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The phone records of New York Times reporters are not protected by the First Amendment or a common law privilege from a subpoena issued by a Chicago grand jury, the U.S. Court of Appeals for the Second Circuit ruled yesterday. A divided panel declined to decide the issue of whether a common law privilege exists for reporters’ phone records, but said that “any such privilege would be overcome on the present facts” in The New York Times Co. v. Gonzalez, 05-2639. The decision will be published Monday. And given that holding, Judge Ralph Winter wrote for the majority, “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).” Judge Winter was joined by Judge Amalya Kearse. Judge Robert Sack issued a lengthy dissent. Times reporters Judith Miller and Philip Shenon, respectively, learned of impending government searches of The Holy Land Foundation and the Global Relief Foundation that were held on Dec. 4 and Dec. 14, 2001. The Times called the foundations for comment on the eve of the searches, and, according to the government, thereby jeopardized the safety of federal officers and compromised the searches, which were being conducted as part of a probe into the funding of terrorist activities. Patrick J. Fitzgerald, the U.S. attorney for the Northern District of Illinois, sought, but was denied, cooperation from the Times on obtaining the phone records. He then threatened to have the grand jury issue a subpoena to third-party providers of phone services to the reporters. Southern District Judge Robert W. Sweet granted summary judgment for the Times, finding that the disclosure of the records was barred by both First Amendment and common law privileges. And even if the privileges were qualified, and Judge Sweet found they were, he said, the government had not presented enough evidence to overcome them. At the circuit, Judge Winter said first that Judge Sweet did not abuse his discretion by concluding he could exercise jurisdiction over the action. Judge Winter then said the circuit agreed with Judge Sweet that any such privilege under Federal Rule of Evidence 501 would only be qualified, not absolute. But after “substantially” adopting Judge Sweet’s reasoning on that point, the majority parted company with him. Crucial evidence The grand jury, Judge Winter said, “has serious law enforcement concerns as the goal of its investigation,” including a “compelling interest in maintaining the secrecy of imminent asset freezes or searches lest the targets be informed and spirit away those assets or incriminating evidence.” He continued, “At stake in the present investigation, therefore, is not only the important principle of secrecy regarding imminent law enforcement actions but also a set of facts � informing the targets of those impending actions � that may constitute a serious obstruction of justice.” The reporters’ actions here, he said, “are central to (and probably caused) the grand jury’s investigation,” adding that there “is simply no substitute for the evidence they have.” The Times had argued that such subpoenas are, by definition, overly broad. But Judge Winter said that “the only reasonable unavailed-of alternative that would mitigate the overbreadth of the threatened subpoena is the cooperation of the reporters and the Times.” And while the court understood the Times’ position on protecting the confidentiality of sources, it was unpersuaded because the government “having unsuccessfully sought the Times cooperation, cannot be charged with having issued an unnecessarily broad subpoena.” He added, “No grand jury can make an informed decision to pursue the investigation further, much less to indict or not to indict, without the reporters’ evidence. It is therefore not privileged.” The majority was careful to note that its holding applied only to the facts before them � “namely the disclosures of upcoming asset freezes/searches and informing targets of them.” Judge Winter said, “We see no danger to a free press in so holding. Learning of imminent law enforcement asset freezes/searches and informing targets of them is not an activity essential, or even common, to journalism.” In Branzburg, the governing precedent on the issue, the judge said, the U.S. Supreme Court ruled 5-4 that there was not a reporters’ privilege to resist testifying before a grand jury about activity the reporters witnessed pursuant to a promise of confidentiality. Nothing in Branzburg, Judge Winter said, “calls for preventing the present grand jury from accessing information concerning the identity of the reporters’ source(s).” An ‘ubiquitous’ privilege In dissent, Judge Sack said he thought that a federal common law privilege has developed over 34 years of case law and legislative action around the country. “It is palpable; it is ubiquitous: it is widely relied upon; it is an integral part of the way in which the American public is kept informed and therefore of the American democratic process,” he said. Judge Sack said his disagreement with the majority opinion “comes down to this: I do not think that ‘whatever standard is used, the privilege has been overcome as a matter of law on the facts before us.’” Judge Sack did not agree with his peers that the government had shown it has exhausted every means of obtaining the information before seeking to subpoena the records. He said it offered “no evidence, other than the conclusory assertions of its own agents, that it has sought to discover this information from anybody other than the reporters,” he said. Mr. Fitzgerald, Special Assistant U.S. Attorney James P. Fleissner and Assistant U.S. Attorneys Debra Riggs Bonamici and Daniel W. Gillogly represented the government. A spokesperson for Mr. Fitzgerald declined comment. Floyd Abrams, Susan Buckley and Brian Markley of Cahill Gordon & Reindel, along with George Freeman, of counsel to the Times, represented the newspaper and its reporters. Mark Hamblett can be reached at [email protected]

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