Pecola is no match for the powerful aesthetic regime of whiteness. As George
M. Frederickson notes: "The milky whiteness of marble and the facial features and bodily form
of the Apollos and Venuses that were coming to light during the seventeenth and eighteenth
centuries created a standard from which Africans were bound to deviate." In short, Pecola sees
herself, judges, condemns, and curses her black body as a result of the internalization of the
historical norms of whiteness.”
And, factual framings inevitably curve judgments of contingency. Predictive analysis skews
analyst to accept the historical emergence of the status quo. 
Tetlock and Lebow  (“Poking Counterfactual Holes in Covering Laws: Cognitive Styles and
Historical Reasoning” 01 PHILIP E. TETLOCK is Burt Professor of Psychology and Political Science
and RICHARD NED LEBOW is Professor of Political Science, History, and Psychology, the Mershon
Center, The Ohio State University, Columbus.) Page 834  
“Drawing on the literature on heuristics and biases as well as the work on cognitive styles, we
designed Experiment 1 to test two hypotheses. First, thinking about counterfactual scenarios
(that pass some minimum plausibility threshold) should tend, on average, to increase the
perception that those scenarios once had the potential to materialize and may even once have
been more likely than the concatenation of events that actually materialized. Linking this
prediction to research on cognitive style, we also expect that the effect should be more
pronounced among respondents with low need for closure. Second, Tetlock (n.d.) shows that
there are two logically but not psychologically equivalent methods for scaling experts'
perceptions of historical contingency. One imposes a factual framing on the historical question
and solicits inevitability-curve judgments. For example, in Experiment 1, experts on the Cuban
missile crisis were asked at what point some form of peaceful resolution became inevitable.
They then were asked to trace how the subjective probability of that class of outcomes waxed or
waned in the preceding days. The other method imposes a "counterfactual" framing on the
historical question and solicits impossibility curve judgments. In Experiment1, for example,
experts also were asked at what point they believe all alternative, more violent endings of the
crisis became impossible and then were asked to trace how the subjective likelihood of that
class of outcomes waxed or waned in the preceding days. It was not expected that experts
would be blatantly inconsistent: Their judgments of the retrospective likelihood of some form of
peaceful outcome between October 16 and 29, 1962, should generally mirror their judgments of
the retrospective likelihood of alternative, more violent, outcomes when those judgments are
obtained back to back from the same respondents. Logic and psycho-logic should coincide when
the principle or binary complementarity is transparently at stake, and experts can plainly see
that they are assigning so much probability to both x and its complement that the sum will
exceed 1.0. But logic and psycho-logic do not always coincide. Factual framings of historical
questions effectively invite experts to engage in hypothesis confirming searches for potent
causal candidates that create an inexorable historical momentum toward outcome x. Analysts
feel that they have answered the question when they have convinced themselves that x had to
happen approximately when and in the manner it did. By contrast, counterfactual framing of
historical questions effectively invites analysts to look long and hard for causal candidates that
have the potential to reroute events down radically different event paths. Accordingly, we
expect systematic anomalies in retrospective likelihood judgments when we compare the
judgments of two groups of experts, one of which completed the inevitability curve exercise and
the other of which completed the logically redundant impossibility curve exercise, but neither of
which had yet seen or worked through the other group's exercise.”
3. Decision Making Skills – Hindsight bias affects understanding by making it difficult to be
receptive to alternative paths and outcomes. 
Lebow 1 (RICHARD NED LEBOW is Professor of Political Science, History, and Psychology, the
Mershon Center, The Ohio State University, Columbus “What's So Different about a
Counterfactual? Virtual History: Alternatives and Counterfactuals by Niall Ferguson; The Pity of
War: Explaining World War I by Niall Ferguson”, World Politics, Vol. 52, No. 4 (Jul., 2000), pp.
550-585, http://www.jstor.org/stable/25054129)
“The disciplinary tendency to privilege structural explanations is reinforced by the "certainty of
hindsight bias."23 Baruch Fischoff has demonstrated that "outcome knowledge" affects our
understanding of the past by making it difficult for us to recall that we were once unsure about
what was going to happen. Events deemed improbable by experts (for example, peace between
Egypt and Israel, the end of the cold war) are often considered "overdetermined" and all but
inevitable after they have occurred.24 By tracing the path that appears to have led to a known
outcome, we diminish our sensitivity to alternative paths and outcomes. We may fail to
recognize the uncertainty under which actors operated and the possibility that they could have
made different choices that might have led to different outcomes.”
And, counterfactual reasoning is effective at undermining hindsight bias. Comparative empirics
prove 
Lebow 2 (RICHARD NED LEBOW is Professor of Political Science, History, and Psychology, the
Mershon Center, The Ohio State University, Columbus “What's So Different about a
Counterfactual? Virtual History: Alternatives and Counterfactuals by Niall Ferguson; The Pity of
War: Explaining World War I by Niall Ferguson”, World Politics, Vol. 52, No. 4 (Jul., 2000), pp.
550-585, http://www.jstor.org/stable/25054129)
 “Many psychologists regard the certainty-of-hindsight effect as deeply rooted and difficult to
overcome. But the experimental literature suggests that counterfactual intervention can assist
people in retrieving and making explicit their massive but largely latent uncertainty about
historical junctures, that is, to recognize that they once thought, perhaps correctly, that events
could easily have taken a different turn. The proposed correctives use one cognitive bias to
reduce the effect of an other. Ross et al. exploited the tendency of people to inflate the
perceived likelihood of vivid scenarios to make them more responsive to contingency. People
who were presented with scenarios describing possible life histories of post-therapy patients
evaluated these possibilities as more likely than did members of the control group who were not
given the scenarios. This effect persisted even when all the participants in the experiment were
told that the post-therapy scenarios were entirely hypothetical.25 Philip E. Tetlock and the
author conducted a series of experiments to test the extent to which counterfactual un packing
leads foreign policy experts to upgrade the contingency of international crises. In the first
experiment one group of experts was asked to assess the inevitability of the Cuban missile crisis.
A second group was asked the same questions but was given three junctures at which the
course of the crisis might have taken a different turn. A third group was given the same three
junctures and, in addition, three arguments for why each of them was plausible. Judgments of
contingency varied in proportion to the degree of counterfactual unpacking.26 There is every
reason to expect that scholars exposed to counterfactuals and, better yet, forced to grapple
with their theoretical consequences will also become more open to the role of contingency in
key decisions and events.”
Thus, the role of the ballot is to vote for the debater that best analyzes junctions of history.