By Dan Kennedy • The press, politics, technology, culture and other passions

Branzburg v. Hayes v. The New York Times

You may not like a federal appeals court’s decision that New York Times reporter James Risen must testify in a CIA leak case. I don’t. But it’s Branzburg v. Hayes, straight up. It’s unimaginable that this would have gone the other way.

And keep in mind that even if we had a federal shield law, there would almost certainly be a national-security exception wide enough to drive a truckload of subpoenas through.


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  1. But in that case, Lewis Powell makes clear in his decision that the case has limited applicabillity to others and that considerations about whether or not a particular journalist should testify must be looked at on a case by case basis.

    • Dan Kennedy

      @danpbkane: “Makes clear”? Even Potter Stewart, who wanted stronger protections, called Powell’s decision “enigmatic.” In any case, Judge Richard Posner clarified the Branzburg decision — and Powell — in McKevitt v. Pallasch, and that seems to be the guidance the courts look to today.

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