Concurring in Part & Concurring in the Confusion

When a federal appellate court decided last year that two reporters must either reveal their confidential sources to a grand jury or face jail time, the court did not hesitate in relying on the majority opinion in the Supreme Court’s sole comment on the reporter’s privilege-Branzburg v. Hayes. “The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter,” Judge Sentelle wrote for the three-judge panel of the Circuit Court of Appeals for the District of Columbia. By this declaration, the court dismissed with a wave of its judicial hand the arguments made by the reporters and media arnici that the court should follow the more lenient concurring opinion of the fifth justice in Branzburg, Justice Powell, rather than the restrictive opinion of the Court authored by Justice White. The reporters had contended that while Justice White’s opinion rejected any constitutional privilege in this situation, Justice Powell’s concurrence advocated a case-by-case balancing approach and thus left an opening for a constitutionally based privilege. Because it provided the crucial fifth vote in the case and was the “least common denominator” between the views of the majority and the dissenters, Justice Powell’s opinion should control, the reporters had submitted.