Deconstructing Branzburg

May 29, 2009 | Insights

By Bob Latham

In 1965, Eric Burdon sang “I’m just a soul whose intentions are good; oh Lord, please don’t let me be misunderstood.” Seven years later, the United States Supreme Court issued its opinion in¬†Branzburg v. Hayes, the seminal case on the issue of reporter’s privilege. What do these two events have in common? Well, if Supreme Court opinions were stars of classic vinyl,¬†Branzburg v. Hayes¬†would be Eric Burdon. While¬†Branzburg v. Hayes¬†is often misunderstood, the passing of a shield law for reporters in Texas this month, after many years of trying, offers an opportunity to examine any good intentions of¬†Branzburg.

As all media practitioners know,¬†Branzburg¬†consisted of a plurality opinion, four justices dissenting, and Justice Powell’s off-cited concurrence that Justice Stewart’s dissenting opinion presciently referred to as “enigmatic.” For many years in Texas and in the Fifth Circuit, as in many other jurisdictions, Justice Powell’s concurring opinion, when coupled with the dissents, was used to urge a constitutionally based qualified privilege for reporters. But in the mid 1990s, the interpretation of¬†Branzburg¬†began to change and was no longer a reliable foundation when seeking to quash subpoenas issued to reporters in criminal or civil matters. Thus began a long effort in Texas, over many legislative sessions, to try to enact a shield law.

In testifying in support of the shield law over those many sessions, I confronted more views and interpretations of¬†Branzburg v. Hayes¬†than there are of Sean Penn (or Eric Burdon for that matter). There were law enforcement personnel testifying against a shield law who declared that the United States Supreme Court had finally settled the issue in¬†Branzburg¬†and, therefore, there was no compelling reason to provide any special protection for reporters when called to testify in criminal matters. I encountered fears from state legislators that they would be effectively overturning Supreme Court precedent. I also encountered views of those who continued to make the argument that worked for many years ‚Äď that cobbling together the various opinions of¬†Branzburg¬†results in a constitutionally based reporter’s privilege and thus a shield law was unnecessary.

Texas has now become the 37th state (plus the District of Columbia) to provide journalists with some character of statutory privilege.

In my efforts to address¬†Branzburg¬†in my testimony, I generally did not focus on the low-hanging fruit of the dissenting opinions or the mid-hanging fruit of Justice Powell’s concurrence, but rather on the more elusive, but nevertheless existing, fruit that is offered in the plurality opinion itself. Specifically, I urged that what the Texas state legislature was doing was not anti-Branzburg, but was indeed contemplated by¬†Branzburg¬†and in fact¬†encouraged¬†by¬†Branzburg. It is rare for a Supreme Court opinion to specifically invite state legislatures to enact legislation that might offer legal protection for which the opinion found no constitutional basis. But, that is indeed what the¬†Branzburg¬†plurality did in stating, “there is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems with respect to relations between law enforcement officials and press in their own areas.” Thus, in finally enacting a state shield law in Texas, the Texas legislature acted in furtherance of¬†Branzburg, not counter to it.

Texas has now become the 37th state (plus the District of Columbia) to provide journalists with some character of statutory privilege. Doing the easy math, 74% of states now have a shield law for reporters, an overwhelming majority and only one shy of the number of states required to ratify an amendment to the U.S. Constitution.

In Branzburg, the plurality opinion examined the history of reporters being called upon to testify and relied in part on the fact that the majority of states had not enacted any statutory privilege for reporters. Indeed, the Branzburg plurality specifically referenced that only 17 states had done so. Would Branzburg have been decided differently if 37 states at the time had enacted statutory protection for reporters? Perhaps. And that may be a point worth raising as practitioners and news organizations in the remaining 13 states without a shield law engage in efforts to join the other 37. Regardless, there can be no question that no member of the Branzburg court would be offended by those efforts.

‚ÄĒ¬†Bob Latham¬†is a partner at Jackson Walker. He can be reached at¬†

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.