Branzburg Revisited: Confidential Sources and First Amendment Values
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Sources and First Amendment Values*
Monica Langley** and Lee Levine***
Sixteen years ago, the United States Supreme Court decided
Branzburg v. Hayes, I the full Court's first and only discussion of the
scope of the constitutional protections afforded ajournalist's prom-
ise of confidentiality to a source of information.2 Branzburg came to
the Court in the wake of the press' efforts to report on the activities
of anti-establishment groups that had been threatened with crimi-
nal prosecution for engaging in allegedly illegal, and often violent,
* The authors wish to express their appreciation to Elizabeth C. Koch, a member
of the District of Columbia Bar and an attorney at Ross Dixon & Masback, for her
invaluable assistance in the preparation of this Article.
** Reporter, The Wall Street Journal, Washington, D.C.; Adjunct Professor,
Georgetown University Law Center; Member, District of Columbia Bar. B.S. 1980, Uni-
versity of Tennessee; J.D. 1983, Georgetown University Law Center.
*** Attorney, Ross, Dixon & Masback, Washington, D.C.; Member, District of Co-
lumbia Bar; B.A., M.A. 1976, University of Pennsylvania; J.D. 1979, The Yale Law
School.
1. 408 U.S. 665 (1972).
2. Since Branzburg, the Court has resisted the opportunity to revisit the question of
constitutional protection against compelled disclosure of the identities of confidential
sources and other information. See, e.g., Miller v. Transamerican Press, Inc., 621 F.2d
721 (5th Cir. 1980), cert. denied, 450 U.S. 1041 (1981) (allowing discovery of identity of
confidential source where informant's identity is the only way plaintiff can establish mal-
ice). Several justices, however, have had occasion to consider the question, at least to
some extent, in chambers' opinions. See, e.g., New York Times Co. v. Jascalevich, 439
U.S. 1301, 1302 (1978) (White, J.) (stating that [t]here is no present authority in this
Court that a newsman need not produce documents material to the prosecution or de-
fense of a criminal case); New York Times Co. v. Jascalevich, 439 U.S. 1331, 1335
(1978) (Marshall, J.) (suggesting that some First Amendment protection should be af-
forded); In re Roche, 448 U.S. 1312, 1316 (1980) (Brennan,J.) (predicting that there is a
fair prospect that the full Court would recognize constitutional privilege).
November 1988 VoL 57 No. 1](ViewImageLocal?handle=hein.journals/gwlr57&div=12&collection=&method=preview&ext=.png&size=3)
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Branzburg Revisited: Confidential Sources and First Amendment Values
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