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Journalists' phone records not protected by privilege

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  1. Protecting Sources and Materials

NEWS MEDIA UPDATE   ·   SECOND CIRCUIT   ·   Confidentiality/Privilege   ·   Aug. 1, 2006


Journalists’ phone records not protected by privilege

  • The Court of Appeals, in overturning a lower court, declined to rule on the existence of a reporter’s privilege but said if it existed, it would be overcome based on the facts of the case.

Aug. 1, 2006  ·   Telephone records of two New York Times reporters must be turned over to a grand jury investigating how the journalists learned of planned law enforcement action against two Islamic charities, a federal appeals court ruled Tuesday.

In a split decision that relied heavily on the U.S. Supreme Court’s 1972 decision in Branzburg v. Hayes, the U.S. Circuit Court of Appeals in Manhattan (2nd Cir.) found no First Amendment protection against releasing the phone records.

“Certainly, nothing in Justice [Byron] White’s opinion or in Justice [Lewis] Powell’s concurrence [in Branzburg] calls for preventing the present grand jury from accessing information concerning the identity of the reporters’ source(s),” Judge Ralph Winter wrote for the majority in the 2-1 decision.

The court also declined to determine whether a common law privilege — derived from decades of court rulings and in the Department of Justice’s own guidelines — exists under the Federal Rules of Evidence. Emphasizing that its ruling was limited to the facts of the case, the court found such a determination irrelevant because any such privilege would be qualified and would be overcome based on the facts of the case.

In dissent, Judge Robert D. Sack said the court should have found that a common law privilege exists and that the standard for overcoming that privilege had not been demonstrated by the government in the evidence it presented to the court.

The decision overruled the February 2005 decision by Judge Robert W. Sweet that a qualified privilege under the First Amendment and under common law protected the telephone records and that prosecutors had failed to overcome the privilege.

In overturning that ruling, the Court of Appeals said that given the facts of this case, the government had a compelling interest in the investigation, had demonstrated the journalists possessed unique and relevant information, and had clearly showed the need for the information.

“At stake in the present investigation, therefore, is not only the important principle of secrecy regarding imminent law enforcement but also a set of facts — informing the targets of those impending actions that may constitute a serious obstruction of justice,” Winter wrote for the majority.

The court also ruled that if a privilege did exist, it would extend to records in the possession of a third-party provider, such as a telephone company.

“So long as the third party plays an ‘integral role’ in reporters’ work, the records of third parties detailing that work are, when sought by the government, covered by the same privileges afforded to the reporters themselves and their personal records,” the majority held.

Sack disagreed with the court’s factual determination that the government met the standards of “necessity” and “exhaustion” necessary to overcome any privilege that might exist. While offering a more nuanced interpretation of the Branzburg decision, Sack noted that the existence of a First Amendment privilege or a common law privilege must be considered separately.

“Of course, Branzburg‘s core holding places serious, if poorly defined, limits on the First Amendment protections that reporters can claim in the grand jury context,” Sack wrote. “But, as the majority implicitly acknowledges by treating them and the common law privilege separately, any limits on the constitutional protection imposed by Branzburg do not necessarily apply to the common law privilege,” Sack wrote.

Sack wrote that even the Department of Justice’s own guidelines for subpoenaing reporters acknowledge the existence of a qualified privilege.

“This qualified privilege has successfully accommodated the legitimate interests of law enforcement and the press for more than thirty years,” Sack wrote.

The standard for overcoming a qualified privilege should involve not only the necessity of the information and its inability to be obtained from other sources, but also a balancing test taking into account the public interest in compelling disclosure versus the public interest in the free flow of information, Sack wrote, citing statutory language in a proposed federal shield law. “The Free Flow of Information Act,” is currently pending in Congress.

In the summer of 2004, Chicago U.S. Attorney Patrick J. Fitzgerald — in an investigation unrelated to his query into who leaked the identity of undercover CIA agent Valerie Plame to reporters — threatened to subpoena the telephone records of Times reporters Philip Shenon and Judith Miller in a Chicago grand jury investigation.

Fitzgerald thinks that government agents leaked plans to raid two Islamic charities — Holy Land Foundation and Global Relief Foundation — suspected of funding terrorists to the Times, and that Shenon and Miller tipped the charities to the raids when they called for comment. Shenon and Miller deny alerting the charities to the raids. The government argued that the investigations and the safety of officers were compromised when representatives of the two organizations were advised of the planned raid.

(New York Times Co. v. Gonzales; Media Counsel: Floyd Abrams, Cahill, Gordon & Reindel LLP, New York)PS

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