Divided Appeals Court Holds Subpoena of Phone Company Records of Journalists Does Not Violate Privilege
August 31, 2006
Charles D. "Chuck" Tobin- Washington
Over a strong dissent criticizing the majority for being too deferential to the executive branch, a divided panel of a New York federal appeals court has held the government may subpoena telephone companies for journalists’ phone records that may contain information about confidential sources.
The U.S. Court of Appeal for the Second Circuit, in a 2-1 decision, held that the government overcame the interests of two New York Times reporters in their sources’ confidentiality following the reporters’ calls to organizations, suspected of funding terrorist activities, just before law enforcement officials searched the group’s offices and froze their assets. In an extensive majority opinion, the appellate court in the case, The New York Times Company v. Gonzales, reversed the ruling of a trial court that held the journalists’ privilege outweighed the government’s right to the information from the telephone company.
The case began in September 2004 when the Times brought a lawsuit in federal court seeking a declaration that any grand jury subpoena the government may issue to telephone companies would violate the newspaper’s and the journalists’ rights. The grand jury investigation was launched in Chicago after Times reporters Judith Miller and Philip Shenon in December 2001 contacted two Islamic-affiliated nonprofit entities seeking comment on leaked government information that the organizations were imminent targets of government action. The government searched the organizations and froze their assets the day after the journalists’ calls.
The trial court initially sided with the journalists and held that the subpoena to the telephone companies violated the reporters’ rights to keep their sources confidential. The trial court interpreted Federal Rule of Evidence 501 and subsequent case law as creating a common law qualified reporter’s privilege that can be overcome if the information sought is highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other sources. The trial court then held that the privilege protected the information because the government had not satisfied its burden of proving that the information contained in the phone records was material and unavailable from any other source.
In reversing that ruling, the Second Circuit, in its August 1, 2006, decision by Judge Ralph Winter and joined by Judge Amalya Kearse, did not outright recognize a common law-based privilege. Instead, the court held that any privilege under either the First Amendment or the common law is qualified and can be maintained only if it would not compromise a compelling governmental interest. As to the common law privilege based on the evidence rule – an argument that has recently been pressed by journalists in other high-profile subpoena cases – the court held that the privilege “would be overcome as a matter of law on these facts” and therefore “it is unnecessary ... for us to rule on whether such a privilege exists.”
The appellate court placed great emphasis on the concerns expressed by the government, commenting that “the reporters’ calls endangered the agents executing the searches and alerted the targets, allowing them to take steps mitigating the effect of the freeze and searches.” The court thus found that two compelling interests were raised: (1) the government’s interest in the efficacy and safety of its own investigations; and (2) the government’s interest in preventing obstruction of justice by reporters with the ability to preemptively convey information to targets of searches and asset freezes. The majority downplayed the significance of the reporting before it, stating that “[l]earning of imminent law enforcement asset freezes/searches and informing targets of them is not an activity essential, or even common, to journalism.” The court emphasized that its decision is limited to the facts before it, “namely the disclosures of upcoming asset freezes/searches and informing the targets of them.”
The majority also rejected the Times’ arguments that the subpoena was overbroad and would allow the government access to confidential sources unrelated to the grand jury investigation and that the government had not exhausted non-privileged alternative methods. The court called these arguments “more ironic than persuasive,” finding that the records contain information uniquely critical to the grand jury investigation, and that redaction could shield unrelated sources in the records.
In his dissent, Judge Robert Sack – who represented the press before his appointment to the bench – did not challenge the majority’s belief that the government’s stated interests were compelling. Instead, the dissent focused on the majority’s willingness to accept the government’s bare assertions that the information was necessary for the grand jury and otherwise unattainable. The dissent also criticized the government for giving short shrift to the journalists’ balancing argument, noting that “the government devotes just over six of the sixty-six pages in its brief to rebutting the plaintiff’s assertion that the government has not met the burden it must carry to overcome that privilege.” The dissent expressly contrasted the government’s case here with that in the Washington, D.C. subpoena case last year, where Judith Miller was jailed for declining to reveal the source of the leak of a CIA operative’s identity. There, Judge Sack noted, the government consistently made the courts aware of the grand jury proceedings relevant to the information it sought.
For more information, e-mail Christina LaRosa or Charles D. Tobin at christina.larosa@hklaw.com or charles.tobin@hklaw.com , respectively, or call toll free, 1-888-688-8500.