Branzburg V. Hayes - Subsequent History

Subsequent History

Powell's opinion has been interpreted by several lower courts as an indication that reportorial privilege does indeed exist, but was simply not warranted in the specific case of Branzburg.

In Zerilli v. Smith, 656 F.2d 705 (1981) the Court of Appeals for the D.C. Circuit found that the reporter's privilege did exist and its application depended on two factors: (1) that the information sought was crucial to a litigant's case and (2) that the information could not be acquired from any other source.

However, in 2003 in McKevitt v. Pallasch, 339 F.3d 530 (2003), Judge Posner reaffirmed the majority's opinion in Branzburg, in an opinion concerning a refusal to stay an order in a terrorism case in Ireland to subpoena recordings of a key witness possessed by a group of journalists. Posner uses the case-by-case balancing test envisioned by Justice Powell, writing:

The federal interest in cooperating in the criminal proceedings of friendly foreign nations is obvious; and it is likewise obvious that newsgathering and reporting activities of the press are inhibited when a reporter cannot assure a confidential source of confidentiality. Yet that was Branzburg and it is evident from the result in that case that the interest of the press in maintaining the confidentiality of sources is not absolute. There is no conceivable interest in confidentiality in the present case.

In July 2004, Branzburg was cited as precedent by United States District Court Chief Judge Thomas Hogan in a memorandum opinion denying a motion to quash two grand jury subpoenas issued to reporters. NBC Washington Bureau Chief Tim Russert and Time magazine reporter Matthew Cooper challenged the subpoenas issued in connection with the leak of the identity of former CIA operative Valerie Plame, citing their First Amendment rights as reason not to reveal their confidential sources. In the opinion, Hogan wrote:

Because this Court holds that the U.S. Supreme Court unequivocally rejected any reporter’s privilege rooted in the First Amendment or common law in the context of a grand jury acting in good faith, this Court denies the motions to quash.

Civil cases, as opposed to criminal cases, have been held not to come under the Branzburg test. Carey v. Hume, 160 U.S. App. D.C. 365, 492 F.2d 631, 636 (D.C.Cir.), cert. dismissed, 417 U.S. 938, 94 S. Ct. 2654, 41 L. Ed. 2d 661 (1974).

The New York Times recently published Justice Powell's notes of the court's private conference on a form that looks like a scorecard. The Times purports that Justice Powell wrote the following:

I will make clear in an opinion - unless the court's opinion is clear - that there is a privilege analogous to an evidentiary one, which courts should recognize and apply on case by case to protect confidential information. My vote turned on my conclusion - after hearing arguments of counsel and re-reading principal briefs - that we should not establish a constitutional privilege. If we did this, the problems that would flow from it would be difficult to foresee: e.g., applying a privilege of const. dimensions - to grand jurys, petite juries, congressional committees, etc... And who are "newsmen" - how to define?