Branzburg was decided in 1972, the decision of the Court, written by Justice White, was sweeping. Justice Powell joined the opinion, but also concurred separately; but this concurrence is simply at odds with the White Opinion.
Subsequently, lower courts, including the DC Circuit, grew to accept Powell's view as the Branzburg holding. Since 2003, when Richard Posner found otherwise, that rule has been eroded. The DC Circuit opinion is a further step in that erosion.
On the flip I will quote from a Slate article on the subject from 2003, because I fear my reputation will make folks doubt my word.
The next day's New York Times reported that this "sweeping decision ... contained a firm rejection of the theory that the First Amendment shields newsmen under certain circumstances from having to testify." That was Branzburg in 1972; Branzburg now looks altogether different. As the Times noted last week, the case "has been interpreted as setting forth a series of tests for compelling a reporter's testimony, including whether the reporter's information goes 'to the heart' of a particular case and cannot be obtained through other means."
So, how did the Branzburg metamorphosis come about? The answer lies in an oddball separate opinion by Justice Lewis F. Powell Jr., a newcomer to the court at the time. Justice Powell signed on to Justice White's opinion, thereby making it the decision of the court, but only after "much hesitation," according to Bob Woodward and Scott Armstrong's The Brethren. Powell, who became famous (or notorious) for persistently seeking the middle ground, decided to file a concurring opinion. It reads like a concurrence that slowly mutates into a dissent.
The majority opinion left the First Amendment door slightly ajar; Justice Powell flung it wide open. "As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated," he wrote. Consequently, a reporter who 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." By the end of Justice Powell's short opinion, the majority's narrow, bad-faith exception covering harassment of the press had ballooned into a universal balancing test.
Today, the result in many lower courts is precisely what the Branzburg majority rejected: a First Amendment testimonial privilege for reporters. In some courtrooms, the privilege extends beyond confidential sources and other newsroom secrets to embrace anything learned in the course of gathering news. The privilege is widely recognized in civil litigation like Wen Ho Lee's case as well as in criminal trials. It's sometimes even recognized in grand-jury investigations like Branzburg. (The issue rarely arises in federal grand juries, though, because Justice Department regulations discourage prosecutors from subpoenaing reporters.)
. . . 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.
That's bad news for the reporters subpoenaed in the Wen Ho Lee case and potentially for those snarled in other leak investigations (think Robert Novak). If Gerth and Risen won't name their sources, Judge Jackson can order them jailed for contempt of court. They can appeal to the D.C. Circuit, which might recognize a reporter's privilege, as it has done before, or might follow Judge Posner's lead, reread Branzburg, and leave them in jail.
That is exactly correct.
And what the DC Circuit did was NOT recognize a reporter's privilege, "as it has done before" and instead one judge, Sentelle, found no privilege, one found there was one, Tatel, and one said it is an open question.
So there is the change. Before there was a recognized reporter's privilege, now it is an open question.
I hope that clears up my view on this.