No Easy Answers
Tuesday, August 01, 2006
2nd Circuit Reversal of Reporter Privilege
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2005
4 (Argued: February 13, 2006 Decided: August 1, 2006)
5 Docket No. 05-2639-cv
6 ---------------------------------
7 THE NEW YORK TIMES COMPANY,
8 Plaintiff-Appellee,
9 - v. -
10 ALBERTO GONZALES, in his official capacity as Attorney General of
11 the United States, and THE UNITED STATES OF AMERICA,
12 Defendants-Appellants.
13 ---------------------------------
14 B e f o r e: KEARSE, WINTER, and SACK, Circuit Judges.
15 Appeal from a grant of summary judgment to a newspaper on
16 its claim for a declaratory judgment that its reporters'
17 telephone records are privileged from a potential grand jury
18 subpoena. We vacate and remand.
19 Judge Sack dissents in a separate opinion.
20 JAMES P. FLEISSNER, Special Assistant United
21 States Attorney (Patrick J. Fitzgerald,
22 United States Attorney for the Northern
23 District of Illinois, Debra Riggs Bonamici,
24 Daniel W. Gillogly, Assistant United States
25 Attorneys, Chicago, Illinois, on the brief),
26 for Defendants-Appellants.
27
28 FLOYD ABRAMS, Cahill Gordon & Reindel LLP,
29 New York, New York (Susan Buckley, Brian
1
1 Markley, Cahill Gordon & Reindel, New York,
2 New York, on the brief; George Freeman, New
3 York Times Company, New York, New York, of
4 counsel), for Plaintiff-Appellee.
5
6
7 WINTER, Circuit Judge:
8 After the attacks on the World Trade Center and the Pentagon
9 on September 11, 2001, the federal government launched or
10 intensified investigations into the funding of terrorist
11 activities by organizations raising money in the United States.
12 In the course of those investigations, the government developed a
13 plan to freeze the assets and/or search the premises of two
14 foundations. Two New York Times reporters learned of these
15 plans, and, on the eve of each of the government's actions,
16 called each foundation for comment on the upcoming government
17 freeze and/or searches.
18 The government, believing that the reporters' calls
19 endangered the agents executing the searches and alerted the
20 targets, allowing them to take steps mitigating the effect of the
21 freeze and searches, began a grand jury investigation into the
22 disclosure of its plans regarding the foundations. It sought the
23 cooperation of the Times and its reporters, including access to
24 the Times' phone records. Cooperation was refused, and the
25 government threatened to obtain the phone records from third
26 party providers of phone services. The Times then brought the
27 present action seeking a declaratory judgment that phone records
2
1 of its reporters in the hands of third party telephone providers
2 are shielded from a grand jury subpoena by reporter's privileges
3 protecting the identity of confidential sources arising out of
4 both the common law and the First Amendment.
Although dismissing two of the Times' claims,1 Judge Sweet
5
6 granted the Times' motion for summary judgment on its claims that
7 disclosure of the records was barred by both a common law and a
8 First Amendment reporter's privilege. He further held that,
9 although the privileges were qualified, the government had not
10 offered evidence sufficient to overcome them.
11 We vacate and remand. We hold first that whatever rights a
12 newspaper or reporter has to refuse disclosure in response to a
13 subpoena extends to the newspaper's or reporter's telephone
14 records in the possession of a third party provider. We next
15 hold that we need not decide whether a common law privilege
16 exists because any such privilege would be overcome as a matter
17 of law on the present facts. Given that holding, we also hold
18 that no First Amendment protection is available to the Times on
19 these facts in light of the Supreme Court's decision in Branzburg
20 v. Hayes, 408 U.S. 665 (1972).
21 BACKGROUND
22 A federal grand jury in Chicago is investigating how two
23 Times reporters obtained information about the government's
24 imminent plans to freeze the assets and/or search the offices of
3
1 Holy Land Foundation ("HLF") and Global Relief Foundation ("GRF")
2 on December 4 and 14, 2001, respectively, and why the reporters
3 conveyed that information to HLF and GRF by seeking comment from
4 them ahead of the search. Both entities were suspected of
5 raising funds for terrorist activities. The government alleges
6 that, "[i]n both cases, the investigations -- as well as the
7 safety of FBI agents participating in the actions -- were
8 compromised when representatives of HLF and GRF were contacted
9 prior to the searches by New York Times reporters Philip Shenon
10 and Judith Miller, respectively, who advised of imminent adverse
11 action by the government." The government maintains that none of
12 its agents were authorized to disclose information regarding
13 plans to block assets or to search the premises of HLF or GRF
14 prior to the execution of those actions. The unauthorized
15 disclosures of such impending law enforcement actions by a
16 government agent can constitute a violation of federal criminal
17 law, e.g., 18 U.S.C. § 793(d) (prohibiting communication of
18 national defense information to persons not entitled to receive
19 it), including the felony of obstruction of justice, 18 U.S.C. §
20 1503(a).
21 On October 1, 2001, the Times published a story by Miller
22 and another reporter that the government was considering adding
23 GRF to a list of organizations with suspected ties to terrorism.
24 Miller has acknowledged that this information was given to her by
4
1 "confidential sources." On December 3, 2001, Miller "telephoned
2 an HLF representative seeking comment on the government's intent
3 to block HLF's assets." The following day, the government
4 searched the HLF offices. The government contends that Miller's
5 call alerted HLF to the impending search and led to actions
6 reducing the effectiveness of the search. The Times also put an
7 article by Miller about the search on the Times' website and in
8 late-edition papers on December 3, 2001, the day before the
9 search. The article claimed to be based in part on information
10 from confidential sources. The Times also published a post-
11 search article by Miller in the December 4 print edition.
12 In a similar occurrence, on December 13, 2001, Shenon
13 "contact[ed] GRF for the purposes of seeking comment on the
14 government's apparent intent to freeze its assets." The
15 following day, the government searched GRF offices. The
16 government has since stated that "GRF reacted with alarm to the
17 tip from [Shenon], and took certain action in advance of the FBI
18 search." It has claimed that "when federal agents entered the
19 premises to conduct the search, the persons present at Global
20 Relief Foundation were expecting them and already had a
21 significant opportunity to remove items." Shenon reported the
22 search of the GRF offices in an article published on December 15,
23 2001, the day after the government's search.
24 After learning that the government's plans to take action
5
1 against GRF had been leaked, Patrick J. Fitzgerald, the United
2 States Attorney for the Northern District of Illinois, opened an
3 investigation to identify the government employee(s) who
4 disclosed the information to the reporter(s) about the asset
5 freeze/search. On August 7, 2002, Fitzgerald wrote to the Times
6 and requested a voluntary interview with Shenon and voluntary
7 production of his telephone records from September 24 to October
8 2, 2001, and December 7 to 15, 2001. Fitzgerald's letter stated
9 that "[i]t has been conclusively established that Global Relief
10 Foundation learned of the search from reporter Philip Shenon of
11 the New York Times"; ^2 the requested interview and records were
12 therefore essential to investigating "leaks which may strongly
13 compromise national security and thwart investigations into
14 terrorist fundraising." Anticipating the Times' response, the
15 letter argued in strong language that the First Amendment did not
16 protect the "potentially criminal conduct" of Shenon's source or
17 Shenon's "decision . . . to provide a tip to the subject of a
18 terrorist fundraising inquiry." The Times refused the request
19 for cooperation on the ground that the First Amendment provides
20 protection against a newspaper "having to divulge confidential
21 source information to the Government."
