II. Authority for and source of the right

The Cervantes case was decided shortly after the Supreme Court's decision in Branzburg v. Hayes, 407 U.S. 665 (1972). Cervantes interpreted Branzburg to rule out the privilege in the grand jury context, but leave it an open question in other contexts. Cervantes treated the Branzburg decision as an anti-privilege case. However, the more common modern interpretation is to read Powell's concurrence in Branzburg (which provided the crucial fifth vote and approved of a reporter's privilege in other contexts) to establish a qualified reporter's privilege. Cervantes fails to mention the concurring opinion or any pro-privilege interpretation of Branzburg, except to quote some pro-privilege language from the opinion.