Skip to main content

I think there is much confusion on the seminal case regarding reporter's privilege - Branzburg v. Hayes.

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.  

From Slate:

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.

Originally posted to Armando on Sat Jul 09, 2005 at 03:18 PM PDT.

Poll

Does This Make My Point Clearer?

40%11 votes
22%6 votes
37%10 votes

| 27 votes | Vote | Results

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  There was a change in the law (4.00)
    in the DC Circuit case.

    Protest to the contrary notwithstanding.

    The SCOTUS is Extraordinary.

    by Armando on Sat Jul 09, 2005 at 03:20:04 PM PDT

  •  I voted for the third one (4.00)
    But mostly just to annoy you.

    This actually makes me understand your opinion much better...so, thanks.

    On sleepless roads the sleepless go...

    by Raybin on Sat Jul 09, 2005 at 03:20:27 PM PDT

  •  This is definitely clarifies your position (none)
    But I still can't agree.

    From the Miller decision:

    For the reasons set forth below, we agree with the District Court that there is no First Amendment privilege protecting the evidence sought. We
    further conclude that if any such common law privilege exists, it is not absolute, and in this case has been overcome by the filings of the Special Counsel with the District Court.

    How does this grossly vary from a balancing test?

    It ain't really what you'd call change. It's all happened before and it'll happen again with a different set of facts. -Gloria Naylor

    by GN1927 on Sat Jul 09, 2005 at 03:36:55 PM PDT

    •  IF (none)
      means there MIGHT not be a balancing test.

      Before there was DEFINITELY a balancing test.

      You see the difference between might be and is I hope.

      The SCOTUS is Extraordinary.

      by Armando on Sat Jul 09, 2005 at 03:38:38 PM PDT

      [ Parent ]

      •  Just note, the question wasn't raised in this case (none)
        thus, it wasn't decided.  I think your argument would be much stronger had Judge Henderson said, unequivocally, that there is no common law privilege, rather than stating that such is inapplicable in this case because as Judge Tatel's concurrence illustrated, the government had met its burden.

        But, it just struck me re-reading my own words, that you are correct, that signifies a change in the law and an increase in uncertainty.  I'm not sure how much of one, as Tatel took such pains to state the government's compelling interest in Miller's testimony (balancing test).  Perhaps not an altogether bad change, in this age of Judith Millers who would game the system, but there is a change.

        It ain't really what you'd call change. It's all happened before and it'll happen again with a different set of facts. -Gloria Naylor

        by GN1927 on Sat Jul 09, 2005 at 03:48:47 PM PDT

        [ Parent ]

        •  The question WAs raised (none)
          It was Miller's principal argument.

          Henderson said it didn;t have to be decided. And said it was a question for another day.

          Sentelle and Tatel rightly dealt with the issue.

          But Henderson took it to be an open question. When before it was not.

          Coupled with Sentelle saying there is no privilege, you ave two judges out of 3 saying that, at the least, that it is an open question.

          That is clearly a step backward.

          The SCOTUS is Extraordinary.

          by Armando on Sat Jul 09, 2005 at 03:54:30 PM PDT

          [ Parent ]

          •  Wrong words on my part, maybe (none)
            so let me clarify my meaning: the question might have been raised to the court, but it was not decided.  I would even guess that when the question of a de facto or common law privilege rises again, perhaps in a case with a non-vampire petitioner, a balancing test (based on common law privilege) will again commence.  You're right, Armando, there was a change in the law.  However, I'm not sure that the change was more than slight, or is undesirable in the modern era in which "journalist" shills like Miller try to game the system for their own ends.  You consider this awful; perhaps this is just the closing of a loophole for those who would abuse common law privilege.

            It ain't really what you'd call change. It's all happened before and it'll happen again with a different set of facts. -Gloria Naylor

            by GN1927 on Sat Jul 09, 2005 at 04:01:56 PM PDT

            [ Parent ]

            •  I think it (none)
              extremely undesirable.

              I've said why.

              But this point was a bine of contention and confusion. And still is as Mitch simply won't accept the fact that it is a change.

