09 October 2007

Consulting my notes - reinterpreting Branzburg v. Hayes

Thirty-five years have passed since Justice Lewis F. Powell, Jr. issued the legendary concurring opinion in Branzburg v. Hayes. This case, one of my personal favorites from my First Amendment days, marks the only time the Supreme Court has ruled on whether a reported must divulge their confidential sources and testify. A piece in the New York Times takes a closer look at this in light of the push to pass a federal shield law, as well as at contemporaneous notes taken back in 1972 that recently emerged.

From the article:
"On the one hand, the majority in the 5-to-4 decision said journalists had no First Amendment protection against grand jury subpoenas. On the other, Justice Powell, who joined the majority, wrote a separate opinion calling on judges to strike the “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony” — whatever that means.

Though Justice Powell’s concurrence was almost perfectly opaque, press lawyers seized on it and for decades convinced countless lower courts that Branzburg had in fact been a victory for the press. That line of argument essentially ground to a halt four years ago when a federal appeals court judge called the press lawyers’ bluff. [...]"

And about those notes ...

"A few days after the argument in Branzburg, Justice Powell prepared notes of the court’s private conference on a form that looks a little like a miniature-golf scorecard.

In contrast to his meandering concurrence, the few crisp sentences of notes were relatively clear. “We should not establish a constitutional privilege,” Justice Powell said, referring to one based on the First Amendment. Such a privilege would create problems “difficult to foresee,” among them “who are ‘newsmen’ — how to define?”

But, he added, “there is a privilege analogous to an evidentiary one” — like those protecting communications with lawyers, doctors, priests and spouses — "which courts should recognize and apply" case by case "to protect confidential information.'"

So whose side does it support? Those arguing for a federal shield law that would protect a reporter's rights to maintain their confidential sources? Did Powell, in his notes, clarify that such a protection exists? Or is this still too ambiguous ...

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