I concur in the majority’s holding that the respondent court had the right to make inquiry of petitioners as to whether a defendant or court officer had violated its order but that Evidence Code section 1070 gives to petitioners a privilege not to disclose the confidential source of their news stories except as the source was one of those persons. I also concur in the majority’s recognition that the privilege should be given a broad rather than a narrow construction to the end that it immunizes petitioners from contempt for refusing to answer any question which possibly would tend to disclose a protected source. However, in spite of such declaration, in my view the majority unduly has restricted the privilege in its application to the questions put to petitioners. Further, the majority has wrongly *232upheld petitioners’ contempt for refusing to answer questions which, while perhaps outside the privilege, clearly were beyond the subject matter of the inquiry. Finally, I believe that petitioners have a qualified First Amendment and California constitutional privilege of nondisclosure which gives added weight to section 1070 and required respondent to engage in a delicate balancing process before it could question petitioners as to the source of their information. For these reasons petitioners’ contempt convictions should be reversed.
Limited Scope of Inquiry
Because the statute is to be broadly construed, the scope of a “Farr” type hearing is necessarily limited. The limitation results from the following considerations: first, the word “source” in section 1070 must be defined to include not only the identity of any person who may have furnished information to the newsmen, but also the information itself in whatever form it may have been received. Thus, if a copy of the transcript was given to petitioners, the copy is a protected source and petitioners cannot be compelled to disclose whether they received a copy of the transcript, nor can they be required to produce it for examination. On the other hand, if the petitioners did not receive a copy of the transcript but someone read its cdntents to them over the telephone, any records pertaining to that communication, either in the form of a tape recording, notes, or other memoranda, would be a “source” within the privilege. This interpretation is supported by the language of subdivision (c) of section 1070 which provides that privileged “unpublished information” includes notes, out-takes, photographs, tapes or other data of whatever sort, whether or not information based upon or related to such material has been disseminated.1 While there is no California case in point, the Pennsylvania Supreme Court in In re Taylor (1963) 412 Pa. 32 [193 A.2d 181, 7 A.L.R.3d 580] in interpreting a similar statute has held that the right of nondisclosure of a “source of any information” received by a newsman includes not only the identity of the person furnishing the information, but documents, inanimate objects and all other possible sources in whatever form it. may be.
*233Second, placing the burden on the newsman to prove that his answer / will eventually lead to a disclosure of his source well may endanger the source and emasculate the privilege. This very problem was resolved by the United States Supreme Court in the context of the privilege against self-incrimination by holding that the witness need not satisfy the court that a criminal prosecution is likely to result from the answer because to do so might disclose the incriminating facts. It is enough that the witness simply shows a possible danger, even a hypothetical one, of incrimination. (Witkin, Cal. Evidence (2d ed. 1966) Witnesses, § 925, pp. 858-860.) The improbability of incrimination (in this case, the disclosure of a source) will not justify a denial of the privilege. “[I]f the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” (Hoffman v. United States (1951) 341 U.S. 479, 486-487 [95 L.Ed. 1118, 1123-1125, 71 S.Ct. 814, 818]; italics added.)
If a newsman is to be protected from a forced disclosure of any information which may tend to reveal a source of his story, it logically follows he cannot be compelled to reveal the form in which the information was received, the manner in which it was received, the time it was received, the place where it was received or which newsman received it. These questions cannot be answered, nor can the newsman give an intelligent explanation as to why they cannot be answered, without at least indirectly providing a clue or a link in the chain of evidence which would enable the interrogator to unlock the door to the source.
Third, to protect the privilege the newsman must avoid answering any questions which might result in an actual or constructive waiver of the privilege. By voluntarily answering questions as to some facts which would lead to the source, he will be held to have waived the privilege as to all other facts connected therewith. (See Rogers v. United States (1951) 340 U.S. 367 [95 L.Ed. 344, 71 S.Ct. 438, 442, 19 A.L.R.2d 378]; In re Howard (1955) 136 Cal.App.2d 816 [289 P.2d 537].) Farr is a clear example of such a waiver—by admitting that he had received the information from three persons subject to the court’s order, Farr impliedly waived his right not to disclose their identities.
*234Fourth, because of the strong legislative policy behind section 1070 (majority opn., ante, pp. 217, 218) the broad definition of relevant evidence2 cannot be utilized to restrict the privilege. Thus, even though an answer to a question might tend to exonerate a court officer from a suspicion of wrongdoing it is within the privilege if it also would tend to endanger a protected source.
