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

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.”

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