              The SCOTUS is Extraordinary.

              by Armando on Sat Jul 09, 2005 at 04:08:20 PM PDT

              [ Parent ]

              •  I think that many commenters, (none)
                including myself, right or wrong, are convinced that much of the fear that this change is enormous and bodes ill for freedom of the press is unwarranted.

                Miller's not the first journalist to be found in contempt for her refusal to divulge the criminal activities of a source.  As Kos related, such is a hazard of the newsgathering business.  What's striking about her circumstance is the likelihood that she engaged in criminal activities along with her source, and/or is an apparatus of a purposeful disinformation campaign.  What to do with such a person and others like her?  Does she serve the interests of our democracy, or does she work to undermine them?

                Although I find myself having to agree with you that there was a reversion back to the original intent of Branzburg, I'm convinced that the DC court's preservation of the (I think, strong) possibility of a common law privilege will ensure that there is not a net loss to whistleblowers and journalists who protect them.

                It ain't really what you'd call change. It's all happened before and it'll happen again with a different set of facts. -Gloria Naylor

                by GN1927 on Sat Jul 09, 2005 at 04:20:39 PM PDT

                [ Parent ]

      •  Where do you get that? (none)
        Where is there DEFINITELY a balancing test before?

        The Article Apian cited last night which you made a note in pointing out, said that "the press" had always been on borrowed time on this because it was not in the law that such a balancing test was DEFINITELY there.

        I would argue that what you and others are trying to make Powell's concurring opniion read as, is wrong.

        No person should be above the law in being compelled to tesitfy during a good-faith grand jury investigation.

        I don't care what their stated vocation is, or motives are. Think of Rove leaking any and all info (true or not) to Jeff Gannon with impunity form the law.

        Whistle-blower protections should be strengthened and provide the proper course for relief from "illegal leaks" which do what this claimed 1st amendment right seeks, and that is the ability to expose for the greater public good, Gov. criminal malfeasance.

        cheers,

        Mitch Gore

        Nobody will change America for you, you have to work to make it happen

        by Lestatdelc on Sat Jul 09, 2005 at 03:50:17 PM PDT

        [ Parent ]

      •  I saw "if" as case-specific, hypothetic (none)
        In other words, it was a hypothetical/counterfactual "if" to this case.

        Now, it could become precedents-setting, but that's a different question from whether it was intended to be.

        And to the degree it is precedent-setting, I agree with others posting here that it seems a matter of nuance, not major change. And arguably, coming down the pike since Posner's 2003 comment, and so just part of a chain of rulings.

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

        by steverino on Sat Jul 09, 2005 at 04:25:52 PM PDT

        [ Parent ]

  •  Thanks for the analysis... (none)
    Why should Justice Powell's concurring opinion be the standard?  I don't get it.  Oh, and I guess it would have been nice if the Extraordinary SCOTUS took the case and ironed out the lines here.  It would be incredibly helpful to know just where the boundaries are.
    •  Because great lawyers have said so (none)
      Heh.

      Your real question is how did Media lawyers get subsequent courts to see it that way.

      By being great lawyers of course.

      Seriously though, Powell's was the 5th vote. He said what he was voting for. The four dissents took an even more favorable view for reporter's privilege.

      The idea is 5 Justices saw Powell's view as the VERY LEAST to be demanded of prosecutors before compelling reporters to divulge their sources.

      The SCOTUS is Extraordinary.

      by Armando on Sat Jul 09, 2005 at 03:43:09 PM PDT

      [ Parent ]

      •  Heh, indeedy (none)
        Great lawyers.
      •  Not true at all... (none)
        You cannot use Powell's emphasis to claim it as a strict narrowing of what the other 4 said which Powell concurred with.

        Powell and the other 4 justices he concurred with stated that there is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good-faith grand jury investigation

        Think of the implications if there was blanket immunity which the dissenting justices claimed.

        When could you compel anyone to testify to a Grand Jury in a criminal investigation?

        Particualry in the 21st century with the advent of the internet and logging?