The majority argues that questions “germane to the issue of any possible carelessness, indifference, neglect, connivance or collusion on the part of [court officers] in permitting the transcript to fall into the hands of petitioners” were relevant to the subject of the inquiry. Obviously, connivance or collusion on the part of a court officer would be pertinent because it would show a knowing violation of the order; however, mere carelessness, indifference or neglect, while perhaps tangentially relevant in that it indicates an absence of intentional wrongdoing by a court officer, nonetheless is within the privilege because it also might endanger a protected source. For example, if Mr. Goodwin “carelessly” left a copy of the transcript on his desk thus enabling a third party not subject to the order to transmit its contents to petitioners, forcing petitioners to answer questions concerning the episode would endanger the protected source.
Nor can I agree with the majority that because a question suggests possible criminal conduct by a petitioner and his source (apparently the theft of a public document) Evidence Code section 1070 does not apply. I find no authority for this proposition, and Branzburg v. Hayes, 408 U.S. 665 [33 L.Ed.2d 626, 92 S.Ct. 2646], does not so dictate. As stated by Justice White in his majority opinion: “The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime.” (408 U.S. at p. 682 [33 L.Ed.2d at pp. 639-640].) Again: “Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune . . . from testifying against the other, before the grand jury or at a criminal trial.” (408 U.S. at p. 691 [33 L.Ed.2d at p. 645]; italics added.) Thus, Branzburg had in mind only the giving of testimony by a newsman before a grand jury or at a pending criminal trial where his testimony would be relevant to the guilt or innocence of the person being investigated or charged with crime. Here, no such proceeding was in *235progress; the issue was not the guilt or innocence of petitioners or their source for violating a criminal statute.3
Moreover, the fact that Patterson had a master key to the courthouse at best raised an inference of criminal activity by Patterson or other representatives of the Bee which, if the trial court believed to be true, should have been turned over to the grand jury or the district attorney for investigation. As the majority acknowledges, it is not the function of a court to investigate a witness’ possible criminal conduct nor is it contempt for a person to refuse to answer questions about matters over which the court has no jurisdiction or to which the testimony of the witness is neither pertinent nor material. (State Bar of California v. Superior Court (1929) 207 Cal. 323, 339-400 [278 P. 432].)
What all of this means is that once respondent questioned petitioners about whether they had received their information directly or indirectly from a person subject to the order and petitioners had fully answered these questions, pragmatically the Farr hearing came to an end. At this point, the court had two choices: either to accept the uncontradicted testimony or to reject it as untrue. If the court suspected that perjury had been committed, it should have turned the testimony over to the district attorney for a thorough investigation. Any suspected misrepresentation of fact by an attorney connected with the case could have been turned over to the State Bar for investigation.
Another very practical reason why the Farr hearing ends at this point is that it is exceedingly difficult if not impossible to frame a relevant question which, if not limited on its face to a court officer, cannot be construed to pertain at least indirectly to a protected source. Most of the questions in the appendix are within this category.
To the argument that this denouement places an undue restriction on the court’s power to investigate the conduct of its officers and attachés, I respond that it is the only workable means of achieving an accommodation between the two competing interests without emasculating section 1070. The court’s power of inquiry either must be limited as I have *236described it or it must be totally unrestricted as respondent believed it to be. The majority mistakenly has settled on a line somewhere between and has only deepened the sands of confusion.
Applying these rules to the questions in the appendix, Rosato questions Nos. 24, 25 and 26 and Patterson question No. 15 appear to be within the narrow exception to the privilege. The other questions to Rosato and Patterson, as well as the questions to Gruner and Bort, either are within the privilege or outside the scope of pertinent inquiry.4 As to the four questions which should have been answered, in light of Patterson and Rosato’s unequivocal testimony that neither they nor any Bee employee had obtained a copy of the transcript from any court officer or from any public office with the knowledge and consent of any of the persons covered by the order, I fail to see any sense in remanding the case so that they can answer these questions. Having in mind that “the good horse has been, ridden to death,” any remand would be an exercise in futility.