22 On July 12, 2004, Fitzgerald wrote again to the Times and
23 renewed the request for an interview with Shenon and the
24 production of his telephone records. He enlarged the request to
6
1 include an interview with Miller and the production of her
2 telephone records from September 24 to October 2, 2001, November
3 30 to December 4, 2001, and December 7 to 15, 2001. Fitzgerald
4 stated that the investigation involved "extraordinary
5 circumstances" and that any refusal by the Times to provide the
6 pertinent information would force him to seek the telephone
7 records from third parties, i.e., the Times' telephone service
8 providers. The Times again refused the request and questioned
9 whether the government had exhausted all alternative sources.
10 The Times argued that turning over the reporters' telephone
11 records would give the government access to all the reporters'
12 sources during the time periods indicated, not just those
13 relating to the government's investigation. The Times believed
14 that such a request "would be a fishing expedition well beyond
15 any permissible bounds."
16 The Times also contacted its telephone service providers and
17 requested that they notify the Times if they received any demand
18 from the government to turn over the disputed records, giving the
19 Times an opportunity to challenge the government's action. The
20 telephone service providers declined to agree to that course of
21 action.
22 Fitzgerald responded with a letter stating that he had
23 "exhausted all reasonable alternative means" of obtaining the
24 information but that he was not obligated to disclose those steps
7
1 to the Times nor did he "intend to engage in debate by letter."
2 Fitzgerald, however, invited the Times to contact him if it
3 "wish[ed] to have a serious conversation . . . to discuss
4 cooperating in this matter."
5 On August 4, 2004, attorneys Floyd Abrams and Kenneth Starr
6 wrote a letter on behalf of the Times to James Comey, then the
7 Deputy Attorney General. Abrams and Starr requested an
8 opportunity to discuss Fitzgerald's efforts to obtain the
9 telephone records of Shenon and Miller and reaffirmed that the
10 Times believed that it was not required to divulge the disputed
11 records. The letter also requested that, if the telephone
12 records were sought from the Times' third party service
13 providers, the Times reporters be given the opportunity to
14 "assert their constitutional right to maintain the
15 confidentiality of their sources . . . in a court of law." On
16 September 23, 2004, Comey rejected the request for a meeting,
17 saying: "Having diligently pursued all reasonable alternatives
18 out of regard for First Amendment concerns, and having adhered
19 scrupulously to Department policy, including a thorough review of
20 Mr. Fitzgerald's request within the Department of Justice, we are
21 now obliged to proceed" with efforts to obtain the telephone
22 records from a third party. Comey noted that the government did
23 not "have an obligation to afford the New York Times an
24 opportunity to challenge the obtaining of telephone records from
8
1 a third party prior to [its] review of the records, especially in
2 investigations in which the entity whose records are being
3 subpoenaed chooses not to cooperate with the investigation."
4 Five days later, the Times filed the present action in the
5 Southern District of New York. The counts of the complaint
6 pertinent to this appeal sought a declaratory judgment that
7 reporters' privileges against compelled disclosure of
8 confidential sources prevented enforcement of a subpoena for the
9 reporters' telephone records in the possession of third parties.
10 The claimed privileges were derived from the federal common law
11 and the First Amendment.
12 On October 27, 2004, the government moved to dismiss the
13 complaint on the ground that plaintiffs have an adequate remedy
14 under Federal Rule of Criminal Procedure 17. The Times opposed
15 the government's motion to dismiss and moved for summary
16 judgment. The government then filed a cross motion for summary
17 judgment.
18 Judge Sweet denied the government's motion to dismiss. New
19 York Times Co. v. Gonzales, 382 F. Supp. 2d 457 (S.D.N.Y. 2005).
20 He concluded that he had discretion to entertain the action for
21 declaratory judgment and had no reason to decline to exercise
22 that discretion, especially because a motion to quash would not
23 provide the Times the same relief provided by a declaratory
24 judgment. Id. at 475-79. Judge Sweet granted the Times' motion
9
1 for summary judgment on its claims that Shenon's and Miller's
2 telephone records were protected against compelled disclosure of
3 confidential sources by two qualified privileges. Id. at 492,
4 508. One privilege was derived from the federal common law
5 pursuant to Federal Rule of Evidence 501; the other source was
6 the First Amendment. Id. at 490-92, 501-08, 510-13. The
7 government appealed.
8 DISCUSSION
9 a) The Declaratory Judgment Act
10 Under the Declaratory Judgment Act, a district court "may
11 declare the rights and other legal relations of any interested
12 party seeking such declaration, whether or not further relief is
13 or could be sought." 28 U.S.C. § 2201(a). A district court may
14 issue a declaratory judgment only in "a case of actual
15 controversy within its jurisdiction." Id. The Act does not
16 require the courts to issue a declaratory judgment. Rather, it
17 "'confers a discretion on the courts rather than an absolute
18 right upon the litigant.'" Wilton v. Seven Falls Co., 515 U.S.
19 277, 287 (1995) (citing Public Serv. Comm'n of Utah v. Wycoff
20 Co., 344 U.S. 237, 241 (1952)).
21 The government argues that the district court should not
22 have exercised jurisdiction over this action for two reasons:
23 (i) because there is a "special statutory proceeding" for the
24 Times' claim under Federal Rule of Criminal Procedure 17(c)'s
10
1 provisions for quashing a subpoena, a declaratory judgment is
2 unnecessary, and, (ii) because the district judge improperly
3 balanced the factors guiding the exercise of discretion.
4 We review the underlying legal determination that Rule 17(c)
5 is not a special statutory proceeding precluding a declaratory
6 judgment action de novo, and we review the decision to entertain
7 such an action for abuse of discretion. Duane Reade, Inc. v. St.
8 Paul Fire & Marine Ins. Co., 411 F.3d 384, 388-89 (2d Cir. 2005).
9 1. Special Statutory Proceeding
10 Federal Rule of Civil Procedure 57 states that "[t]he
11 existence of another adequate remedy does not preclude a judgment
12 for declaratory relief in cases where it is appropriate."
13 However, the Advisory Committee's Note purports to qualify this
14 Rule by stating that a "declaration may not be rendered if a
15 special statutory proceeding has been provided for the
16 adjudication of some special type of case, but general ordinary
17 or extraordinary legal remedies, whether regulated by statute or
18 not, are not deemed special statutory proceedings." Fed. R. Civ.
19 P. 57 advisory committee's note.
20 Rule 17(c)(2) permits a court to quash or modify a subpoena
21 that orders a witness to produce documents and other potential
22 evidence, when "compliance would be unreasonable or oppressive."
23 Fed. R. Crim. P. 17(c)(2). Although Rule 17 itself is not a
24 statute, it is referenced by 18 U.S.C. § 3484. The government
11
1 contends that Rule 17(c) is a special statutory proceeding within
2 the meaning of the Advisory Committee's Note and that its
3 existence therefore renders declaratory relief inappropriate.
4 It further notes that there is only one decision in which a
5 plaintiff attempted to challenge federal grand jury subpoenas
6 through a declaratory judgment action, Doe v. Harris, 696 F.2d
7 109 (D.C. Cir. 1982), and that did not entail a ruling on whether
8 the complaint stated a valid claim for relief. Id. at 112.
