In Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), the Supreme Court upheld the right of a wage-hour administrator enforcing the 1938 Fair Labor Standards Act (FLSA) to issue a subpoena duces tecum (an order to compel the production of documents) to a newspaper publishing company for its records relative to its compliance with the FLSA. The company had resisted the subpoena, citing the First Amendment freedom of the press and other constitutional provisions.
Court found subpoena did not violate First Amendment
Writing for the Court, Justice Wiley B. Rutledge found that the subpoena did not violate the First Amendment. He did not think it significant that the legislation authorizing this action did not cover every industry or that it did not apply to all small newspapers. In contrast to the facts in Grosjean v. American Press Co. (1936), in which newspapers were subject to “special taxation” that was scaled according to their circulation, the government was not attempting to favor small papers over large ones but simply to place newspaper publishers “upon the same plane with other businesses” of like size. Rutledge denied that the subpoena permitted “the Administrator to conduct general fishing expeditions into petitioners’ books, records and papers” in violation of the Fourth Amendment. The Fourth Amendment’s protections against search and seizure did not exempt newspapers from providing records that Congress had required from other businesses.
Justice Francis (Frank) W. Murphy’s solitary dissent focused not on First Amendment issues but on his concern that the law should restrict the issuance of subpoenas to judicial officers rather than administrators.
John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.