Constitutional Privilege and the Balancing Process
Evidence Code section 1070 is backed by and must be construed in the light of a newsman’s qualified privilege under both the First Amendment to the United States Constitution and article I, section 2 of the California Constitution.5 Only by recognizing a constitutional privilege can the newsman’s statutoiy right be fully protected. Justice Powell in his *237concurring opinion in Branzburg referred to a balancing between the freedom of the press and the newsman’s obligation to testify; “The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.” (408 U.S. at p. 710 [33 L.Ed.2d at p. 656, 92 S.Ct. at p. 2671].)
Other courts since Branzburg have recognized the First Amendment privilege. In State v. St. Peter (1974) 132 Vt. 266 [315 A.2d 254], the Supreme Court of Vermont held that a newsman is entitled to refuse to answer inquiries put to him in a deposition proceeding unless the interrogator could demonstrate that there is no other adequately available source for the information and. that the information is relevant to the subject matter of the inquiry, in that case the defendant’s guilt or innocence. The court stated: “But the language and attitude of the Branzburg majority does not indicate an entire absence of concern for the news-gathering function so relevant to the full exercise of the First Amendment. The opinion confines itself to grand jury proceedings and trials. It declines to pass upon appearance of newsmen before other bodies or agencies. Even more noteworthy, the concurring opinion of Mr. Justice Powell suggests that the First Amendment supports enough of a privilege in news-gatherers to require a balancing between the ingredients of freedom of the press and the obligation of citizens, when called upon, to give relevant testimony relating to criminal conduct.” (315 A.2d at p. 255.)
In Brown v. Commonwealth (1974) 214 Va. 755 [204 S.E.2d 429], the Supreme Court of Virginia in a case where a criminal defendant had subpoenaed a newsman to give testimony held that the testimony sought was not essential to a fair trial and upheld the privilege. In Baker v. F. & F Investment (2d Cir. 1972) 470 F.2d 778, the plaintiffs moved for an order compelling disclosure of a journalist’s confidential news sources in a federal class action under the Civil Rights Act involving alleged racial discrimination in the sale of houses to Negroes. It was héld that the First Amendment rights would not be yielded to compel disclosure of the newsman’s confidential source where disclosure was not essential to protect the public interest in the administration of justice and disclosure did not go to the heart of the plaintiff’s case. In commenting on Branzburg it was said: “Manifestly, the Court’s concern with the integrity *238of the grand jury as an investigating arm of the criminal justice system distinguishes Branzburg from the case presently before us. If, as Mr. Justice Powell noted in that case, instances will arise in which First Amendment values outweigh the duty of a journalist to testify even in the context of a criminal investigation, surely in civil cases, courts must recognize that the public interest in non-disclosure of journalists’ confidential news sources will often be weightier than the private interest in compelled disclosure.” (470 F.2d at pp. 784-785.)
In Democratic National Committee v. McCord (D.D.C. 1973) 356 F.Supp. 1394 the court noted the requirement of an alternate source for the information which the plaintiff sought to obtain from the subpoenaed newsman and held that the alternative sources had not been exhausted or even approached in the case before it. In Cervantes v. Time, Inc. (8th Cir. 1972) 464 F.2d 986, a libel case was dismissed on summary judgment despite the fact that the newsman-author of the allegedly libelous article had refused to reveal his confidential sources.
When the disclosure of a confidential source is sought in a proceeding other than a grand jury investigation or a pending criminal trial (where the newsman’s testimony is essential to an adjudication of the guilt or innocence of the defendant), Branzburg contemplates a qualified privilege to be applied on an ad hoc basis. While to date the full dimensions of the privilege are uncertain, I submit that under the principles articulated in Branzburg and its progeny, respondent court should not have tried to force a disclosure of the source of petitioners’ news stories without balancing the following relevant factors:
(1) The potential inhibition or chilling effect on future news stories (Branzburg v. Hayes, supra, 408 U.S. 665 [33 L.Ed.2d 626, 92 S.Ct. 2646]).
(2) The public interest served by disclosure—in this case to determine if a court officer had violated its order so as to deter future violations. In this regard the court should have considered and weighed the fact that at the time petitioners were questioned there was no substantial fair trial issue in the pending criminal prosecutions against Stefano, Aluisi and Bains. Stefano and Aluisi’s cases already had been transferred to other venues for trial; while Bains’ case was still pending in Fresno, the substance of the charges against him as reflected in the news stories had been published on several prior occasions and it was extremely doubtful that any material in the January 12, 13 and 14 news stories would have further prejudiced Bains in the eyes of prospective trial jurors in Fresno *239County. This is particularly so when we consider the fact that Bains, a former City of Fresno Planning Commissioner, previously had been indicted and convicted in a widely publicized Fresno County jury trial in May of 1974, of three counts of selling heroin and one count of possessing heroin. He was under a state prison sentence for these crimes when indicted by the grand jury in October 1974. Any concern for Bains’ right to a fair trial in Fresno County should have been considered chimerical at best.