9 However, since the enactment of the Declaratory Judgment
10 Act, only a handful of categories of cases have been recognized
11 as "special statutory proceedings" for purposes of the Advisory
12 Committee's Note. These include: (i) petitions for habeas
13 corpus and motions to vacate criminal sentences, e.g., Clausell
14 v. Turner, 295 F. Supp. 533, 536 (S.D.N.Y. 1969); (ii)
15 proceedings under the Civil Rights Act of 1964, e.g., Katzenbach
16 v. McClung, 379 U.S. 294, 296 (1964); and (iii) certain
17 administrative proceedings, e.g., Deere & Co. v. Van Natta, 660
18 F. Supp. 433, 436 (M.D.N.C. 1986) (involving a decision on patent
19 validity before U.S. patent examiners). Each of these categories
20 involved procedures and remedies specifically tailored to a
21 limited subset of cases, usually one brought under a particular
22 statute. Rule 17(c) is not of such limited applicability.
23 Rather, it applies to all federal criminal cases. Were we to
24 adopt the government's theory and treat a motion to quash under
12
1 Rule 17(c) as a "special statutory proceeding," we would
2 establish a precedent potentially qualifying a substantial number
3 of federal rules of criminal and civil procedure as special
4 statutory proceedings and thereby severely limit the availability
5 of declaratory relief. Therefore, we hold that the existence of
6 Rule 17(c) does not preclude per se a declaratory judgment.
7 2. Application of the Dow Jones Factors
8 In Dow Jones & Co., Inc. v. Harrods Ltd., 346 F.3d 357, 359-
9 60 (2d Cir. 2003), we outlined five factors to be considered
10 before a court entertains a declaratory judgment action: (i)
11 "whether the judgment will serve a useful purpose in clarifying
12 or settling the legal issues involved"; (ii) "whether a judgment
13 would finalize the controversy and offer relief from
14 uncertainty"; (iii) "whether the proposed remedy is being used
15 merely for 'procedural fencing' or a 'race to res judicata'";
16 (iv) "whether the use of a declaratory judgment would increase
17 friction between sovereign legal systems or improperly encroach
18 on the domain of a state or foreign court"; and (v) "whether
19 there is a better or more effective remedy." Id. (citations
20 omitted).
21 We review a district court's application of the Dow Jones
22 factors only for abuse of discretion. Duane Reade, 411 F.3d at
23 388. The district court did not abuse its discretion in
24 entertaining the present action. Factors (i) and (ii) favor a
13
1 decision on the merits. There is a substantial chance that the
2 phone records, although they will not reveal the content of
3 conversations or the existence of other contacts, will provide
4 reasons to focus on some individuals as being the source(s). If
5 so, the Times may have no chance to assert its claim of
6 privileges as to the source(s)' identity. It would therefore be
7 "useful" to clarify the existence of the asserted privileges now.
8 Dow Jones, 346 F.3d at 359. Moreover, a declaratory judgment
9 will "finalize the controversy" over the existence of any
10 privilege on the present facts and provide "relief from
11 uncertainty" in that regard. Id. For similar reasons, factor
12 (iii) also calls for a decision on the merits. Seeking a final
13 resolution of the privilege issue is surely more than "procedural
14 fencing" on the facts of this case. Id. at 359-60. Factor (iv)
15 is inapplicable on its face.
16 As for factor (v), a motion to quash under Rule 17(c) would
17 not offer the Times the same relief as a declaratory action under
18 the circumstances of this case. First, a motion to quash is not
19 available if the subpoena has not been issued. 2 Charles Alan
20 Wright, Federal Practice and Procedure § 275 (3d ed. 2000)
21 (citing In re Grand Jury Investigation (General Motors Corp.), 31
22 F.R.D. 1 (S.D.N.Y. 1962)). Second, it is unknown whether
23 subpoenas have been issued to telephone carriers or not, and if
24 so, whether the carriers have already complied. It is also
14
1 unclear whether, when a subpoena has been issued to a third party
2 and the third party has complied, a motion to quash is still a
3 viable path to a remedy. See Fed. R. Crim. P. 17(c) (not
4 addressing whether a subpoena may be quashed after it is complied
5 with).
6 The district court, therefore, did not abuse its discretion
7 in concluding that it should exercise jurisdiction over this
8 action.
9 b) Reporters' Privilege
10 1. Subpoenas to Third Party Providers
11 The threatened subpoena seeks the reporters' telephone
12 records from a third party provider. The government argues that,
13 whatever privileges the reporters may themselves have, they
14 cannot defeat a subpoena of third party telephone records. Given
15 a dispositive precedent of this court, we cannot agree.
16 In Local 1814, International Longshoremen's Ass'n, AFL-CIO
17 v. Waterfront Commission, 667 F.2d 267 (2d Cir. 1981), a union
18 sought to enjoin a subpoena issued to a third party by the
19 Waterfront Commission. Id. at 269. In the course of
20 investigating whether longshoremen had been coerced into
21 authorizing payroll deductions to the union's political action
22 committee, the Commission issued a subpoena to the third party
23 that administered the union's payroll deductions. Id. The union
24 challenged the subpoena, and we concluded that the union's First
15
1 Amendment rights were implicated by the subpoena to the third
2 party. Id. at 271. We stated, "First Amendment rights are
3 implicated whenever government seeks from third parties records
4 of actions that play an integral part in facilitating an
5 association's normal arrangements for obtaining members or
6 contributions." Id. Because the payroll deduction system was an
7 integral part of the fund's operations, the records of the third
8 party were "entitled to the same protection available to the
9 records of the [union]." Id.
10 Under this standard, so long as the third party plays an
11 "integral role" in reporters' work, the records of third parties
12 detailing that work are, when sought by the government, covered
13 by the same privileges afforded to the reporters themselves and
14 their personal records. Without question, the telephone is an
15 essential tool of modern journalism and plays an integral role in
16 the collection of information by reporters. ^3 Under
17 Longshoremen's, therefore, any common law or First Amendment
18 protection that protects the reporters also protects their third
19 party telephone records sought by the government.
20 2. Common Law Privilege
21 The Times claims that a common law privilege protects
22 against disclosure of the identity of the confidential source(s)
23 who informed its reporters of the imminent actions against HLF
24 and GRF. The issue of the existence and breadth of a reporter's
16
1 common law privilege is before us in two contexts.
2 It arises, first, in the context of the Times' claim with
3 regard to the third party providers' phone records, as noted
4 above. Although a record of a phone call does not disclose
5 anything about the reason for the call, the topics discussed, or
6 other meetings between the parties to the calls, it is a first
7 step of an inquiry into the identity of the reporters' source(s)
8 of information regarding the HLF and GRF asset freezes/searches.
9 The identity of the source(s) is at the heart of the claimed
10 privilege that necessitates a declaratory judgement.
