Marketos v. American Employers Insurance

I dissent and would hold that a newspaper has a qualified privilege to withhold nonconfidential information in civil litigation.

I begin the analysis with my view of Branzburg v Hayes, 408 US 665; 92 S Ct 2646; 33 L Ed 2d 626 (1972). While an initial reading of Branzburg might lead one to conclude that the Supreme Court found that the press does not possess a First Amendment privilege to refuse to respond to a grand jury subpoena under any circumstances, the concurring opinion of Justice Powell and an analysis of the dissenting opinions conveys an entirely different perspective on the case.…