(3) The existence of alternate sources for the information. The examination of the court officers showed that many persons not questioned had access to copies of the transcript. Having in mind the importance of the First Amendment privilege it seems only reasonable to require that before petitioners were forced to disclose any information concerning their sources that these other possible sources should have been explored.
(4) The relevance of the inquiry. As previously explained, the subject of the inquiry was whether a court officer knowingly had violated the order; it necessarily follows that respondent should have evaluated each question in light of this limitation. Only respondent was in a position to protect petitioners’ interests by limiting the questions to those that were pertinent to the inquiry.
(5) The impact of the inquiry on the rights of others. Here the court should have considered the public’s right to know the substance of certain portions of the grand jury transcript. In response to a question as to why the offending news stories were published, Mr. Gruner stated: “Well, we felt that there was an important public matter dealt with in all the articles because they were interrelated; one of the principal items being the possibility that the garbage franchise might be brought up before the City Council, and Mr. Stefano was a sitting member of that Council, and his testimony with regard to possible conflict of interest, we felt, was a significant matter of which the public was entitled to know. And the other articles dealt with the functions that the alleged activities of the public—of a public official, whose performance was entitled to be judged by the public that he serves, in the light of all facts that are known concerning his activities, and we, having weighed the factor of the right to a fair trial, felt that in this instance the rights of the defendants would not be impaired in that regard since the venue change had already been indicated in the case of two of the individuals and that the information with regard to the third defendant was not of significant *240difference from material that had been published prior to the Grand Jury proceedings." Manifestly, the trial court should have weighed the public’s right to know about Stefano’s prior activities concerning matters then pending before the council, as evidenced by sworn testimony before the grand jury, a judicial body, against the court’s need to force a disclosure of the source of the news story. The public’s interest in knowing about this testimony should not have been ignored.
The record indicates that the respondent court failed to take any of these factors into consideration before it questioned petitioners. It simply ruled that under Farr, Evidence Code section 1070 was an “unconstitutional interference" with the court’s investigative powers, and it had an unlimited right to ask any questions which would lead it to the source of the news stories, whoever or whatever the source might be.
Moreover, respondent should have reweighed the factors enumerated above after it had received petitioners’ sworn testimony that they had not received any of their information directly or indirectly from any person subject to the order and before it broadened the inquiry to include the possible criminal conduct of petitioners. At this point, because there was no evidence suggesting that petitioners had obtained their information from anyone subject to the court order, in fact all of the evidence was to the contrary, respondent well might have concluded that any need to make further inquiry into petitioners’ sources had ended. The court had fully accomplished its purpose of protecting the integrity of its judicial process.
The majority and dissenting opinions have assumed the validity of respondent’s order sealing the transcript. However, I believe it is appropriate to note that a concern recently has been voiced by the American Bar Association’s Legal Advisory Committee on Fair Trial and Free Press for the procedures generally used by a trial court in issuing restrictive orders re publication. In its preliminary draft of “Proposed Court Procedure for Fair Trial-Free Press Judicial Restrictive Orders” (July 1975), the committee states: “Until now the courts have rather uniformly treated any kind of restrictive order preventing disclosure and publication of information as outside of the procedural requirements applicable generally to the issuance of restraining orders and injunctions. Many restrictive orders across the countiy, in both state and federal courts, have been entered without notice and without hearing. In some instances, these orders have been issued on the eve of trials, or invoked orally during the trial. Generally no one has appeared *241before the court to assert the free press right in the First Amendment. This results in orders being entered without a full exploration and understanding of the delicate balance between the constitutional requirements for a fair trial, a public trial, and a free press.” (Op. cit. p. 2.)