11 The privilege issue arises, second, in a more subtle way.
12 The Times also argues that subpoenas to third party providers are
13 overbroad because they might disclose the reporters' sources on
14 matters not relevant to the investigation at hand. This
15 overbreadth argument turns on the validity of the subsidiary
16 claim that the government has not exhausted alternative sources
17 that avoid the disclosure of sensitive information on irrelevant
18 sources and do not implicate privileged material. Because the
19 reporters are the only reasonable alternative source that can
20 provide reliable information allowing irrelevant material to be
21 excluded from the subpoena, the privilege of the reporters to
22 refuse to cooperate is at stake in this respect also. That is to
23 say, the overbreadth argument poses the question of whether the
24 reporters themselves are unprivileged alternative sources of
17
1 information who can be compelled to identify the informant(s)
2 relevant to the present investigation.
3 Using the method of analysis set out in Jaffee v. Redmond,
4 518 U.S. 1 (1996), in which the Supreme Court recognized a
5 privilege between a psychotherapist and a patient and applied it
6 to social workers and their patients, the district court
7 concluded that a qualified reporter's privilege exists under
8 Federal Rule of Evidence 501. New York Times Co., 382 F. Supp.
9 2d at 492-508. After finding that such a privilege exists, the
10 district court held that any such privilege would be qualified
11 rather than absolute and that it would not be overcome on the
12 facts of the present case. Id. at 497. We agree that any such
13 privilege would be a qualified one, but we also conclude that it
14 would be overcome as a matter of law on these facts. It is
15 unnecessary, therefore, for us to rule on whether such a
16 privilege exists under Rule 501.
17 A. Any Common Law Privilege Would Be Qualified
18 The district court's conclusion that any common law
19 privilege derived from Federal Rule of Evidence 501 would be
20 qualified rather than absolute was based on several factors.
21 While the court adopted the view that the lack of protection
22 afforded by the absence of any privilege would impact negatively
23 on important private and public interests but yield only a
24 "modest evidentiary benefit," it also recognized that in
18
1 particular circumstances "compelling public interests" might
2 require that the privilege be overcome. 382 F. Supp. 2d at 501.
3 This recognition acknowledges that the government has a highly
4 compelling and legitimate interest in preventing disclosure of
5 some matters and that that interest would be seriously
6 compromised if the press became a conduit protected by an
7 absolute privilege through which individuals might covertly cause
8 disclosure.
9 In that regard, the district court noted that every federal
10 court that had recognized a reporter's privilege under Federal
11 Rule of Evidence 501 had concluded that any such privilege was a
12 qualified one, 382 F. Supp. 2d at 501, and that most states
13 affording such a privilege also provided only qualified
14 protection, id. at 502-03. We agree with, and substantially
15 adopt, the district court's reasoning on this point.
16 B. Privilege Overcome
17 We need not determine the precise contours of any such
18 qualified privilege. Various formulations have included: (i) a
19 test requiring a showing of "clear relevance," United States v.
20 Cutler, 6 F.3d 67, 74 (2d Cir. 1993), (ii) one requiring that
21 the government must (1) show that there is
22 probable cause to believe that the newsman
23 has information that is clearly relevant to a
24 specific probable violation of law; (2)
25 demonstrate that the information sought
26 cannot be obtained by alternative means less
27 destructive of First Amendment rights; and
28 (3) demonstrate a compelling and overriding
19
1 interest in the information,
2
3 Branzburg, 408 U.S. at 743 (Stewart, J., dissenting); or (iii) a
4 test requiring a showing that the information sought is "highly
5 material and relevant, necessary or critical to the maintenance
6 of the claim, and not obtainable from other available sources,"
7 In re Petroleum Prods. Antitrust Litig., 680 F.2d 5, 7 (2d Cir.
8 1982) (citations omitted). The district court selected (iii) as
9 the governing formula and concluded that the government had not
10 shown either materiality or the unavailability elsewhere of the
11 same information. 382 F. Supp. 2d at 510-13. We disagree. We
12 believe that, whatever standard is used, the privilege has been
13 overcome as a matter of law on the facts before us.
14 The grand jury investigation here is focused on: (i) the
15 unauthorized disclosures of imminent plans of federal law
16 enforcement to seize assets and/or execute searches of two
17 organizations under investigation for funding terrorists,
18 followed by (ii) communications to these organizations that had
19 the effect of alerting them to those plans, perhaps endangering
20 federal agents and reducing the efficacy of the actions.
21 The grand jury thus has serious law enforcement concerns as
22 the goal of its investigation. The government has a compelling
23 interest in maintaining the secrecy of imminent asset freezes or
24 searches lest the targets be informed and spirit away those
25 assets or incriminating evidence. At stake in the present
20
1 investigation, therefore, is not only the important principle of
2 secrecy regarding imminent law enforcement actions but also a set
3 of facts -- informing the targets of those impending actions --
4 that may constitute a serious obstruction of justice.
5 It is beyond argument that the evidence from the reporters
6 is on its face critical to this inquiry. First, as the
7 recipients of the disclosures, they are the only witnesses --
8 other than the source(s) -- available to identify the
9 conversations in question and to describe the circumstances of
10 the leaks. Second, the reporters were not passive collectors of
11 information whose evidence is a convenient means for the
12 government to identify an official prone to indiscretion. The
13 communications to the two foundations were made by the reporters
14 themselves and may have altered the results of the asset freezes
15 and searches; that is to say, the reporters' actions are central
16 to (and probably caused) the grand jury's investigation. Their
17 evidence as to the relationship of their source(s) and the leaks
18 themselves to the informing of the targets is critical to the
19 present investigation. There is simply no substitute for the
20 evidence they have.
21 The centrality of the reporters' evidence to the
22 investigation is demonstrated by the Times' echoing of the
23 district court's understandable view that some or many of the
24 phone records sought are not material because they do not relate
21
1 to the investigation and may include reporters' sources on other
2 newsworthy matters. The Times seeks to add to that argument by
3 stating that the government has not exhausted available non-
4 privileged alternatives to the obtaining of the phone records.
5 This argument is more ironic than persuasive. Redactions of
6 documents are commonplace where sensitive and irrelevant
7 materials are mixed with highly relevant information. United
8 States v. Nixon, 418 U.S. 683, 713-14 (1974); In re Grand Jury
9 Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379,
10 386 (2d Cir. 2003) (describing in camera review as "a practice
11 both long-standing and routine in cases involving claims of
12 privilege" and collecting cases). Our caselaw regarding
13 disclosure of sources by reporters provides ample support for
14 redacting materials that might involve confidential sources not
15 relevant to the case at hand. United States v. Cutler, 6 F.3d
16 67, 74-75 (2d Cir. 1993) (rejecting defendant's subpoena seeking
17 reporters' unpublished notes because the notes' "irrelevance . .
18 . seems clear"). In the present case, therefore, any reporters'
19 privilege -- or lesser legal protection -- with regard to non-
20 material sources can be fully accommodated by the appropriate
21 district court's in camera supervision of redactions of phone
22 records properly shown to be irrelevant.
23 However, the knowledge and testimony of the reporters does
24 not have a reasonably available substitute in redacting the
22
1 records because it is the content of the underlying conversations
2 and/or other contacts that would determine relevancy. Redactions
3 would therefore require the cooperation of the Times or its
4 reporters, or both, in identifying the material to be redacted
5 and verifying it as irrelevant, or in credibly disclosing the
6 reporters' source(s) to the grand jury and obviating the need to
7 view in gross the phone records.
8 In short, the only reasonable unavailed-of alternative that
9 would mitigate the overbreadth of the threatened subpoena is the
10 cooperation of the reporters and the Times. ^4 We fully understand
11 the position taken by the Times regarding protection of its
12 reporters' confidential communications with the source(s) of
13 information regarding the HLF and GRF asset freezes/searches.
