Will, thank you for your comment. I hope my comment didn’t seem overly polemical, though as you may have seen if you’ve poked around on the web, there are plenty of polemics to go around on the Belfast Project and the issues it has raised.

You may well be right as a policy matter about what the law should be. It seems to me that if you are right, the answer really lies with Congress in light of Branzburg. But even if you are right as a policy matter about a reporter’s privilege—and I think you are—I am not sure the reasoning carries over to the Belfast Project. A reporter promises confidentiality in order to bring news to the public’s attention right away. Moloney and McIntyre do not intend to publish details of particular interviews until an unspecified time in the future. In the reporter’s case the identity of the source is secret but the substance of the news is known. Here, at least one of the sources’ identities is known but the substance of the interview is to be kept secret. But I could be wrong in my views about the policies at stake.

I enjoyed reading your thoughtful post on my article about the Belfast Project case. Your criticism of my treatment of Justice Powell’s concurrence is well-taken. How to treat Justice Powell’s concurring opinion is an interesting and difficult question, and unfortunately the SLR Online format didn’t leave me with as much space as I would have liked to explore it.

I think you’re right that Branzburg’s majority opinion categorically rejects a reporters’ privilege. This is certainly how the DC Circuit and the First Circuit have interpreted the opinion, and I tend to agree with this interpretation—although if you squint hard you can find some ambiguity in Justice White’s language. The fact that Justice Powell joined the majority opinion would usually end the inquiry. Typically, when a Justice writes a separate concurrence after joining a majority opinion, the Justice writes only to elaborate on a point not made by the majority, but doesn’t express any views that are inconsistent with the Court’s holding. Branzburg is interesting because Justice Powell’s concurrence—in which he recognizes a limited privilege to be adjudicated on a case-by-case basis—seems flatly inconsistent with the majority’s categorical rejection of a privilege.

If Justice Powell hadn’t concurred in the majority opinion, then, as the fifth vote, his concurrence would be controlling. But since he did join the majority, he must have believed that his recognition of a limited privilege could somehow be reconciled with the majority’s view. Either way, it seems to me that Justice Powell’s view should at least inform how lower courts adjudicate these claims going forward. And that’s what I think the First Circuit got wrong.

There are a number of ways that courts could interpret Branzburg in light of Justice Powell’s recognition of a limited privilege. One way is to apply case-by-case balancing. Because this is the method Justice Powell himself suggests, it’s the one my article addresses. But I also think that courts could apply something akin to strict scrutiny when the government subpoenas a reporter’s confidential source—placing the burden on the government to prove that the subpoena is necessary to advance a compelling interest. If the Supreme Court takes the Belfast Project case, I imagine the strict scrutiny alternative—a methodology common to First Amendment cases—would be much more appetizing to the Court than the case-by-case approach.

But, regardless of the best analytical approach, I think that First Amendment principles make clear that government subpoenas of journalists’ confidential information must be subject to some meaningful judicial scrutiny. If the government were free to force journalists to turn over information obtained on the condition of confidentiality, subject to no scrutiny whatsoever, then a vital component of freedom of the press would be eviscerated.

Regards,
Will Havemann