Under the ABA committee’s proposed procedure, law enforcement agencies, public defenders, district attorneys and local news media would receive notice of the proposed restrictive order accompanied by a notice giving the time within which written comments shall be received and the time for hearing any objections to the proposed order. (Op. cit. p. 9.) While any requirement that a trial court must give notice to the press with respect to restrictive orders on evidentiary matters arising during the course of a criminal trial would impose an unworkable burden on the trial court and unduly delay the progress of the trial, I suggest that such a rule would be beneficial to the courts and the public insofar as the issuance of any blanket pretrial injunction against publication of a grand jury transcript as in the present case. It must be kept in mind that often months and sometimes years pass before an indictment is brought to trial. There is something inherently wrong in allowing a court to prohibit the dissemination to the public of sworn testimony concerning misconduct by a public official who remains in office and votes on issues pertinent to the substance of the testimony without giving the public, through the press, the right to be heard on the matter. If such a procedure had been followed, respondent might have issued a limited order enjoining publication of only selected portions of the transcript but permitting publication of those portions pertinent td Mr. Stefano’s continuing activities as a city councilman and which the public had the right to know about. I suggest our Supreme Court should consider promulgating such a rule which perhaps would tend to minimize future acrimonious controversies between the courts and the press.
In summary, petitioners’ contempt convictions should be reversed for two reasons: first, with only four exceptions, the questions which they refused to answer exceeded the limited scope of permissible inquiry of whether a court officer or attaché violated the court’s order. With the exceptions noted, the petitioners answered all pertinent questions in this area. Second, the respondent court failed to engage in the balancing process required to protect petitioners’ constitutional and statutory privileges not to reveal the source of their news stories.
Petitioners’ application for a hearing by the Supreme Court was denied November 20, 1975. Mosk, J., was of the opinion that the application should be granted.
*242APPENDIX “A” QUESTIONS WHICH JOE ROSATO REFUSED TO ANSWER I. Are the passages in those articles which are set forth in quotation marks, in fact, direct quotations from that grand jury transcript? ANSWER REQUIRED? Yes. COMMENT: Question is preliminary in nature. 2. Have you ever seen a copy of the grand jury transcript lying on Mr. Goodwin’s desk, Mr. Hugh Goodwin? ANSWER REQUIRED? Yes. COMMENT: Since Mr. Goodwin is a court officer, the answer may lead to identifying him as a violator of the orders. It does not endanger revealing the identity of protected sources not falling within the narrow exceptions to the broad protection afforded by the privilege. It is relevant to the negligence or other punishable conduct by court officers. 3. When you and Mr. Patterson were writing the stories marked Exhibits 2, 3, and 4, did you refer to the grand jury transcript? ANSWER REQUIRED? Yes. 4. In writing those articles, did Mr. Patterson and in your presence refer to the grand jury transcript? ANSWER REQUIRED? Yes. 5. Mr. Rosato, have you ever read the grand jury transcript? ANSWER REQUIRED? Yes. 6. Did you ever see that transcript in the possession of Bill Patterson? ANSWER REQUIRED? Yes. 7. From whatever the source, Mr. Rosato, are you the person who obtained the copy of the grand jury transcript used in writing the news articles referred to in Exhibits 2, 3, and 4? ANSWER REQUIRED? Yes. COMMENT: The answer to this question does not endanger the revelation of a source outside the range of court officers covered by the order but would either identify or not identify Rosato as the individual who obtained the grand jury transcript or information from the grand jury transcript used in the newspaper articles. 8. Mr. Rosato, did you arrange to obtain for the Bee a copy of the grand jury transcript from some outside source? ANSWER REQUIRED? No. COMMENT: This question is too broad and is protected by the privilege in that it endangers revealing the source outside the relatively small group of persons subject to the order and tends to narrow the field of inquiry'vis-a-vis the protected sources. 9. To your knowledge, was a messenger used in transmitting a copy of the grand jury transcript to officers or employees of the Bee from an outside source? ANSWER REQUIRED? No. COMMENT: See comment under question No. 8. 10. Was the grand jury transcript obtained by you from the office of one of the persons or classes of persons mentioned, again going clear back to the defendants, without their knowledge or consent? ANSWER REQUIRED? Yes. COMMENT: See comment under question No. 2. II. Was a copy of the transcript taken, to your knowledge, from a public office by an agent or employee of McClatchy Newspapers^ without knowledge or consent of the person having custody or control of that copy? ANSWER REQUIRED? No. COMMENT: If the question had been limited to the office of the person subject to the order it would have had to be answered. However, the term “public office’’ may
