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View Diary: Journalists Make Crappy Lawyers (12 comments)

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  •  I did read it (none)
    Your diary seems to be saying the same thing I am.  The Branzburg case, as stated in Justice White's majority statement, found that journalists can be compelled to testify.  Then "oddball" Powell's statement, opened the door for journalists to claim they don't have to if the reporter thinks "his testimony implicates confidential source relationships without a legitimate need of law enforcement" can move to quash the subpoena. In response, the judge must "balance the competing interests on their merits"--the need for the testimony versus the reporter's "asserted claim to privilege."

    This as the Salon article states: resulted "in many lower courts is precisely what the Branzburg majority rejected: a First Amendment testimonial privilege for reporters.

    Then, "In a Seventh Circuit decision in August 2003, Judge Richard Posner criticized rulings that "essentially ignore Branzburg" or even "audaciously declare that Branzburg actually created a reporter's privilege." All subpoenas must be reasonable, Judge Posner wrote, and "[w]e do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist." Branzburg's ghost is rising."

    So I don't understand how you claimed "So there is the change. Before there was a recognized reporter's privilege, now it is an open question."

    It seems to be the other way around.  In 1972, Branzburg established no privilege, "oddball" Powell's statements changed some lower courts view in later cases, then in 2003 Posner criticized rulings that ignored Branzburg.

    All murderers are punished unless they kill in large numbers and to the sound of trumpets. ~Voltaire

    by TexH on Sat Jul 09, 2005 at 03:46:04 PM PDT

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    •  Apropos of the DC ruling... (none)
      Maybe Powell himself was trying to craft a balancing test or indicating he viewed this as an open question.

      "There is no god, and I am his prophet."

      by steverino on Sat Jul 09, 2005 at 04:14:49 PM PDT

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      •  Don't know (none)
        But I think that is what some are arguing in Armondo's diary. If you read Powells decision, it seems to be written to allow some privilege to protect against bad-faith investigations.  

        Forgot to copy the link, but he did above, and he re-posted the diary a little while ago.

        All murderers are punished unless they kill in large numbers and to the sound of trumpets. ~Voltaire

        by TexH on Sat Jul 09, 2005 at 04:45:04 PM PDT

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