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An influential judge rereads Branzburg

Floyd Abrams

First Amendment attorney

Floyd Abrams

Judge Posner wrote an opinion in a case involving confidential sources having nothing to do with national security in which he basically said he was surprised that so many courts had said there was legal protection after the Branzburg case. But the way he read the case, there really wasn't much, if any, legal protection at all for the press to protect its confidential sources.

In federal court.

In federal court, and particularly in grand jury cases. That case has been influential with a number of other judges. In a few circuits, a few areas of the country, judges have leaned on that case.

But that's just a way of saying some judges view it one way, some judges view it another. It's not a dead issue. It's not a done matter.

Lucy Dalglish

Executive director, The Reporters Committee for Freedom of the Press

Lucy Dalglish

... We got to this case in the 7th Circuit called McKevitt [v. Pallasch]. That was a situation in which three reporters who worked for newspapers in Chicago, who had been working on ... an independent book project, were subpoenaed by a court in Ireland because they had tape-recorded conversations with a witness in an Irish terrorism case.

The prosecution and the defense in Ireland said, "We need those tapes to impeach this witness." So the reporters went back and said: ... "Hey, this is not a U.S. grand jury situation. There's no real high stakes here. We shouldn't have to turn over these tapes." ...

When the local court said they had to hand them over, they said, "Well let's go to the 7th Circuit and see if they will issue a stay and consider the case." Almost immediately the 7th Circuit came back and said, "No stay." ... [The reporters] decided it's not like they were protecting a confidential source. They felt that they did what they could to avoid complying with the subpoena before the judge forced them to turn over the tape. So they said, "OK, uncle, here's the tape." So they turned the tape over to the FBI, which redacted a bunch of stuff before it turned it over to the Irish.

But in the meantime, something very strange happened. Judge Richard Posner, who's a very influential judge nationwide, decided that even though there were no briefs filed, and even though there were no oral arguments, he thought he should write an opinion.

He's a judge on the 7th Circuit.

He's a judge on the 7th Circuit. And he wrote this opinion a few weeks later and just released it and said: "I know that there's no issue in front of us anymore, but I just wanted to be clear that I've reread the Branzburg case, and all you people, all you judges out there who have been saying for the last 30 years that Branzburg provides some sort of privilege are wrong. There is no privilege in Branzburg, period."

Since he's a very influential judge, judges across the country have been looking to that McKevitt decision to just refuse to quash subpoenas left and right. ... Things have been fairly ugly ever since.

Randall Eliason

Former prosecutor

Randall Eliason

[7th Circuit Judge] Richard Posner wrote an opinion reminding everyone about what the actual verdict was in Branzburg v. Hayes, and people have correlated that with less of a reluctance now to subpoena journalists. ... Do you see that as having any influence in this decision with Josh Wolf?

I think it's pretty hard to make that correlation. Judge Posner is a very highly regarded judge, and that was an influential opinion, or an important opinion. But, you know, he's in the 7th Circuit; Josh Wolf is in California, not governed by Judge Posner's opinion. And the 9th Circuit has had its own law for a long time on when there is or is not a privilege, and held long ago that Branzburg does apply in a grand jury proceeding. So I just don't see it really having any significant effect. ...

James Goodale

First Amendment attorney

James Goodale

But recently, Judge [Richard] Posner in Chicago ... [has] written about [your interpretation of Branzburg], and he says you're dreaming.

Well, he's dreaming. I'm really angry at Judge Posner. (Laughs.)

Yeah, but the courts in the D.C. circuit agreed with him.

Well, what happened was that Judge Posner is a brilliant, brilliant judge. And here we are 30 years later; he has one of these what I call reporter's privilege cases, a case where a reporter doesn't want to testify. He looks at the law and says that the federal courts have been misinterpreting what I had done, or he's basically saying what I did was wrong. I personally don't think he spent enough time thinking about it. But that sent a chill through this army. ...

Well, the other way to look at it is the court ruled five to four there is no privilege and Powell was just saying it'd be nice is Congress passed a law or somebody did something to protect repoters.

Yeah. Well, Powell was just blowing smoke.

Right. And you had taken the smoke and made it appear to be real.

Yeah. Right.

That's what [Posner's] saying. He called your bluff.

Yeah. Well, I don't think it's a bluff, with all due respect. ...

Well, he decided an opinion that goes just to the opposite of what you wrote about and what you were just saying was so influential. He in a sense told you you sweated too much in that room.

I sweated too much, and I'd wasted my time, and that in the area of the country where he is a judge -- which is Chicago, Indiana and Ohio, roughly speaking -- in those courts, reporters will not have the benefit of all these cases which all these lawyers spent so much time building up, and ... will not have the protection that they had before. Then what happened was that a judge in District of Columbia read his opinion and applied it in the famous [New York Times reporter] Judy Miller case. ...

What has happened over the last 15 years, as the country has become more conservative, the judiciary's become more conservative. ... I think it's a fair statement to say that as conservatives such as Judge Posner have come on the court, who probably favor government more than they favor the press just in personal terms, then when they get there and do that balancing process, I think part of their personal perspective on life comes into play, and they will balance toward authority ... instead of freedom.

So it doesn't look good in the future?

I tell you, the reporter's privilege will never die. There will always be a reporter's privilege, and that is because there are always going to be some judges who do not want to deal with a terrible situation of destroying a reporter's career, putting that reporter in jail or otherwise disabling a reporter. ... Last year, two lower-court judges had reporter's privilege cases. They picked up Posner's opinion, and they said: "Oh my goodness. We can't make that argument that always has been made by reporters for their privilege. Hmm." They came up with other ways to get the reporters off, right in Posner's own court. … The reporter is always going to win in the long run.

William Bradford Reynolds

Former assistant attorney general

William Bradford Reynolds

... To the extent [Goodale's interpretation of Branzburg] had an impact on the legal horizon, some lower courts -- not many -- but some lower courts, I think, expressed the view that reporters may have a privilege in certain circumstances. I think Judge [Richard] Posner in the 7th Circuit treated with that pretty squarely and said that was a misreading of Branzburg. I don't know where the general sense of the media is after the Posner decision.

There is a sort of 30-year period where across the country many judges agreed, it seemed, with Goodale's interpretation that reporters did pretty much have a privilege in most cases, except in very extreme cases. And actually, when we looked at reporters being subpoenaed during that 30-year period, it was ... really hard to find reporters who have been subpoenaed. Since the Posner ruling, ... there's an increase in the number of people subpoenaed. Now, it could just be a coincidence, or it could be that Posner really did have an impact. ... Can you just comment on that?

... I suspect that that phenomenon is more something where you should look to the executive branch rather than the judicial branch. It may well be that the politics of the issue and the administration that was responsible for law enforcement took a more relaxed view about subpoenaing reporters during that period of time, and then with the Court having come in and saying it's permissible to do it, decided that it was going to assert itself into that area more. ...

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posted feb. 13, 2007; last updated feb. 27, 2007

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