*243conceivably extend to some public offices and officers who were not subject to the order; hence it would endanger a source which is protected by the privilege. 12. Did you make or have you made a. promise to the source of the grand jury transcript obtained by the Bee that the identity of the source would not be revealed? ANSWER REQUIRED? No. COMMENT: The question is immaterial, but petitioner has offered to answer this question. 13. To your knowledge, did the source, person from whom any grand jury transcript was obtained, make the initial contact offering that transcript? ANSWER REQUIRED? No. COMMENT: See comment under question No. 8. 14. Where were you when you first received a copy of the grand jury transcript? ANSWER REQUIRED? No. COMMENT: See comment under question No. 8. 15. Did you first come into possession of a copy of the transcript in thé Fresno County Courthouse? ANSWER REQUIRED? No. COMMENT: See comment under question 8. Note, if the question had been restricted to one of the offices of the persons subject to the order it should have been answered. 16. When did you first come into possession of a copy of the grand jury transcript? ANSWER REQUIRED? Yes. COMMENT: Question is preliminary. 17. When did you first come into possession of a copy of those statements which are enclosed in quotation marks and contained in Exhibits 2, 3, and 4? ANSWER REQUIRED? Yes. COMMENT: Question is preliminary. 18. Yes, you did, Mr. Rosato, and that declaration, I think, will show that it was stated that at the time you signed the declaration you did not have a copy of the transcript in your possession or under your control, but I ask you now, under oath, have you ever had a copy of the grand jury transcript in your possession or under your control? ANSWER REQUIRED? Yes. 19. To your knowledge, does anyone employed or associated with McClatchy Newspapers now have a copy of the grand jury transcript? ANSWER REQUIRED? Yes. 20. Have you ever been in the office of the Public Defender at a time when that office was not open to the public? ANSWER REQUIRED? Yes. COMMENT: See comment under question No. 2. 21. Have you ever been in the office of the District Attorney when that office—at a time when that office was not open to the public? ANSWER REQUIRED? Yes. COMMENT: See comment under question No. 2. 22. Have you, including the office of the County Clerk, have you ever been in the office of any of the classes of persons mentioned awhile ago which you’ve stated you recall, at a time when those offices were unoccupied by anyone else? ANSWER REQUIRED: Yes. COMMENT: See comment under question No. 2. 23. Did you obtain a copy of a grand jury transcript after you were served with the subpoena I showed you just before the noon break? ANSWER REQUIRED? No. COMMENT: Question is irrelevant. 24. If I can repeat it, has any officer or employee of the Bee told you, in effect, that he personally took a copy of the grand jury transcript from any of the persons in that class of persons we have discussed earlier?
*244ANSWER REQUIRED? Yes. COMMENT; See comment under question No. 2. 25. Have you seen any employee take a copy of the grand jury transcript from the office of any of the persons mentioned in that class of persons? ANSWER REQUIRED? Yes. COMMENT; See comment under question No. 2. 26. Do you know whether or not any employee of the Bee has obtained a copy of the transcript from any of the persons mentioned in that class of persons? ANSWER REQUIRED? Yes. COMMENT: Rosato has offered to answer this question. QUESTIONS WHICH WILLIAM K. PATTERSON REFUSED TO ANSWER 1. Had he [Rosato] acquired any materials helpful in writing stories stated there in Exhibits 2, 3 and 4, which caused you to ask for his help? ANSWER REQUIRED? Yes. 2. Are any of the statements contained in quotation marks in Exhibits 2, 3, and 4 quotations from the grand jury transcript? ANSWER REQUIRED? Yes. 3. Have you, on any occasion other than what you’ve already described, seen a copy of the grand jury transcript? ANSWER REQUIRED? No. COMMENT: See comment to Rosato question No. 8. 4. Have you read the grand jury transcript? ANSWER REQUIRED? Yes. 5. Have you read any portion of it [grand jury transcript]? ANSWER REQUIRED? Yes. 6. Have you ever had the transcript in your possession? ANSWER REQUIRED? Yes. 7. When you and Mr. Rosato were jointly writing the stories, Exhibits 2, 3, and 4, did you refer to a copy of the transcript? ANSWER REQUIRED? Yes. 8. When you had completed writing Exhibits 2, 3, and 4, what did you do with any materials used in writing those matters which are contained in those news,articles in quotation marks? ANSWER REQUIRED? No. COMMENT: The question is too broad. It may require an answer which would compel a revelation that the transcript was returned to a protected source. 9. As between you and Mr. Rosato, who first acquired the material used in writing those statements contained in the exhibits last mentioned in quotation marks? ANSWER REQUIRED? Yes. 10. From whatever the source, are you the person who obtained the materials which are contained in those news articles in quotation marks? ANSWER REQUIRED? Yes. COMMENT: See comment to Rosato question No. 7. 11. Was a copy of the grand jury transcript obtained from a source outside the Bee through your efforts? ANSWER REQUIRED? No. COMMENT: See comment to Rosato question No. 8. 12. Did Mr. Rosato obtain a copy of the grand jury transcript to your knowledge? ANSWER REQUIRED? Yes. COMMENT: See comment to Rosato question No. 7. 13. To your knowledge, was more than one copy of a grand jury transcript obtained by officers or employees of the Bee from outside sources? ANSWER REQUIRED: Yes.
