Reporters' phone records protected in Islamic charities investigation

• A reporter’s privilege based on the First Amendment and common law protects two journalists’ telephone records from grand jury subpoena, a federal district judge held.

Feb. 25, 2005 — U.S. District Judge Robert W. Sweet of Manhattan ruled yesterday that the telephone records of two New York Times reporters are protected from disclosure to federal prosecutors trying to identify a government leak in the investigation of Islamic charities suspected of aiding terrorists.

Sweet held that the telephone records are protected by a qualified privilege under the First Amendment and under common law, and that prosecutors had failed to overcome the privilege.

“To deny the relief sought by The Times under these circumstances, i.e., without any showing on the part of the government that the sought records are necessary, relevant, material and unavailable from other sources, has the potential to significantly affect the reporting of news based upon information provided by confidential sources,” Sweet wrote.

The sought telephone records spanned weeks in late 2001 and could have identified numerous confidential and non-confidential sources.

Last summer, Chicago U.S. Attorney Patrick J. Fitzgerald, who is also the special prosecutor in the unrelated investigation 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 believes that government agents leaked plans to raid two Islamic charities 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.

It is unclear if subpoenas were actually issued, because both Fitzgerald and the Times‘ telephone company declined to comment, citing grand jury secrecy rules.

In September, the Times filed a lawsuit in federal court in New York against then-Attorney General John Ashcroft to block the subpoenas.

Fitzgerald asked the court to dismiss the case, arguing that any subpoenas were only “hypothetical” because his office and the telephone company had declined to confirm them, and that the case would interfere with the grand jury investigation in the federal court in Chicago. Sweet dismissed both arguments.

Sweet ruled that the U.S. Supreme Court’s 1972 decision in Branzburg v. Hayes and subsequent decisions of the U.S. Court of Appeals in New York (2nd Cir.) recognize a qualified reporter’s privilege under the First Amendment. Citing disagreement among the federal circuits, Sweet declined to follow the recent ruling of the U.S. Court of Appeals in Washington, D.C., in the Plame investigation that no such privilege exists in grand jury proceedings.

Sweet also ruled that a common law privilege exists in the federal courts under the Federal Rules of Evidence and Supreme Court precedent because the privilege has been recognized by 48 states and the District of Columbia. The Washington appellate court was split on the common law privilege issue.

In his 121-page ruling, Sweet also relied on the sworn statements of reporters, a historian and a government attorney on the public benefits of confidential sources to reporting.

The Times reported that its attorney, Floyd Abrams, said that the opinion will help in framing the reporter’s privilege issue for possible Supreme Court review. Fitzgerald is considering whether to appeal, according to a statement reported by Reuters.

(The New York Times Company v. Gonzales, Media Counsel: Floyd Abrams, Cahill, Gordon & Reindel, LLP, New York) — GP

Related stories:

• Federal appeals court upholds reporter subpoenas (02/15/2005)
• Reporters’ phone records subpoenaed (09/10/2004)

Other links:

• SPECIAL REPORT: Reporters and Federal Subpoenas

© 2005 The Reporters Committee for Freedom of the Press

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