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.