In 1972, the Supreme Court handed the press an apparent resounding defeat in Branzburg v. Hayes, declaring that the Constitution provided reporters no privilege from testifying about their confidential sources. This Note uses previously unpublished materials from the Justices' personal files to illustrate the behind-the-scenes deliberations as the Court shifted in ideology from the propress posture established by Justice Hugo Black in the Pentagon Papers case to the anti-privilege position established by Justice Byron White one year later in Branzburg. It also examines the curious concurring opinion of Justice Lewis Powell in Branzburg and subsequent efforts to craft a qualified reporter's privilege, arguing against further weakening press protection.
Sean W. Kelly,
Black and White and Read All Over: Press Protection After Branzburg,
57 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol57/iss1/5