Branzburg v. Hayes, 408 U.S. 665 (1972), was a landmark decision of the US Supreme Court invalidating the use of the First Amendment as a defense for reporters summoned to testify before a grand jury.

Writing for the majority, Justice Byron White declared that the petitioners were asking the Court "to grant newsmen a testimonial privilege that other citizens do not enjoy.

He did not overlook the importance of a free press, however, and he established a test, citing Gibson v. Florida Legislative Investigation Comm., for deciding whether a reporter can be compelled to testify before a grand jury.

For such a subpoena to have merit, the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."

While he sided with the majority, Powell emphasized the "limited nature" of the decision when he stated: The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.

A few days after oral argument, and before writing his concurrence, Powell prepared handwritten notes of the court's private conference to decide the disposition of the appeal.

(emphasis in original notes)[4]Powell's opinion has been interpreted by several lower courts as an indication that reportorial privilege exists but was simply not warranted in the specific case of Branzburg.

There is no conceivable interest in confidentiality in the present case.In July 2004, Branzburg was cited as precedent by United States District Court Chief Judge Thomas Hogan in a memorandum opinion denying a motion to quash two grand jury subpoenas issued to reporters.

NBC Washington Bureau Chief Tim Russert and Time magazine reporter Matthew Cooper challenged the subpoenas issued in connection with the leak of the identity of former CIA operative Valerie Plame, citing their First Amendment rights as reason not to reveal their confidential sources.