*24514. Do you know how the materials used in writing those statements contained in quotation marks in those news articles was obtained for the Bee? ANSWER REQUIRED? No. COMMENT: See comment to Rosato question No. 8. 15. Has any employee of the Bee told you, in effect, that he personally took a copy of the grand jury transcript from the office of any of the persons or classes of persons mentioned a moment ago? ANSWER REQUIRED? Yes. COMMENT: See comment under Rosato question No. 2. 16. Has Mr. Rosato told you, in effect, that he obtained a copy of the grand jury transcript from the office of one of those persons or classes of persons without their knowledge or consent? ANSWER REQUIRED? Yes. COMMENT: See comment under Rosato question No. 2. 17. Have you seen an officer or employee of the Bee take a copy of the grand jury transcript from the office of one of the persons or classes of persons mentioned a moment ago without the knowledge or consent of such person or class of persons? ANSWER REQUIRED? Yes. COMMENT: See comment under Rosato question No. 2. 18. Has any officer or employee of the Bee told you that within the last three months he was in Mr. Goodwin’s office when Mr. Goodwin was not present? ANSWER REQUIRED? Yes. COMMENT: See comment under Rosato question No. 2. 19. Has Mr. Rosato told you that within the last three months he has been in Mr. Goodwin’s office at a time when no one else was present? ANSWER REQUIRED? Yes. COMMENT: See comment under Rosato question No. 2. 20. To your knowledge, has any promise been made to the source of the grand jury transcript in the possession of the Bee that the identity of the source would not be revealed? ANSWER REQUIRED? No. COMMENT: The question is immaterial. 21. Where did you first see it [the grand jury transcript]? ANSWER REQUIRED? No. COMMENT: See comment under Rosato question No. 8. 22. Were you in a public office, that is, the office of a public officer when you first came into possession of the statements contained in quotation marks and contained in those exhibits, 2, 3, and 4? ANSWER REQUIRED? No. COMMENT: The question would have been proper if it had been restricted to the office of a public officer who was subject to the orders. 23. When did you last have in your possession or under your control a copy of the materials used in writing the matters which are contained in quotation marks in those articles? ANSWER REQUIRED? Yes. 24. When you completed writing the news articles Exhibit 2, 3, and 4, what did you do with the document used in writing the matter contained in those quotation marks and those articles? ANSWER REQUIRED? No. COMMENT: See comment under question No. 8. 25. To your knowledge, does anyone employed or associated with McClatchy Newspapers now have a copy of the grand jury transcript? ANSWER REQUIRED? Yes.