        Even if we put medium aside why should anyone be above the law in being exempt from being compelled to testify in a criminal investigation being conducted in good-faith?

        I would agree that there needs to be access to the courts to determine if in deed a grand jury investigation is being conducted in good-faith, but yet again, that should apply to everyone not some nebulous class as "newsmen". This is particularly relevant right now, as we are faced with unprecedented means for wide dissemination of infomration by millions of people, with virtually impentrable annonimity.

        cheers,

        Mitch Gore

        Nobody will change America for you, you have to work to make it happen

        by Lestatdelc on Sat Jul 09, 2005 at 04:04:21 PM PDT

        [ Parent ]

      •  If Powell were so great on this issue (none)
        Or, if he really took a more liberal view rather than trying to split the middle --

        He would have worked out something with the four dissenters, or else a portion of them and a portion of those that wrote the majority position, to draft something stronger.

        The four dissenters don't count in terms of the actual ruling for "5 Justices saw Powell's view as the VERY LEAST to be demanded of prosecutors," since they were dissenters.

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

        by steverino on Sat Jul 09, 2005 at 04:08:49 PM PDT

        [ Parent ]

  •  But yours and Slate's take is not what Powell's (none)
    concurrence meant.

    You claimed, erroneously, that this was a plurality opinion. It is not. It is a 5-4 majority opinion. Justice Powell's concurring opinion was not the opinion of a justice who refused to join the majority (i.e a plurality opinion). As the Miller opinion which was unanimous held, Powell joined the majority by its terms, rejecting none of Justice White's reasoning on behalf of the majority.

    Powell, who expressed no disagreement with the majority about the existence of a constitutional privilege, only emphasized what was clearly in the majority opinion he joined, that there would be First Amendment protection in cases of bad faith investigations.

    From Branzburg, which Powell cocurred with:

    The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.
    ...

    The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not.

    (emphasis mine)

    From Branzburg in the concluding portion of the opinion:

    If there is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good-faith grand jury investigation, then it is a fortiori true that there is no privilege to refuse to appear before such a grand jury until the Government demonstrates some "compelling need" for a newsman's testimony.

    (emphasis mine)

    From Powell's concurring opinion:

    As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will [408 U.S. 665, 710]    be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered.

    The Miller opnion expressly stated that Powell, who expressed no disagreement with the majority about the existence of a constitutional privilege, only emphasized what was clearly in the majority opinion which he joined, that there would be First Amendment protection in cases of bad faith investigations.

    Furthermore, if an appelate cites contempt for failure to testify, they can still appeal to the SCOTUS if there is a belif that they are in fact being compelled to testify in cases of bad faith investigations... which Braznburg has always held did give everyone including "the press" relif from.

    Newsmen are not above everyone or anyone else in their rights. We all share the same rights under the law (in theory) so why the carve out saying that their is a 1st amendment right for one class of people that no other class enjoys under the law?

    cheers,

    Mitch Gore

    Nobody will change America for you, you have to work to make it happen

    by Lestatdelc on Sat Jul 09, 2005 at 03:42:28 PM PDT

    •  That's your opinion (none)
      But from 1972 to 2003, the courts who had decided the issue disagreed with you.

      They recognized the Powell concurrence as the rule.

      See, my problem with you Mitch is you want this to be about your opinion vs. mine.

      But the FACT is that MY view was the law until Posner in 2003 in the 7th, and NOW, ther eis an open question in DC, when there was no open question before.

      Objectively, the DC Opinion CHANGED the law.

      Whether the change was correct, your opinion, is debatable.

      That it is a change is not.

      The SCOTUS is Extraordinary.

      by Armando on Sat Jul 09, 2005 at 03:46:02 PM PDT

      [ Parent ]

      •  Yep. And most references ... (none)
        ...I've seen to the decision call it 4-1-4, not 5-4.

        "The President wanted to go into Iraq in the worst possible way. And he did." -- Nancy Pelosi

        by Meteor Blades on Sat Jul 09, 2005 at 03:49:15 PM PDT

        [ Parent ]

        •  We Wily Media Lawyers (none)
          did that.

