concurring.
Although I concur in Judge Norris’s opinion, I write separately to emphasize one point and to make an additional one. The point I think bears emphasis in this case is that even if one applies the precise balancing test that the dissent in Branz-burg advocated, the result of that balancing commands disclosure under these circumstances. I reiterate this point because it relates to the fact that this matter is here on a habeas petition, a fact which the plaintiff has ignored in the presentation of this case before the court. Accordingly, the plaintiff must live with the specific federal statutory habeas procedures as well as the judicial gloss thereon. For example, the state court made many important factual findings which are significant to any balancing to be performed. We are now bound by these findings since plaintiff has not argued that any of the eight exceptions found in 28 U.S.C. § 2254(d) apply. Plaintiff has, or at least had, an opportuni*589ty to appeal from the state court’s decision on these issues unburdened by the strictures which surround habeas proceedings.
Also and perhaps of more significance is that I retain considerable doubt as to whether this case presents a fact situation which is even within the purview of federal habeas review. 28 U.S.C. § 2254 reads in pertinent part: “[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody ... only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” Generally, in habeas cases the constitutional right is clearly established, and the only question is whether the person in custody falls within the protection of the defined right. Such is not the case here. Branzburg holds there is no constitutional protection. The Court stated:
Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.
Branzburg, 408 U.S. at 689-90, 92 S.Ct. at 2661 (emphasis added). The majority goes on to state: “We are unwilling to embark the judiciary on a long and difficult journey to such an uncertain destination. The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order.” Id. at 703-04, 92 S.Ct. at 2668. It is conceivable that the grand jury “privilege” which newspersons have, at least that stemming from Branzburg, is nothing more than an acknowledgement of the fact that the judiciary can control abuses in an instrumentality under its control, i.e., the grand jury. Support for this proposition is found in the last paragraph of the majority opinion where it is stated: “Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash.” Id. at 707-08, 92 S.Ct. at 2670 (emphasis added).
As indicated, supra, the plaintiffs can seek to pursue their state substantive appeal to the United States Supreme Court. There is a real question here as to whether they seek review of substantive issues decided adversely to them by the Michigan Supreme Court under the guise of a habeas petition. This they cannot do. Monk v. Blackburn, 605 F.2d 837 (5th Cir.1979), cert. denied, 445 U.S. 933, 100 S.Ct. 1326, 63 L.Ed.2d 768 (1980).