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 AħO I  *LL    A 11  AA

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