          Strictly speaking, Mitch is right, it was a 5-4 decision, with a concurrence.

          A concurrence at odds with the majority opinion.

          Frankly, Powell was meek, he should have had the majority opinion include his language or withhold his vote from the majority.

          Instead, he joined an opinion he contradicted in his concurrence.

          The SCOTUS is Extraordinary.

          by Armando on Sat Jul 09, 2005 at 04:05:27 PM PDT

          [ Parent ]

          •  Not necessarily meek (none)
            Rather than thinking he couldn't assemble four other votes for something stronger, or being "meek," perhaps he was imposing his own "balancing test," or apropos the DC Circuit's recent rulling, indicating he saw this as somewhat of an "open question."

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

            by steverino on Sat Jul 09, 2005 at 04:11:01 PM PDT

            [ Parent ]

            •  Still meek (none)
              He didn't have to join the majority. He could have just concurred.

              Tatel did not join a majority opinion in DC and the result was Miller goes to jail.

              Same thing for Powell.

              The SCOTUS is Extraordinary.

              by Armando on Sat Jul 09, 2005 at 04:13:38 PM PDT

              [ Parent ]

          •  How it is at odds wth the majority? (none)
            From Branzburg in the concluding portion of the opinion:

            If there is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good-faith grand jury investigation, then it is a fortiori true that there is no privilege to refuse to appear before such a grand jury until the Government demonstrates some "compelling need" for a newsman's testimony.

            (emphasis mine)

            From Powell's concurring opinion:

            As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will [408 U.S. 665, 710]    be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered.

            The Miller opnion expressly stated that Powell, who expressed no disagreement with the majority about the existence of a constitutional privilege, only emphasized what was clearly in the majority opinion which he joined, that there would be protection in cases of bad faith investigations.

            cheers,

            Mitch Gore

            Nobody will change America for you, you have to work to make it happen

            by Lestatdelc on Sat Jul 09, 2005 at 04:19:26 PM PDT

            [ Parent ]

            •  It's right there (none)
              This

                  Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered.

              Cannot be reconciled frankly.

              The SCOTUS is Extraordinary.

              by Armando on Sat Jul 09, 2005 at 05:11:59 PM PDT

              [ Parent ]

              •  Not true... (none)
                ...that is precisely what Miller had in this case, and other persons before the court would have.

                They can appeal to have their subpoena quashed and the court can review if it falls under the rubric of a bad-faith investigation or not.

                She appealed, the facts of the case were not on her side and the appeal to quash denied.

                You seem to be of the opinion that the there are valid reasons that a good-faith investigation should still be enough to elevate a  "newsperson" above the law and conceal crimes by refusing to testify.

                That has never been the law, nor should it be.

                cheers,

                Mitch Gore

                Nobody will change America for you, you have to work to make it happen

                by Lestatdelc on Sun Jul 10, 2005 at 12:12:52 AM PDT

                [ Parent ]

      •  Questions (none)
        Which courts?  All of them?  Are there any decisions that accept the majority view between 72 and 03?  Were any of the cases that followed "oddball" Powells statment challenged by a higher court?

        Furthermore, you claim the DC court decision changed the law.  It seems to me that the lower courts following Powell are the one that changed the Supreme Courts opinion:

        "Opinion of the Court by MR. JUSTICE WHITE, announced by THE CHIEF JUSTICE.

        The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not. "

        The 03 DC court simply set things right and chastised 72-03 lower court rulings that ignored the Branzburg Supreme Court ruling.

        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 04:01:17 PM PDT

        [ Parent ]

        •  Semantics (none)
          Did they change Branzburg? I would argue no.

          But taking your construct, it has been changed again, correct?

          The SCOTUS is Extraordinary.

          by Armando on Sat Jul 09, 2005 at 04:03:07 PM PDT

          [ Parent ]

          •  Not changed-upheld (none)
            And if you argue "they" (I'm not sure who your talking about) did not change Branzberg, then I am very confused as to where you stand since the Supreme Court's majority decision in Branzberg specifically says there is no privilege to ignore a subpoena to testify.  