14 However, the government, having unsuccessfully sought the Times'
15 cooperation, cannot be charged by the Times with having issued an
16 unnecessarily overbroad subpoena. By the same token, the
17 government, if offered cooperation that eliminates the need for
18 the examination of the Times' phone records in gross, cannot
19 resist the narrowing of the information to be produced. United
20 States v. Burke, 700 F.2d 70, 76 (2d Cir. 1983) (rejecting
21 subpoena when the information it sought would serve a "solely
22 cumulative purpose").
23 There is therefore a clear showing of a compelling
24 governmental interest in the investigation, a clear showing of
23
1 relevant and unique information in the reporters' knowledge, and
2 a clear showing of need. No grand jury can make an informed
3 decision to pursue the investigation further, much less to indict
4 or not indict, without the reporters' evidence. It is therefore
5 not privileged.
6 We emphasize that our holding is limited to the facts before
7 us, namely the disclosures of upcoming asset freezes/searches and
8 informing the targets of them. For example, in order to show a
9 need for the phone records, the government asserts by way of
10 affidavit that it has "reasonably exhausted alternative
11 investigative means" and declines to give further details of the
12 investigation on the ground of preserving grand jury secrecy.
13 While we believe that the quoted statement is sufficient on the
14 facts of this case, we in no way suggest that such a showing
15 would be adequate in a case involving less compelling facts. In
16 the present case, the unique knowledge of the reporters is at the
17 heart of the investigation, and there are no alternative sources
18 of information that can reliably establish the circumstances of
19 the disclosures of grand jury information and the revealing of
20 that information to targets of the investigation.
21 We see no danger to a free press in so holding. Learning of
22 imminent law enforcement asset freezes/searches and informing
23 targets of them is not an activity essential, or even common, to
24 journalism. ^5 Where such reporting involves the uncovering of
24
1 government corruption or misconduct in the use of investigative
2 powers, courts can easily find appropriate means of protecting
3 the journalists involved and their sources. Branzburg, 408 U.S.
4 at 707-08 ("[A]s we have earlier indicated, news gathering is not
5 without its First Amendment protections, and grand jury
6 investigations if instituted or conducted other than in good
7 faith, would pose wholly different issues for resolution under
8 the First Amendment. Official harassment of the press undertaken
9 not for purposes of law enforcement but to disrupt a reporter's
10 relationship with his news sources would have no justification.
11 Grand juries are subject to judicial control and subpoenas to
12 motions to quash. We do not expect courts will forget that grand
13 juries must operate within the limits of the First Amendment as
14 well as the Fifth.") (footnote omitted).
15 3. First Amendment Protection
16 Branzburg v. Hayes, 408 U.S. 665 (1972), is the governing
17 precedent regarding reporters' protection under the First
18 Amendment from disclosing confidential sources. That case was a
19 consolidated appeal of various reporters' claims that they could
20 not be compelled to testify before a grand jury concerning
21 activity they had observed pursuant to a promise of
22 confidentiality. Id. at 667-79. The reporters argued that "the
23 burden on news gathering resulting from compelling reporters to
24 disclose confidential information outweighs any public interest
25
1 in obtaining the information." Id. at 681.
2 The court concluded, on a 5-4 vote, that the reporters had
3 no such privilege. Justice White wrote the majority opinion.
4 Justice Powell, although concurring in the White opinion, wrote a
5 brief concurrence. Justice Stewart wrote a dissent in which
6 Justices Brennan and Marshall concurred. Justice Douglas wrote a
7 further dissent.
8 Justice White's majority opinion stated, "We are asked to
9 create another [testimonial privilege] by interpreting the First
10 Amendment to grant newsmen a testimonial privilege that other
11 citizens do not enjoy. This we decline to do." Id. at 690.
12 While the body of Justice White's opinion was decidedly negative
13 toward claims similar to those raised by the Times, it noted that
14 the First Amendment might be implicated if a subpoena were issued
15 to a reporter in bad faith. "[G]rand jury investigations if
16 instituted or conducted other than in good faith, would pose
17 wholly different questions for resolution under the First
18 Amendment." Id. at 707. See also id. at 700 (stating that
19 "Nothing in the record indicates that these grand juries were
20 probing at will and without relation to existing need.")
21 (citation, brackets, and quotation marks omitted).
22 Justice Powell joined the majority opinion and also wrote a
23 short concurrence for the purpose of "emphasiz[ing] what seems to
24 me to be the limited nature of the Court's holding." Id. at 709
26
1 (Powell, J., concurring). He stated that:
2 If a newsman believes that the grand jury
3 investigation is not being conducted in good
4 faith he is not without remedy. Indeed, if
5 the newsman is called upon to give
6 information bearing only a remote and tenuous
7 relationship to the subject of the
8 investigation, or if he has some other reason
9 to believe that his testimony implicates
10 confidential source relationship without a
11 legitimate need of law enforcement, he will
12 have access to the court on a motion to quash
13 and an appropriate protective order may be
14 entered.
15
16 Id. at 710. Justice Powell then concluded that "[t]he asserted
17 claim to privilege should be judged on its facts by the striking
18 of a proper balance between freedom of the press and the
19 obligation of all citizens to give relevant testimony with
20 respect to criminal conduct." Id.
21 In dissent, Justice Stewart stated that he would recognize a
22 First Amendment right in reporters to decline to reveal
23 confidential sources. Id. at 737-38. The right would be
24 qualified, however, and subject to being overcome under the test
25 quoted above. Id. at 743, supra at Part (b)(2)(B). Justices
26 Brennan and Marshall joined that opinion.
27 Justice Douglas's dissent recognized an absolute right in
28 journalists not to appear before grand juries to testify
29 regarding journalistic activities. He reasoned that unless those
30 activities implicated a journalist in a crime, the First
31 Amendment was a shield against answering the grand jury's
27
1 questions. If the journalist was implicated in a crime, the
2 Fifth Amendment would provide a similar shield.
3 The parties debate various of our decisions addressing First
4 Amendment claims with regard to reporters' rights to protect
5 confidences and the import of Branzburg. Gonzales v. National
6 Broadcasting Co., Inc., 194 F.3d 29 (2d Cir. 1999); United States
7 v. Cutler, 6 F.3d 67 (2d Cir. 1993); United States v. Burke, 700
8 F.2d 70 (2d Cir. 1983); In re Petroleum Prods. Antitrust Litig.,
9 680 F.2d 5 (2d Cir. 1982).
10 We see no need to add a detailed analysis of our precedents.
11 None involved a grand jury subpoena or the compelling law
12 enforcement interests that exist when there is probable cause to
13 believe that the press served as a conduit to alert the targets
14 of an asset freeze and/or searches. Branzburg itself involved a
15 grand jury subpoena, is concededly the governing precedent, ^6 and
16 none of the opinions of the Court, save that of Justice Douglas, ^7
17 adopts a test that would afford protection against the present
18 investigation.
19 Certainly, nothing in Justice White's opinion or in Justice
20 Powell's concurrence calls for preventing the present grand jury
21 from accessing information concerning the identity of the
22 reporters' source(s). ^8 The disclosure of an impending asset
23 freeze and/or search that is communicated to the targets is of
24 serious law enforcement concerns, and there is no suggestion of
28
1 bad faith in the investigation or conduct of the investigation.
