II. Authority for and source of the right

The Supreme Court's plurality decision in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646 (1972), is the source of the law of the Fifth Circuit on the existence of a First Amendment qualified reporter's privilege. The law of the circuit depends heavily on the Fifth Circuit's narrow view of the holding in that case.

In Miller v. Transamerican Press, Inc., a libel case and the first opinion to recognize the privilege in the Fifth Circuit, the court construed Branzburg to hold that, where a reporter faces compulsory process issued by a grand jury, the First Amendment provides only a right to be free from process intended to harass. 621 F.2d 721, 725, as modified, 628 F.2d 932 (5th Cir. 1980). The Fifth Circuit distinguished the balance of interests in civil libel cases, however, from that in grand jury proceedings. Id. at 725-26. Based on this distinction, Miller recognized a qualified First Amendment privilege for reporters in libel cases in which the plaintiff seeks to discover the reporter's confidential sources. Id. at 725.

The Fifth Circuit later extended the qualified privilege recognized in Miller to confidential information sought in civil cases generally. In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983). In so doing, the court noted that its recognition of a qualified reporter's privilege in Miller "was dictated by our careful reading of the plurality and concurring opinions in Branzburg." Id.

Finally, when considering a reporter's attempt to invoke the privilege to protect non-confidential information subpoenaed in a criminal trial, the Fifth Circuit disagreed with those circuits that have derived a broad, qualified privilege in criminal cases from Justice Powell's concurrence in Branzburg. United States v. Smith, 135 F.3d 963, 969 (5th Cir. 1998). Rather, the Smith court noted that Branzburg "explicitly rejected a qualified newsreporters' privilege shielding confidential source information from grand juries," id., and that Justice Powell's concurrence merely "had in mind the 'harassment of newsmen.'" Id. (quoting Branzburg, 408 U.S. at 709, 92 S. Ct. at 2671 (Powell, J., concurring)). The Fifth Circuit then equated the interests surrounding grand jury proceedings to those that arise in criminal trials. Id. at 971. As such, the Fifth Circuit in Smith held that no First Amendment qualified privilege exists for non-confidential information sought in criminal cases generally. Id. at 972.