In the 1972 case Branzburg v. Hayes, the Supreme Court considered, for the first and only time, a reporter’s claim to First Amendment protection from revealing confidential sources in court. Up to that point any potential witness, journalist or otherwise, could assert only their Fifth Amendment right against self-incrimination. “We are asked to create another [right] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy,” Justice Byron White wrote for the 5–4 majority. “This we decline to do.”

Patrick Fitzgerald read those words from a PowerPoint slide projected on a screen in a Law School seminar room. The former US attorney who prosecuted Illinois governors George Ryan and Rod Blagojevich taught Investigative, Trial, and Policy Issues in Criminal and National Security Law during the spring quarter.

Fitzgerald distilled White’s decision for about two dozen students seated at tables in a semicircle around him. “Reading his opinion you would have to say that, from the reporters’ side, they lost. Do you recall what Powell’s concurrence said?”

A student ventured a response, but struggled to summarize Justice Lewis Powell’s opinion in the case. Fitzgerald sympathized. “Even one of the other justices dissenting called it an enigmatic opinion from Justice Powell, so you can feel reassured that your confusion as to what he quite said was shared by the same guys who served on the Supreme Court with him,” Fitzgerald said. “And was shared by courts for decades afterward.”

Although he joined the majority in denying reporters First Amendment protection, Powell called for a “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony.” That hedge obscured an otherwise clear ruling.

Using Powell’s concurrence as support, First Amendment attorneys have argued that the case actually upheld a journalist’s right to protect anonymous sources. Despite White’s plain majority opinion, judges often accepted the interpretation that Branzburg established the so-called reporter’s privilege—until a 2003 case came before the Seventh Circuit Court of Appeals.

McKevitt v. Pallasch involved reporters refusing to turn over interview recordings relevant to the prosecution of a suspected Irish terrorist. Denied a stay, the journalists produced the tapes, concluding the case. Richard A. Posner, a senior lecturer at the Law School and one of the Seventh Circuit’s three presiding judges, nevertheless took the opportunity to weigh in on the confusion Powell created. “A large number of cases conclude, rather surprisingly in light of Branzburg, that there is a reporter’s privilege,” wrote Posner, not at all confused.

Powell wasn’t either, his prose notwithstanding. In class Fitzgerald described the justice’s handwritten notes on the case, published in the New York Times in 2007. On a scrap that Fitzgerald compared to a golf scorecard, Powell scribbled, “We should not establish a constitutional privilege,” a statement as clear as his published opinion was opaque. “While everyone else puzzled over what he meant,” Fitzgerald said, “he had this little note to himself.”

One of the questions Powell raised in that note seems especially relevant four decades later: “Who are ‘newsmen’—how to define?” If the media in 1972 lacked clear boundaries, today’s push-button online publishing capability blurs the lines even more.

Fitzgerald gave the students a hypothetical to outline the parameters of the reporter’s privilege. Suppose that Osama bin Laden remained at-large, he said, and someone went to the FBI with information on his whereabouts. The informant wanted nothing in return except a promise of anonymity in any public disclosure about what led them to bin Laden. “Do you think the FBI agent is empowered to make that promise?”

“I don’t think he can,” a student offered, “because, depending how it happens, a case could get litigated and a judge could order that information.”

“That’s correct. The FBI agent couldn’t make that promise,” Fitzgerald said, noting that he believed nobody in the government could assure confidentiality to a source, including the president. He wondered if that fact influenced how the students felt about giving everybody with a blog—the clichéd pajama-clad, basement-dwelling self-publisher—the right to protect those who leak state secrets.

“I understand you’re kind of pushing a line that it seems absurd that we’re going to give this heightened grant to the guy in his pajamas vis-à-vis the president of the United States,” a student responded. But he argued that the interests underlying the distinction—an informed public versus government suppression of secrets—supported erring on the side of press freedom. “If the price of that is they’re going to get this superheightened right, then that’s the price we’re willing to pay in order to have that level of public knowledge. Whereas, when you talk about the president, generally I don’t know how comfortable I am with the president being able to keep anything 100 percent secret all the time.”

To serve national (or political) interests, the president can authorize disclosures or declassify information in order to allow its release. For leaks the government doesn’t like, on the other hand, it can literally make a federal case out of identifying a reporter’s source. Fitzgerald’s class discussed these issues in mid-May, before the Obama administration’s seizure of Associated Press phone records became public, but one student identified a disconnect in the scenarios, real or hypothetical.

“I think this series of examples hits on an issue for me with this whole material, which is, why are we dealing with this as a privilege at all?” he said. “I mean, if there’s a First Amendment interest in having reporters have access to this information, why is it not a First Amendment violation to criminalize leaks?”

The ambiguity of prohibiting government officials from divulging certain information while protecting reporters who received it from testifying, he suggested, creates legal vertigo more than it balances competing interests. “If we refigured the analysis to say, ‘Which of these leaking behaviors can we criminalize without violating the First Amendment, and which of these leaking behaviors can we not criminalize without violating the First Amendment,’ then the inquiry seems much clearer to me.”

Justice Powell probably would concur. 

Syllabus

Patrick Fitzgerald prosecuted terrorism and government corruption as a US attorney in New York and Illinois for almost two decades. Now a partner in the Chicago office of Skadden, Arps, Slate, Meagher & Flom, Fitzgerald became the Law School’s first Steven Feirson distinguished lecturer this past spring. With fellow Skadden partner Michael Scudder, a former White House legal adviser, Fitzgerald taught Investigative, Trial, and Policy Issues in Criminal and National Security Law. They drew on their own careers—discussing real-life cases and hypotheticals reflecting the complexity they’ve encountered. “They’re issues the country has struggled considerably with after 9/11,” Scudder told the Chicago Tribune. “One of the things Pat and I really committed to was conveying both sides of the debate and the need to provide advice on them in real time when the answer book is just one shade of gray or another.”