2 Indeed, as discussed in detail above, the test outlined in
3 Justice Stewart's Branzburg dissent would be met in the present
4 case. The serious law enforcement concerns raised by targets
5 learning of impending searches because of unauthorized
6 disclosures to reporters who call the targets easily meets
7 Justice Stewart's standards of relevance and need. As also
8 noted, while it is true that the disclosure of all phone records
9 over a period of time may exceed the needs of the grand jury, the
10 overbreadth can be cured only if the Times and its reporters
11 agree to cooperate in tailoring the information provided to those
12 needs. Otherwise, the overbreadth does not defeat the subpoena.
13 CONCLUSION
14 Accordingly, the judgment of the district court is vacated,
15 and the case is remanded to enter a declaratory judgment in
16 accordance with the terms of this opinion and without prejudice
17 to the district court's redaction of materials irrelevant to the
18 investigation upon an offer of appropriate cooperation.
19
20
29
1 FOOTNOTES
2
3 1. Judge Sweet granted summary judgment to the government on the
Times' claim that the government attorneys in the present matter
had not complied with DOJ guidelines. He also dismissed as moot
the Times' due process claim. The Times does not appeal from
these rulings.
2. The record is unclear as to whether the reporters mentioned
the searches as well as the asset freezes to the targets.
However, there is evidence that one of the foundations had a
lawyer present when agents arrived to begin the search.
3. The government relies on Reporters Committee for Freedom of
the Press v. American Telephone & Telegraph Co., 593 F.2d 1030,
1048-49 (D.C. Cir. 1978), which suggested that journalists have
no more First Amendment rights in their toll-call records in the
hands of third parties than they have in records of third party
airlines, hotels, or taxicabs. Under Longshoremen's integral
role standard, however, third party telephone records may be
distinguishable from third party travel records. Telephone lines
-- which carry voice and facsimile communication - are a
relatively indispensable tool of national or international
30
journalism, and one that requires the service of a third party
provider. The same is arguably not true of lodging, air travel,
and taxicabs. Whether such a distinction is valid need not be
determined, however, because Longshoremen's governs this case in
any event.
4. Understandably, the Times has not argued that identification
of the source(s) by the reporters or the paper would be a
reasonable, alternative means of obtaining the information.
5. We harbor no doubt whatsoever that, on the present record,
the test adopted by our dissenting colleague for overcoming a
qualified privilege has been satisfied. Following his
articulation of that test, the following is apparent. First,
ascertaining the reporters' knowledge of the identity of their
source and of the events leading to the disclosure to the targets
of the imminent asset freezes/searches is clearly essential to an
investigation into the alerting of those targets. Second, that
knowledge is not obtainable from other sources; even a full
confession by the leaker would leave the record incomplete as to
the facts of, and reasons for, the alerting of the targets.
Third, we know of no sustainable argument that maintaining the
confidentiality of the imminent asset freezes/searches would be
contrary to the public interest; we see no public interest in
31
compelling disclosure of the imminent asset freezes/searches; we
see no public interest in having information on imminent asset
freezes/searches flow to the public, much less to the targets;
and we see no need for further explication of the government's
powerful interest in maintaining the secrecy of imminent asset
freezes/searches. All of this is obvious on the present record.
Our colleague's arguments to the contrary may be suited to the
paradigmatic case where a newsperson is one of many witnesses to
an event and the actions and state of mind of the newsperson are
not in issue. See In re Grand Jury Subpoena, Judith Miller, 397
F.3d 964 (D.C. Cir. 2005). The present case, however, does not
fit the paradigm because, as discussed in the text, the reporters
were active participants in the alerting of the targets.
6. See In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 970
(D.C. Cir. 2005); United States v. Smith, 135 F.3d 963, 968-69
(5th Cir. 1998); In re Grand Jury Proceedings, 5 F.3d 397, 400
(9th Cir. 1993); In re Grand Jury Proceedings, 810 F.2d 580, 584
(6th Cir. 1987). The D.C. Circuit noted:
Unquestionably, the Supreme Court decided in
Branzburg that there is no First Amendment
privilege protecting journalists from
appearing before a grand jury or from
testifying before a grand jury or otherwise
providing evidence to a grand jury regardless
of any confidence promised by the reporter to
any source. The Highest Court has spoken and
never revisited the question. Without doubt,
that is the end of the matter.
32
In re Grand Jury Subpoena, Judith Miller, 397 F.3d at 970.
7. The government has not stated that a crime has taken place;
at this stage, it is merely investigating the circumstances of
the disclosures that led to the alerting of the targets of the
asset freeze and/or searches. We need not, therefore, explore
the implications for the Times or its reporters of the privilege
as described by Justice Douglas.
8. Justice Powell's concurrence suggests that the First
Amendment affords a privilege "if the newsman is called upon to
give information bearing only a remote and tenuous relationship
to the subject of the investigation." 408 U.S. at 710. The
threatened subpoena thus may be overbroad under the First
Amendment because it will surely yield some information that
bears "only a remote and tenuous relationship" to the
investigation. As we note elsewhere, however, this overbreadth
problem can be remedied by redaction with the cooperation of the
Times and its reporters.
33
1 The New York Times Co. v. Gonzales,
2 No. 05-2639
3 Sack, Circuit Judge, dissenting:
4 For reasons outlined in Part I below, I agree with much
5 of the majority opinion. I ultimately disagree with the result
6 the majority reaches, however, and therefore respectfully
7 dissent.
8 I.
9 Declaratory judgment can in some circumstances -- and
10 does in these -- serve as a salutary procedural device for
11 testing the propriety of a government attempt to compel
12 disclosure of information from journalists. It is indeed
13 questionable whether, in the case before us, the plaintiff could
14 have obtained effective judicial review of the validity of the
15 government's proposed subpoena of the plaintiff's phone records
16 without it. The Court holds today that contrary to the
17 government's view, a member of the press may in appropriate
18 circumstances obtain a declaratory judgment to protect the
19 identity of his or her sources of information in the course of a
20 criminal inquiry. It makes clear, moreover, that in the grand
21 jury context, such an action need not be brought in a
22 jurisdiction in which the grand jury sits. I agree.
1 The Court's decision also confirms the ability of
2 journalists to protect the identities of their sources in the
3 hands of third-party communications-service providers -- in this
4 case, one or more telephone companies. Without such protection,
5 prosecutors, limited only by their own self-restraint, could
6 obtain records that identify journalists' confidential sources in
7 gross and virtually at will. Reporters might find themselves, as
8 a matter of practical necessity, contacting sources the way I
9 understand drug dealers to reach theirs -- by use of clandestine
10 cell phones and meetings in darkened doorways. Ordinary use of
11 the telephone could become a threat to journalist and source
12 alike. It is difficult to see in whose best interests such a
13 regime would operate.
14 More fundamentally still, the Court today reaffirms the
15 role of federal courts in mediating between the interests of law
16 enforcement in obtaining information to assist their discovery
17 and prosecution of violations of federal criminal law, and the
18 interests of the press in maintaining source-confidentiality for
19 the purpose of gathering information for possible public
20 dissemination. For the question at the heart of this appeal is
21 not so much whether there is protection for the identity of
22 reporters' sources, or even what that protection is, but which
-2-
1 branch of government decides whether, when, and how any such
2 protection is overcome.
