Floyd Abrams loses another one: No privilege for reporters’ phone records

Originally posted 2006-08-07 11:39:03. Republished by Blog Post Promoter

We’ve never been big fans of the “press shield,” and I say that because I like the First Amendment. I just wish Floyd Abrams would keep his hands off it.  Now the Second Circuit court of Appeals has once again rebuffed a press attempt to shield information sought by the government in connection with a federal criminal investigation — where the criminals may have been reporters tipping off supporters of terrorists of an impending raid:

A federal grand jury in Chicago is investigating how two Times reporters obtained information about the government’s imminent plans to freeze the assets and/or search the offices of Holy Land Foundation (”HLF”) and Global Relief Foundation (”GRF”) on December 4 and 14, 2001, respectively, and why the reporters conveyed that information to HLF and GRF by seeking comment from them ahead of the search. Both entities were suspected of raising funds for terrorist activities. The government alleges that, “[i]n both cases, the investigations-as well as the safety of FBI agents participating in the actions-were compromised when representatives of HLF and GRF were contacted prior to the searches by New York Times reporters Philip Shenon and Judith Miller, respectively, who advised of imminent adverse action by the government.

The court summarizes the factual and procedural setting and its holding:

After the attacks on the World Trade Center and the Pentagon on September 11, 2001, the federal government launched or intensified investigations into the funding of terrorist activities by organizations raising money in the United States. In the course of those investigations, the government developed a plan to freeze the assets and/or search the premises of two foundations. Two New York Times reporters learned of these plans, and, on the eve of each of the government’s actions, called each foundation for comment on the upcoming government freeze and/or searches.

The government, believing 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, began a grand jury investigation into the disclosure of its plans regarding the foundations. It sought the cooperation of the Times and its reporters, including access to the Times’ phone records. Cooperation was refused, and the government threatened to obtain the phone records from third party providers of phone services. The Times then brought the present action seeking a declaratory judgment that phone records of its reporters in the hands of third party telephone providers are shielded from a grand jury subpoena by reporter’s privileges protecting the identity of confidential sources arising out of both the common law and the First Amendment.

Although dismissing two of the Times’ claims, Judge Sweet granted the Times’ motion for summary judgment on its claims that disclosure of the records was barred by both a common law and a First Amendment reporter’s privilege. He further held that, although the privileges were qualified, the government had not offered evidence sufficient to overcome them.

We vacate and remand. We hold first that whatever rights a newspaper or reporter has to refuse disclosure in response to a subpoena extends to the newspaper’s or reporter’s telephone records in the possession of a third party provider. We next hold that we need not decide whether a common law privilege exists because any such privilege would be overcome as a matter of law on the present facts. Given that holding, we also hold that no First Amendment protection is available to the Times on these facts in light of the Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972).

Read the whole opinion in The New York Times Co. v. Gonzales here.

By Ron Coleman

I write this blog.