A Revisionist View of Journalist’s Privilege

Abstract: This Article reviews the papers of Justice Powell, housed at Washington & Lee University, as well as the papers of other Justices housed at the Library of Congress, to illuminate one of the most important, yet confusing concurring opinions in the Court’s First Amendment cases. In addition, extensive interviews with Powell’s clerks provide insight into the development of Justice Powell’s views.

Justice Powell’s papers, which include his handwritten notes and commentary, as well as memoranda and draft opinions, show clearly that he was opposed to a constitutional privilege for journalists. The interest balancing he advocated was based on reasonableness, with no substantive weighting or preference for First Amendment values. Consequently, the balancing he envisioned falls far short of offering the significant protection media lawyers sought in Branzburg. Moreover, his discomfort with treating journalists differently than others undercuts any special solicitude for journalists. While Powell’s opinion offered a softer tone and style than White’s opinion, lower courts that have read Powell’s concurring opinion broadly have misread that opinion.