3 The parties begin on common ground. The government
4 does not dispute that journalists require substantial protection
5 from compulsory government processes that would impair the
6 journalists' ability to gather and disseminate the news. Since
7 1970, two years before the Supreme Court decided Branzburg v.
8 Hayes, 408 U.S. 665 (1972), United States Department of Justice
9 regulations have set forth a departmental policy designed to
10 protect the legitimate needs of the news media in the context of
11 criminal investigations and prosecutions.
12 The Department of Justice guidelines are broadly
13 worded. The preamble states:
14 Because freedom of the press can be no
15 broader than the freedom of reporters to
16 investigate and report the news, the
17 prosecutorial power of the government should
18 not be used in such a way that it impairs a
19 reporter's responsibility to cover as broadly
20 as possible controversial public issues.
21 This policy statement is thus intended to
22 provide protection for the news media from
23 forms of compulsory process, whether civil or
24 criminal, which might impair the news
25 gathering function.
26 28 C.F.R. § 50.10. The guidelines require that "the approach in
27 every case must be to strike the proper balance between the
28 public's interest in the free dissemination of ideas and
29 information and the public's interest in effective law
-3-
1 enforcement and the fair administration of justice," id.
2 § 50.10(a); that "[a]ll reasonable attempts should be made to
3 obtain information from alternative sources before considering
4 issuing a subpoena to a member of the news media," id.
5 § 50.10(b); and that "[i]n criminal cases, [before a subpoena is
6 served on a member of the media,] there should be reasonable
7 grounds to believe, based on information obtained from nonmedia
8 sources, that a crime has occurred, and that the information
9 sought is essential to a successful investigation--particularly
10 with reference to directly establishing guilt or innocence. The
11 subpoena should not be used to obtain peripheral, nonessential,
12 or speculative information," id. § 50.10(f)(1).
13 In 1980, the guidelines were extended to provide that
14 "all reasonable alternative investigative steps should be taken
15 before considering issuing a subpoena for telephone toll records
16 of any member of the news media." Id. Subsection (g) of the
17 guidelines reads in part:
18 In requesting the Attorney General's
19 authorization for a subpoena for the
20 telephone toll records of members of the news
21 media, the following principles will apply:
22 (1) There should be reasonable ground to
23 believe that a crime has been committed and
24 that the information sought is essential to
25 the successful investigation of that crime.
26 The subpoena should be as narrowly drawn as
27 possible; it should be directed at relevant
-4-
1 information regarding a limited subject
2 matter and should cover a reasonably limited
3 time period. In addition, prior to seeking
4 the Attorney General's authorization, the
5 government should have pursued all reasonable
6 alternative investigation steps as required
7 by paragraph (b) of this section [quoted
8 above].
9 ....
10 Id. § 50.10(g).
11 The government has made clear that it considers itself
12 bound by these guidelines, see, e.g., Gov't Br. at 63, and
13 asserts that it has abided by them in this case, see, e.g., id.;
14 Letter of James Comey, Deputy Attorney General, to Floyd Abrams,
15 attorney for the plaintiff, dated Sept. 23, 2004 (referring to
16 the Department as "[h]aving diligently pursued all reasonable
17 alternatives out of regard for First Amendment concerns, and
18 having adhered scrupulously to Department policy").
19 While the government argues strenuously that the
20 Department's guidelines do not create a judicially enforceable
21 privilege, ^1 the substantive standards that they establish as
22 Department policy are strikingly similar to the reporter's
23 privilege as we have articulated it from time to time. For
24 example, in In re Petroleum Products Antitrust Litigation, 680
25 F.2d 5, 7-8 (2d Cir.) (per curiam) (civil case), cert. denied,
1
The plaintiff does not argue otherwise on this appeal.
-5-
1 459 U.S. 909 (1982) (quoted by the majority, ante at [20]), we
2 said: "[D]isclosure [of the identity of a confidential source]
3 may be ordered only upon a clear and specific showing that the
4 information is: highly material and relevant, necessary or
5 critical to the maintenance of the claim, and not obtainable from
6 other available sources." This is also the standard urged upon
7 us by the plaintiff and apparently adopted by the district court.
8 See N.Y. Times Co. v. Gonzales, 382 F. Supp. 2d 457 (S.D.N.Y.
9 2005) ("N.Y. Times") (passim). The guidelines' test is thus very
10 much like the test that the plaintiff asks us to apply.
11 The primary dispute between the parties, then, is not
12 whether the plaintiff is protected in these circumstances, or
13 what the government must demonstrate to overcome that protection,
14 but to whom the demonstration must be made. The government tells
15 us that under Branzburg, "except in extreme cases of
16 [prosecutorial] bad faith," Tr. of Oral Argument, Feb. 13, 2006,
17 at 12, federal courts have no role in monitoring its decision as
18 to how, when, and from whom federal prosecutors or a federal
19 grand jury can obtain information. Apparently based on that
20 supposition, the government did not make a serious attempt to
21 establish to the district court's satisfaction that the standard
22 for requiring disclosure had been met. Neither has it argued
-6-
1 forcefully to us that it in fact did so. ^2 For example, with
2 respect to the government's assertion that it has "pursued all
3 reasonable alternative investigation steps" to source disclosure
4 (guidelines formulation) or that the information it needs is "not
5 obtainable from other available sources" (Petroleum Products
6 formulation), the government tells us only that:
7 The Affirmation of the United States Attorney
8 for the Northern District of Illinois, who
9 was personally involved in conducting, and
10 responsible for supervising, the ongoing
11 grand jury investigation, stated that "the
12 government had reasonably exhausted
13 alternative investigative means," and that
14 the Attorney General of the United States had
15 authorized the issuance of the challenged
16 subpoenas pursuant to the DOJ Guidelines.
17 Gov't Br. at 63. ^3 The government thus takes the position that it
18 is entitled to obtain the Times' telephone records in order to
19 determine the identity of its reporters' confidential sources
2
Only the last six and a half pages of its sixty-six page
brief to us address the plaintiff's contention that the
government has not met the burden.
3
The government has repeatedly asserted that it has in
fact exhausted alternative sources for obtaining the information
it needs, but has not told us how it has done so. See Gov't Br.
at 63-64; Affirmation of Patrick Fitzgerald, dated Nov. 19, 2004,
at 5; id. at 5, n.18; Letter of Patrick Fitzgerald to Solomon
Watson, General Counsel, The New York Times Company, dated July
12, 2004, at 2.
-7-
1 because it has satisfied itself that the applicable standard has
2 been met.
