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.


2 thoughts on “Branzburg v. Hayes v. The New York Times

  1. danpbkane

    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.

    1. 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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