*246Questions which George gruner refused to answer 1. Have you read a copy of the grand jury transcript? ANSWER REQUIRED? Yes. 2. Do you have in your possession or under your control now a copy of the grand jury transcript? ANSWER REQUIRED? Yes. 3. Did you bring with you to court today a copy of the grand jury transcript, of any copy of a grand jury transcript in your possession or under your control? ANSWER REQUIRED? Yes. ' 4. Mr. Gruner, do you know who obtained for the Bee a' copy of the grand jury transcript, who within your organization? ANSWER REQUIRED? Yes. 5. Do you have a copy of the materials used by Mr. Patterson and Mr. Rosato in writing the news articles marked Exhibits 2, 3, and 4? ANSWER REQUIRED? Yes. QUESTIONS WHICH JAMES H. BORT, JR., REFUSED TO ANSWER 1. Was the source material in the form in which it was first acquired by an officer or employee of McClatchy Newspapers in Xerox copy form? ANSWER REQUIRED? Yes. 2. When did you first see the source material? ANSWER REQUIRED? Yes. 3. When did you last see the source material? ANSWER REQUIRED? Yes. 4. Did the source 'material in the form in which it was obtained contain any underlining—? ANSWER REQUIRED? Yes. 5. Did the source material in the form in which it was obtained contain any marginal notations? ANSWER REQUIRED? Yes. 6. Did the source material in the form in which it was obtained contain any handwriting or pen or pencil markings of any kind? ANSWER REQUIRED? Yes. 7. Was written source material used in writing Exhibits 2, 3 and 4? ANSWER REQUIRED? Yes. 8. Did you see the source material before those news articles, Exhibits 2, 3 and 4, were written? ANSWER REQUIRED? Yes. 9. Was the Bee’s first copy of the source material made in the Fresno County courthouse? ANSWER REQUIRED? No. COMMENT: See comment to Rosato question No. 11. 10. Was the Bee’s first copy of the source material made on a county copy machine with knowledge or consent of a county employee? ANSWER REQUIRED? No. COMMENT: See comment to Rosato question No. 11. 11. Was the source material first obtained by an officer or employee of McClatchy Newspapers between 8:00 o’clock a.m. and 5:00 o’clock p.m. on a weekend or on a weekend? ANSWER REQUIRED? Yes. 12. Was a copy of the grand jury transcript used in writing Exhibits 2, 3 and 4? ANSWER REQUIRED? Yes. 13. Who in your organization last had the source materials, according to your
*247information? ANSWER REQUIRED? Yes. 14 After writing Exhibit 2, 3 and 4 articles, did Mr. Rosato or Mr. Patterson turn the source material over to you? ANSWER REQUIRED? Yes. 15. Do you know whether or not Mr. Patterson had in his possession or under his control a copy of the source material at the time he was served with the subpoena duces tecum prior to the January 24,1975 hearing in this matter? ANSWER REQUIRED? Yes. 16. Do you know whether or not Mr. Rosato had in his possession or under his control a copy of the source material at the time he was served with a subpoena duces tecum prior to the January 24, 1975 hearing in this matter? ANSWER REQUIRED? Yes. 17. Do you know whether or not Mr. Gruner had in his possession or under his control a copy of the grand jury , transcript at the time he was served with the subpoena duces tecum prior to the January 24, 1975 hearing in this matter? ANSWER REQUIRED? Yes.
Evidence Code section 1070 not only provides a privilege for refusing to disclose the source of any information used for. publication, but also for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public, and this is so whether or not published information based upon or related to such material has been disseminated. (Evid. Code, § 1070, subd. (c).)
Evidence Code section 210 defines “relevant evidence” as evidence having any tendency in reason to prove or disprove a disputed fact that is of consequence to the action.
I have difficulty in perceiving the exact nature of the crime supposedly committed by petitioners. If they copied the contents of the transcript, a public document, while in a public office during working hours, there was no crime. (Code Civ. Proc., § 1888; Gov. Code, § 1227.) If they removed the transcript from a public office after hours there would be a trespass. However, the taking of a public document for the purpose of publishing its contents does not come within the traditional definition of theft; there is no intent to permanently deprive the owner, i.e., the public, of its property.
Rosato question No. 2, “Have you ever seen a copy of the grand jury transcript lying on Mr. Goodwin’s desk, . . ,?”ris troublesome. On its face it appears to be harmless; it could be answered in the affirmative without endangering a source. If so answered, however, the next question would be, “When?” then, “Who else was present?” etc., thus narrowing the inquiry down to the point where a source could be endangered. The question is also confusing. If construed to mean did Rosato observe the transcript on Mr. Goodwin’s desk in Goodwin’s presence or with his knowledge, it would be pertinent to whether Goodwin violated the court’s order. If the question is construed as referring to a time when Goodwin was not in his office and without his knowledge, it is not directly pertinent to whether Goodwin violated the order and, as previously explained, could lead to information which would indicate that a protected source aided Rosato in obtaining the transcript or its contents from Goodwin’s desk. Rosato should not be forced to answer the question in its present form.
In Branzburg Justice White observes that although Congress may determine privileges on the federal level, state legislatures are free within First Amendment limits to fashion their own standards, and state courts cannot be barred by the United States Supreme Court from “construing their own constitutions so as to recognize a newsman’s privilege, either qualified or absolute.” (408 U.S. at p. 706 [33 L.Ed.2d at p. 654, 92 S.Ct. at p. 2669].)