            And the Supreme Court didn't change Branzberg, but again confirmed it recently when they refused to hear Miller's appeal.

            US law as established by the Branzberg case, and recently confirmed again by the Supreme Court, is that there is no privilege.

            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 04:28:06 PM PDT

            [ Parent ]

            •  SCOTUS (none)
              did not confirm anything.

              They refused to take the case.

              Sorry, I don't understand your point.

              The SCOTUS is Extraordinary.

              by Armando on Sat Jul 09, 2005 at 05:10:42 PM PDT

              [ Parent ]

              •  Sorry, thought it was common knowledge (none)
                When the Supreme Court refuses to hear a case, they are essentially upholding the lower courts ruling.  In this case, that ruling compelled Miller to testify.  By not hearing the case, the Supreme Court affirmed the lower court that her claim to journalist protection had no basis in the law as far this criminal investigation is concerned, and she must comply with the court order to testify, or face contempt charges and jail.

                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 06:03:35 PM PDT

                [ Parent ]

                •  wrong, wrong, WRONG. Or incomplete. (none)
                  When the Supreme Court declines to review a case, which happens thousands of times a year, it means NOTHING as to the merits of the opinion below.  The lower court opinion stands, but there is no affirming of its logic in any way.

                  "Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig." -- ACLU v Reno (E.D. Pa. 1996)

                  by Adam B on Sat Jul 09, 2005 at 06:42:55 PM PDT

                  [ Parent ]

                  •  It does mean something (none)
                    It means the lower courts decision stands.  It in effective, affirms the lower courts ruling.  I made no claim about affirming logic or merits.  I said it affirmed the ruling.

                    Are you saying that by declining to hear the case, the court actually might have disagreed with the lower court and overturned their previous Branzberg decision?  But for some reason, they decided to pass on this important constitutional issue?  Are you saying the court would NOT take up the chance to overturn the lower court if they thought the lower courts decision was wrong and unconstitutional?

                    How about the more realistic scenerio.  They agreed with the lower court, decided it be a waste and a rehash of a 1972 decision, so they refused to hear it--thereby affirming the lower courts ruling.

                    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 06:57:41 PM PDT

                    [ Parent ]

                    •  what you miss (none)
                      There is no such thing as "The Court" unless five justices agree.  The lower court's ruling only stands in that Circuit, but only an affirmance is a true affirmance.

                      The Court passes on Important Constitutional Issues every week, and there are many reasons why it might do so.

                      "Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig." -- ACLU v Reno (E.D. Pa. 1996)

                      by Adam B on Sat Jul 09, 2005 at 07:36:58 PM PDT

                      [ Parent ]

                    •  further (none)
                      If a majority agreed with the DC Circuit, they might well have granted cert just to tell the other Circuits to back off.

                      "Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig." -- ACLU v Reno (E.D. Pa. 1996)

                      by Adam B on Sat Jul 09, 2005 at 07:37:32 PM PDT

                      [ Parent ]

                      •  O.K. I stand corrected (none)
                        But still doesn't change my opinion that there is no such thing as journalistic privilege to protect a source if the journalist is ordered by a court to testify for the grand jury.  And still doesn't change the fact that that was upheld by the Supreme Court back in 1972 in the Branzberg case.

                        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 08:04:52 PM PDT

                        [ Parent ]

      •  But Powell's concurrence (none)
        was only that:

        As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will [408 U.S. 665, 710]    be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy.

        And it isn't just my opinion, it is also the unanimous opinion of the court in the Miller case, and that of Tatel who concurred that their is no no First Amendment privilege to refuse to answer the relevant and material questions asked during a good-faith grand jury investigation.

        Objectively... what you claim lower court rulings did was change what the majority, including Powell held in Branzburg.

        It is objectively that Miller undid the changing of the law that the lower courts did in misreading Powell.

