## Facts

- A federal grand jury in the District of Massachusetts was convened to investigate the unauthorized disclosure of the Pentagon Papers and possible violations of federal law, including the Espionage Act.
- Samuel L. Popkin, an assistant professor of government at Harvard University who had written about the Vietnam War and U.S. policy in Southeast Asia, was subpoenaed to testify because investigators believed he might identify sources with knowledge of the leak and of people involved in preparing the Pentagon Papers study.
- Popkin sought court relief to limit or block questioning that, in his view, would force him to reveal information obtained in his work as a scholar and teacher, including confidential source information and research-related communications.
- The district court denied Popkin’s requests and ordered him to appear and testify before the grand jury.
- When he testified, Popkin answered several questions about his knowledge of the Pentagon Papers, stating that he had not seen them, had no nonpublic knowledge of how newspapers obtained them, and had not received definitive information that someone possessed the papers in Massachusetts before a particular date.
- Popkin nevertheless refused to answer nine grand-jury questions. Some questions sought the identities of the people who told him which individuals participated in the Pentagon Papers study; others sought the sources for information that caused him to believe someone possessed the Pentagon Papers before a certain date.
- The district court held Popkin in civil contempt for refusing to answer and imposed coercive sanctions intended to compel compliance.
- Popkin appealed, arguing primarily that the First Amendment and academic freedom protected him from being compelled to disclose confidential source information, and also arguing that alleged electronic surveillance required a government response before he could be forced to testify.

## Issues

1. Whether the First Amendment or academic freedom creates a “scholar’s privilege” permitting a university professor to refuse to answer grand-jury questions that could reveal confidential sources or research communications.
2. Whether Popkin made a sufficient claim of unlawful electronic surveillance to require the government to “affirm or deny” surveillance under 18 U.S.C. § 3504 before compelling answers.
3. Whether the district court erred in denying Popkin’s requested protective restrictions and related relief as a condition of grand-jury testimony and in holding him in civil contempt for refusing to answer.

## Decision

- The First Circuit affirmed the district court’s civil contempt order.
- The court rejected Popkin’s asserted First Amendment “scholar’s privilege” as a basis to refuse answering the grand jury’s questions.
- The court held Popkin had not made an adequate, nonconclusory claim of unlawful electronic surveillance to trigger the government’s duty to respond under 18 U.S.C. § 3504.
- The court found no reversible error in the district court’s denial of Popkin’s requested protective relief and related requests in the grand-jury setting.

## Legal Principles

- A grand jury has strong investigative authority, and a witness must testify unless a recognized constitutional, statutory, or common-law privilege applies.
- The First Amendment does not create a general testimonial privilege allowing witnesses to withhold information from a grand jury; academic freedom is an interest considered in context, not an evidentiary privilege that blocks questioning in a good-faith criminal investigation.
- Courts generally do not require the government to litigate, in advance, the full justification for each grand-jury question when the inquiry is within the grand jury’s lawful mission and not shown to be harassing or conducted in bad faith.
- Under 18 U.S.C. § 3504, a witness must make a concrete, specific claim of unlawful electronic surveillance; vague suspicion or conclusory allegations do not require the government to affirm or deny surveillance.
- Civil contempt may be used coercively to compel compliance with lawful grand-jury questioning when the witness refuses to answer without a valid privilege.

## Conclusion

The First Circuit upheld civil contempt sanctions against Samuel Popkin after he refused to answer grand-jury questions in the Pentagon Papers leak investigation, holding that the First Amendment and academic freedom did not give him a scholar’s privilege to withhold source and research-related information and that his unsupported allegations of electronic surveillance did not trigger a government duty to respond under § 3504.


U.S. v. Doe, 460 F.2d 328 (1972)