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\u27s sole comment on the reporter\u27s privilege--Branzburg v. Hayes. \u22The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter,\u22 Judge Sentelle wrote for the three-judge panel on 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 amici 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\u27s opinion rejected any constitutional privilege in this situation, Justice Powell\u27s 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 \u22least common denominator\u22 between the views of the majority and the dissenters, Justice Powell\u27s opinion should control, the reporters had submitted. The reporter\u27s argument was certainly not a new one; numerous courts and commentators had interpreted Branzburg in the same manner. The Third, Fourth, Fifth, and Ninth Circuit Courts of Appeals all have pronounced Justice White\u27s opinion to be a mere \u22plurality.\u22 And Justice Stewart, the chief dissenter in Branzburg, later declared that the case was decided by \u22a vote of four a half to four and a half.\u22 Some courts and commentators, moreover, have concluded that Branzburg was a five to four victory for the press, with Justice Powell\u27s concurrence plus the four dissenters actually creating a qualified reporter\u27s privilege--the exact holding Justice White\u27s opinion rejected. As Professor Rodney Smolla surmissed, \u22[t]he important point of the story [was] that a short concurring opinion by a Justice who actually joined the opinion of the Court in Branzburg in effect superseded the majority opinion and became the prevailing law of the land.\u22 The D.C. Circuit, however, would have none of it. Writing with an air of perplexity in response to the reporters\u27 argument, the panel easily dismissed Justice Powell\u27s concurrence as mere surplusage: \u22Justice White\u27s opinion is not a plurality opinion of four justices joined by a separate Justice Powell to create a majority, it is an opinion of the majority of the Court. As such it is authoritative precedent. It says what it says. It rejects the privilege asserted by appellants.... In any event, whatever Justice Powell specifically intended, he joined the majority.\u22 Scanning the D.C. Circuit\u27s decision on my way to teach Branzburg to my Media Law Seminar, I was surprised by the panel\u27s surety that White\u27s opinion should be treated as a true majority. What exactly made the D.C. Circuit so confident of Justice Powell\u27s acquiescence in Justice White\u27s reasoning, particularly when Powell\u27s separate writing seemed to contradict it? If White\u27s opinion were treated as a plurality, when Powell\u27s concurrence would be the law. So why such faith that the White opinion governs
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