What They Meant to Say: The Courts Try to Explain Branzburg v. Hayes

Abstract

Part I: Introduction For close to forty years, fate of journalists wishing to conceal identities of confidential sources from government bodies with subpoena power has depended upon how one heavily divided United States Supreme Court opinion is interpreted. The Court's 5-4 decision in Branzburg v. Hayes1 in 1972 represents its last word - so far2 - on whether journalists have a constitutional right under First Amendment press clause3 to refuse to identify sources of information to grand juries, prosecutors, criminal defendants, civil litigants, legislators, and others. With prospects for a federal journalist's shield law still uncertain at this writing,4 journalists may continue to rely on interpretations of Branzburg for protection for some time. Because Branzburg decision was closely divided, lower court interpretations have focused on a brief concurring opinion by Justice Lewis Powell.5 The Powell concurrence is not necessarily a ringing endorsement of majority opinion, but it also stops short of endorsing either dissent. Lower federal courts and some state courts have resolved resulting confusion through ad hoc decision-making, while other states have created shield statutes that protect journalists to varying degrees. But recently in federal courts, journalists' protection, already uncertain, has been thrown into further disarray by a parade of negative decisions.0 The parade began with a strongly worded United States Court of Appeals decision in 2003 criticizing thirty years of federal appellate precedent that provided limited protection to journalists and sources.7 The Seventh Circuit's 2003 opinion accused other federal courts of badly misreading Branzburg, which three-judge panel said provided no support for any type of constitutional privilege.8 The Seventh Circuit's McKevitt opinion indicated that more than thirty years after Branzburg was decided, lower courts still were unsure what it meant. Although passage of a federal shield law would help clarify journalists' right to conceal confidential sources, it would still leave unresolved two other issues that are associated with Branzburg - extent to which press newsgathering activities are protected by First Amendment and reach of generally applicable laws into newsgathering and publication. Because Branzburg still matters to media, this article will attempt to make sense of it by using a comprehensive approach. All Supreme Court opinions that have cited Branzburg in First Amendment contexts will be examined, as well as a few non-media cases in which Court discussed Branzburg at some length. Also, article will briefly examine federal and state appellate court cases and federal trial court opinions that discussed Branzburg's meaning to some extent. The goal is to gain a complete picture of how this pivotal case in First Amendment law has affected press rights. Part II: Origins of Case The cases consolidated in Branzburg v. Hayes had origins in many years of journalistic practice, centuries of Anglo-American legal tradition, and turbulent 1960s. sl Before examining backgrounds of specific cases, it would be helpful to briefly sketch larger issues at stake. THE PROBLEM OF PRIVILEGE It has long been a maxim of English and American law that privileges excusing people from providing in court are disfavored because they hamper search for truth. Famously, during a debate on whether privileges to excuse witnesses should be curtailed, Lord Hardwicke in 1742 said on floor of Parliament that the public has a right to every man's evidence in courts of law.10 That phrase has survived to this day as a description of Anglo-American law's attitude toward privileges.11 Nevertheless, it also is widely accepted in law that some relationships between persons are irreparably damaged if one party cannot rely on promises of confidentiality from other. …