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11 Comm. Law. 1 (1993-1994)

handle is hein.journals/comlaw11 and id is 1 raw text is: Twenty Years After Branzburg Echoes for Justice White in Philadelphia BY BRUCE W. SANFORD* It is the Third Circuit. May 6, 1992. Twelve black robes sitting en banc. Chief Judge Delores Slovi- ter, a Carter appointee, is an isthmus between ten appoint- ments of the Reagan-Bush administrations. (Senior Judge Leon Higginbotham anchors one end of the bench.) On a spring day in Phila- delphia only a few blocks from where the founding fathers drafted the Con- stitution of the United States, the court con- venes to hear argument in the most important reporters privilege cases of recent years. The results-a 6-6 tie -suggest that the media has a bit of homework to do before a U.S. Su- preme Court-one with- out Justice White-is asked to reconsider the First Amendment rights of re- porters to protect the con- fidentiality of their sources. Last year marked the twenti- eth anniversary of the Supreme Court's landmark 4-1-4 decision in Branzburg v. Hayes, 408 U.S. 655 (1972). Writing for the Court, Justice White took a decidedly crabbed view of the journal- istic need to protect the iden- tity of confidential sources. Without some protec- tion for seeking out the news, he wrote, free- dom of the press could be eviscerated. It is a line loved and quoted by communications lawyers everywhere. Of course, in Branzburg, Justice White then pro- ceeded to eviscer- ate constitutional protection for re- porters facing grand jury subpoenas. We are unwilling to em- bark the judiciary on a long and diffi- cult journey to ... an uncertain destination. The administration of a constitutional newsman's privilege would... pre- sent practical and concep- tual difficulties of a high order.... and the press... is far from helpless to protect it- Cotinued on page 18 I ~~~INIETIISU Illustration by Chuck Gonzales .!1 k eim a a ki k, i i ! r 0 Communications Publication of the Forum C on Commnication Lawye American Bar Association Volume 11, Number 1, Spring 1993 - elk A LAEA LOI A±O I *LL A 11 AA

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