Do Justice Powell's notes prove he backed shield for journalists?

Breaking News

THE Supreme Court has only once ruled on whether reporters may be forced to testify about their confidential sources, in a 1972 decision called Branzburg v. Hayes. Thanks to a cryptic concurring opinion from Justice Lewis F. Powell Jr., to this day no one is quite sure what the decision meant.

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....

“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.”

comments powered by Disqus