        What about the horrifying prospect (and many, myself included would posit the reality we have now) of proxies of the Government being sacrosanct in leaking anything at all to attack anyone at all?

        That poses a far more harrowing and damaging chill on exposing the truth and Government malfeasance and potential cowing of "the press" than what you contend Miller does.

        I posit it is vital in this day and age that it undo the notion put forward by you and lower courts that classes of people be exempt from testifying in good-faith investigation on a 1st amendment ground, because of the power of new mediums such as the internet.. but going beyond that, it goes to the notion that we are all equally protected under the law or not.

        cheers,

        Mitch Gore

        Nobody will change America for you, you have to work to make it happen

        by Lestatdelc on Sat Jul 09, 2005 at 04:15:26 PM PDT

        [ Parent ]

        •  What Tatel said (none)
          Was that even in the majority in Branzburg you could find support for a privilege:
          Yet even the Branzburg majority declared that "news gathering is not without its First Amendment protections," id. at 707, a phrase we have interpreted (albeit in dictum) to "indicate[] that a qualified privilege would be available in some circumstances even where a reporter is called before a grand jury to testify," Zerilli v. Smith, 656 F.2d 705, 711 (D.C. Cir. 1981). Branzburg's caveat, placed in a discussion of "[o]fficial harassment of the press" and "grand jury investigations . . . instituted or conducted other than in good faith," Branzburg, 408 U.S. at 707-08, seems to refer only to journalists' power to quash "unreasonable or oppressive" subpoenas, see Fed. R. Crim. P. 17(c)(2). But given that any witness -- journalist or otherwise -- may challenge such a subpoena, the majority must have meant, at the very least, that the First Amendment demands a broader notion of "harassment" for journalists than for other witnesses. Reinforcing that view, the majority added, "We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth." Branzburg, 408 U.S. at 708.  That prediction, too, would appear meaningless if no First Amendment safeguards existed for subpoenaed reporters.

          Moreover, Tatel cites prior DC Circuit opinions confirming the privilege in certain circumstances:
          We ourselves have affirmed the denial of a criminal defense subpoena on grounds that the defendant "failed to carry his burden" of "demonstrat[ing] that the reporters' qualified privilege should be overcome." United States v. Ahn, 231 F.3d 26, 37 (D.C. Cir. 2000). In civil litigation, moreover, we have held that the First Amendment requires courts to "look to the facts on a case-by-case basis in the course of weighing the need for the testimony in question against the claims of the newsman that the public's right to know is impaired." Carey, 492 F.2d at 636; see also Zerilli, 656 F.2d at 707 (affirming the denial of a motion to compel discovery because "in this case the First Amendment interest in protecting a news reporter's sources outweighs the interest in compelled disclosure").

          "Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig." -- ACLU v Reno (E.D. Pa. 1996)

          by Adam B on Sat Jul 09, 2005 at 04:33:59 PM PDT

          [ Parent ]

    •  Powell's clarification (none)
      Maybe that's what it should be called.  Powell was attempting to clarify what he thought the majority opinion actually meant and as Armando points out, that's how "great lawyers" argued these cases up until now.

      The D.C. circuit pretty much killed that argument.  The law has changed in the D.C. Circuit and that gives plenty of ammo to prosecutors in other circuits to argue against the Powell Clarification as it has been used.

      If there was ever a time for SCOTUS to clarify Branzburg it would have been in this case but they chose not to hear the appeal.

    •  There's Armando's "if" (none)
      Both in the majority opinion:
      If there is no First Amendment privilege ..."

      And from Powell, more specific to the common-law level:

      If a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered.

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

      by steverino on Sat Jul 09, 2005 at 04:32:44 PM PDT

      [ Parent ]

  •  i'm no lawyer, but (none)
    i wasn't ever unclear on this.  why is it ...nevermind.  this whole judith miller thing stinks to high heaven.  why isn't robert novak in jail?  he talked?  whom did he implicate?  why is this investigation still going on??

