The Burger Court (1969–86)
Why have lower courts struggled with determining the meaning of the Branzburg case?
Lower courts have read the Branzburg case differently because of the concurring opinion written by Justice Lewis Powell. Powell, who provided a fifth vote for the majority, wrote a concurrence that almost reads like a dissenting opinion. He said that if reporter testimony gives “information bearing only a remote and tenuous relationship to the subject of the investigation,” the reporter may file a motion to quash the subpoena. He also wrote, unlike Justice Byron White, that “the balance of these vital constitutional and societal interests” must be done on a “case-by-case basis.”
Some lower courts have determined that Branzburg stands for the principle that there is a First Amendment–based reporters’ privilege. They reach this conclusion by saying that the four dissenters plus Justice Powell equals a necessary five votes for the privilege.
Other courts disagree, pointing out that Justice Powell joined White’s majority opinion and wrote a concurring (not a dissenting) opinion.