    "Private property means you get nothing"
    -Jeff Ott

    by mediaprisoner on Sat Jul 09, 2005 at 03:45:03 PM PDT

  •  open question? (none)
    You write, "Before there was a recognized reporter's privilege, now it is an open question."

    Your first take on the ruling was that it "flatly states there is no reporters' privilege, either under the First Amendment or federal common law." You told me yesterday you stood by this interpretation.

    Which of these interpretations truly reflects your opinion? Or can you explain to me how both can?

    •  As it stands (none)
      I think effectively, as apractical matter, it means no reporters' privilege.

      In the DC Circuit, as a lawyer, I would argue that it is an open question.

      Advising my clients, I would say you should assume that there is no privilege in the DC Circuit, because Henderson's sophistyr notwithstanding, by not saying there was one, as there has been recognized in the past, is tantamount to saying it does not exist.

      The SCOTUS is Extraordinary.

      by Armando on Sat Jul 09, 2005 at 04:00:22 PM PDT

      [ Parent ]

  •  For those voting no (none)
    If you care, can you tell me what you don't understand about my position?

    The SCOTUS is Extraordinary.

    by Armando on Sat Jul 09, 2005 at 04:01:13 PM PDT

    •  I have a couple of questions (none)
      That aren't position related (though after I read that another five times, I may have a couple more questions):

      1. Was the Supreme Court's decision not to hear the case based on the evidence of the case? In other words, had the evidence thus far gathered been less egregious, might the court have decided differently? Or was it simply on the merits of whether of not any ole reporter deserves protection?

      2. Do you think the decision represent a conservative bias against the media?

      3. Is there any record of what evidence was used to call Miller as a witness? Or is all that super hush-hush and strictly for inside players?

      There are heroes on both sides. Evil is everywhere.

      by JaneKnowles on Sat Jul 09, 2005 at 04:40:03 PM PDT

      [ Parent ]

      •  I can answer these (none)
        1.  We have no idea why there were not four judges wishing to hear the case.  Could just be that no one believed s/he had five votes in favor of her preferred position, or that six justices felt the decision below was correct and in no need of review.

        2.  I don't think the two are connected.

        3.  It consists of eight redacted pages in Judge Tatel's opinion, about which he concludes: "In sum, based on an exhaustive investigation, the special counsel has established the need for Miller's and Cooper's testimony. Thus, considering the gravity of the suspected crime and the low value of the leaked information, no privilege bars the subpoenas."

        "Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig." -- ACLU v Reno (E.D. Pa. 1996)

        by Adam B on Sat Jul 09, 2005 at 04:46:54 PM PDT

        [ Parent ]

        •  Thanks (none)
          So at least in Tatel's case, his decision was based on the evidence of this one particular case?

          There are heroes on both sides. Evil is everywhere.

          by JaneKnowles on Sat Jul 09, 2005 at 04:53:27 PM PDT

          [ Parent ]

          •  well (none)
            The three judges of the DC Circuit wrote opinions dealing with these issues -- one said "there is no privilege", one said "I don't know if there's a privilege, but it would be overcome here" and Tatel said "I think there should be a privilege, but it would be overcome here."

            The Supreme Court offers no opinion for not granting review; occasionally, a judge will write as to which it should have been granted.

            "Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig." -- ACLU v Reno (E.D. Pa. 1996)

            by Adam B on Sat Jul 09, 2005 at 04:57:36 PM PDT

            [ Parent ]

            •  So then (none)
              would not a lawyer who was arguing for shielding his client simply state that because of the extraordinary nature of this case and the fact that two judges argued that their decision was based on evidence each case needs to be looked at separately? I mean it's not as though the judges were saying, "Feh, journalist priviledge is bunk--feed them all to the lions." Or is the deal that the details don't matter as much as the rejection?

              There are heroes on both sides. Evil is everywhere.

              by JaneKnowles on Sat Jul 09, 2005 at 05:04:44 PM PDT

              [ Parent ]

              •  you can't, really (none)
                1. This case isn't extraordinary.  But the details matter.
                2. To the extent that Judge Henderson looked at the evidence, it was only to avoid looking at the legal question.
                3.  As Sentelle summarized in the Court's united opinion, "The Court is not of one mind on the existence of a common law privilege. Judge Sentelle would hold that there is no such common law privilege for reasons set forth in a separate opinion. Judge Tatel would  hold that there is
                such a common law privilege. Judge Henderson believes that we need not, and therefore should not, reach that question. However, all believe that if there is any such privilege, it is not absolute and may be overcome by an appropriate showing."  

                So I'd hope that my facts were better and that Sentelle wasn't on my panel.  

                "Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig." -- ACLU v Reno (E.D. Pa. 1996)

                by Adam B on Sat Jul 09, 2005 at 05:21:27 PM PDT

                [ Parent ]

                •  I get it now (none)
                  Thanks for helping me along. So there was a shift--perhaps not of tetonic plate proportions (though those are often so overrated!)--enough to put a great big crack in the foundation, which creates a lot of uncertainty and potential for movement in the wrong direction.

                  There are heroes on both sides. Evil is everywhere.

                  by JaneKnowles on Sat Jul 09, 2005 at 05:37:53 PM PDT

                  [ Parent ]

                  •  So you don't believe me? (none)
                    Only Mr. Weiner?

                    The SCOTUS is Extraordinary.

                    by Armando on Sat Jul 09, 2005 at 06:26:48 PM PDT

                    [ Parent ]

                    •  I believe you (none)
                      I was making a joke at Josh Marshall's expense, not commenting on your conclusion. Though you can clarify, do you think this is tetonic plate and more than just a serious foundation crack? Better yet, will this outcome render your specialty obsolete in six months or less?

                      Finally, who is Mr. Weiner?

                      There are heroes on both sides. Evil is everywhere.

                      by JaneKnowles on Sat Jul 09, 2005 at 06:41:36 PM PDT

                      [ Parent ]

                      •  Last first (none)
                        Adam's wife is the famous author Jennier Weiner (I amy be worng on the first name).

                        A potential problem, not the floor falling through is where we are.

                        The SCOTUS is Extraordinary.

                        by Armando on Sat Jul 09, 2005 at 06:43:36 PM PDT

                        [ Parent ]

                        •  What did you think (none)
                          about the bloggers having to give up their sources to Apple?

                          What's Mr. Weiner got to do with anything? I know he repped Markos, but I don't get the connection with Miller.

                          There are heroes on both sides. Evil is everywhere.

                          by JaneKnowles on Sat Jul 09, 2005 at 07:07:28 PM PDT

                          [ Parent ]

                          •  You were replying to him (none)
                            On the other thing, I posted a front page piece on why bloggers should be covered in the privilege, cited Floyd Abrams who agrees.

                            Incase you missed who him is, it is acbonin. Adam bonin.

                            The SCOTUS is Extraordinary.

                            by Armando on Sat Jul 09, 2005 at 08:07:31 PM PDT

                            [ Parent ]

                          •  Okay, the light finally goes on (none)
                            So now I wonder. While he doesn't view this as representing a conservative bias against the media, do?

                            There are heroes on both sides. Evil is everywhere.

                            by JaneKnowles on Sat Jul 09, 2005 at 09:25:32 PM PDT

                            [ Parent ]

  •  You left out one on your poll (none)
    Armando Ispoopy is a Traitor

    Now that I've revealed your real last name you won't seek retribution, right?

    Never have so few taken so much from so many for so long.

    by mapKY on Sat Jul 09, 2005 at 04:23:52 PM PDT

  •  BTW... (none)
    I voted yes, though I still disagree with your assertions and conclusions and more fundamentally the letter and approach you think the law has and should take on this issue.

    But, ideally I would have liked to have voted yes and option 3!

    ;-)

    Now... damn family needs me for most of the rest of the day, but will check back later this evening.

    Glad you opened this new diary so we could continue to slug it out.

    cheers,

    Mitch Gore

    Nobody will change America for you, you have to work to make it happen

    by Lestatdelc on Sat Jul 09, 2005 at 04:35:45 PM PDT

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site