3 I do not think, and I read the majority opinion to
4 reject the proposition, that the executive branch of government
5 has that sort of wholly unsupervised authority to police the
6 limits of its own power under these circumstances. As Judge
7 Tatel, concurring in judgment in In re Grand Jury Subpoena,
8 Judith Miller, 397 F.3d 964 (D.C. Cir.) ("In re Grand Jury
9 Subpoena"), cert. denied, 125 S. Ct. 2977 (2005), reissued as
10 amended, 438 F.3d 1141 (D.C. Cir. 2006), observed not long ago:
11 [T]he executive branch possesses no special
12 expertise that would justify judicial
13 deference to prosecutors' judgments about the
14 relative magnitude of First Amendment
15 interests. Assessing those interests
16 traditionally falls within the competence of
17 courts. Indeed, while the criminality of a
18 leak and the government's decision to press
19 charges might well indicate the leak's
20 harmfulness -- a central concern of the
21 balancing test -- once prosecutors commit to
22 pursuing a case they naturally seek all
23 useful evidence. Consistent with that
24 adversarial role, the Federal Rules of
25 Evidence assign to courts the function of
26 neutral arbiter: "Preliminary questions
27 concerning the qualification of a person to
28 be a witness, the existence of a privilege,
29 or the admissibility of evidence shall be
30 determined by the court." Fed. R. Evid.
31 104(a) (emphasis added). Accordingly, just
32 as courts determine the admissibility of
33 hearsay or the balance between probative
-8-
1 value and unfair prejudice under Rule 403, so
2 with respect to this issue must courts weigh
3 factors bearing on the privilege.
4 Moreover, in addition to these principles
5 applicable to the judicial role in any
6 evidentiary dispute, the dynamics of leak
7 inquiries afford a particularly compelling
8 reason for judicial scrutiny of prosecutorial
9 judgments regarding a leak's harm and news
10 value. Because leak cases typically require
11 the government to investigate itself, if
12 leaks reveal mistakes that high-level
13 officials would have preferred to keep
14 secret, the administration may pursue the
15 source with excessive zeal, regardless of the
16 leaked information's public value.
17 438 F.3d at 1175-76 (citations omitted).
18 In concluding that insofar as there is an applicable
19 reporter's privilege, it has been overcome in this case, Judge
20 Winter's opinion makes clear that the government's demonstration
21 of "necessity" and "exhaustion" must, indeed, be made to the
22 courts, not just the Attorney General. ^4 The majority believes,
23 wrongly in my view, that the standard has been satisfied in this
24 case. But that is a far cry from the government's position that
25 the Court's satisfaction is irrelevant.
26 The government relies primarily on Branzburg to support
27 its view that the First Amendment provides journalists no
4
In this case, then-Deputy Attorney General James Comey.
The Attorney General had recused himself.
-9-
1 judicially enforceable rights as against grand jury subpoenas.
2 The government's reading of Branzburg is simply wrong. The
3 Branzburg Court did not say that a court's role is limited to
4 guarding against "extreme cases of prosecutorial bad faith," nor
5 was the burden of its message that prosecutors can decide for
6 themselves the propriety of grand jury subpoenas. Even in the
7 context of its examination of First Amendment protections, it
8 said that "the powers of the grand jury are not unlimited and are
9 subject to the supervision of a judge," 408 U.S. at 688, and that
10 "this system is not impervious to control by the judiciary," id.
11 at 698. The concluding portion of Justice White's opinion for
12 the Branzburg Court noted that "[g]rand juries are subject to
13 judicial control and subpoenas to motions to quash. We do not
14 expect courts will forget that grand juries must operate within
15 the limits of the First Amendment as well as the Fifth." Id. at
16 708. And, in affirming the judgment of the Supreme Judicial
17 Court of Massachusetts in one of the cases before it, the Court
18 noted that the duty of the reporter to testify on remand was
19 "subject, of course, to the supervision of the presiding judge as
20 to the propriety, purposes, and scope of the grand jury inquiry
21 and the pertinence of the probable testimony" under Massachusetts
22 law. Id. at 709 (internal quotation marks and citation omitted).
-10-
1 If there were any doubt on this point, Justice Powell,
2 who cast the deciding vote for the Court, dispelled it. He
3 referred, in his concurring opinion, to the "concluding portion
4 of [Justice White's] opinion," id., portions of which are quoted
5 above. Justice Powell wrote:
6 [T]he Court states that no harassment of
7 newsmen will be tolerated. If a newsman
8 believes that the grand jury investigation is
9 not being conducted in good faith he is not
10 without remedy. Indeed, if the newsman is
11 called upon to give information bearing only
12 a remote and tenuous relationship to the
13 subject of the investigation, or if he has
14 some other reason to believe that his
15 testimony implicates confidential source
16 relationships without a legitimate need of
17 law enforcement, he will have access to the
18 court on a motion to quash and an appropriate
19 protective order may be entered. The
20 asserted claim to privilege should be judged
21 on its facts by the striking of a proper
22 balance between freedom of the press and the
23 obligation of all citizens to give relevant
24 testimony with respect to criminal conduct.
25 Id. at 709-10 (Powell, J., concurring).
26 We have since written "that the Supreme Court's
27 decision in [Branzburg] recognized the need [for the courts] to
28 balance First Amendment values even where a reporter is asked to
29 testify before a grand jury." United States v. Burke, 700 F.2d
30 70, 77 (2d Cir.) (citing Baker v. F&F Invs., 470 F.2d 778, 784-85
31 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 (1973)), cert.
-11-
1 denied, 464 U.S. 816 (1983); see also United States v. Cutler, 6
2 F.3d 67, 71 (2d Cir. 1993) (noting the Branzburg Court's
3 commentary that "[w]e do not expect courts will forget that grand
4 juries must operate within the limits of the First Amendment as
5 well as the Fifth." (quoting Branzburg, 408 U.S. at 708));
6 Gonzales v. Nat'l Broad. Co., 194 F.3d 29, 34 (2d Cir. 1998)
7 (characterizing United States v. Cutler as "proceed[ing] on the
8 assumption that, despite the nonconfidential nature of the
9 information sought [from members of the media by a government
10 subpoena in a criminal context], a qualified journalists'
11 privilege applied, and the defendant had to show [to the district
12 court] a sufficient need for the information to overcome the
13 privilege"); cf. In re Grand Jury Subpoena, 438 F.3d at 1164
14 (Tatel, J., concurring in judgment) ("[G]iven that any witness --
15 journalist or otherwise -- may challenge [an 'unreasonable or
16 oppressive'] subpoena, the [Branzburg,] majority must have meant,
17 at the very least, that the First Amendment demands a broader
18 notion of 'harassment' for journalists than for other witnesses."
19 (quoting Fed. R. Crim. P. 17(c)(2))).
20 Of course, Branzburg's core holding places serious, if
21 poorly defined, limits on the First Amendment protections that
22 reporters can claim in the grand jury context. But, as the
23 majority implicitly acknowledges by treating them and the common
-12-
1 law privilege separately, any limits on the constitutional
2 protection imposed by Branzburg do not necessarily apply to the
3 common law privilege under Federal Rule of Evidence 501. See In
4 re Grand Jury Subpoena, 438 F.3d at 1160 (Henderson, J.,
5 concurring) ("[W]e are not bound by Branzburg's commentary on the
6 state of the common law in 1972."); id. at 1166 (Tatel, J.,
7 concurring in judgment) ("Given Branzburg's instruction that
8 'Congress has freedom to determine whether a statutory newsman's
9 privilege is necessary and desirable and to fashion standards and
10 rules as narrow or broad as deemed necessary to deal with the
11 evil discerned,' Rule 501's [subsequent] delegation of
12 congressional authority requires that we look anew at the
13 'necessity and desirability' of the reporter privilege -- though
14 from a common law perspective." (quoting Branzburg, 408 U.S. at
15 706 (alterations incorporated))). The majority's primary focus
16 on the common law privilege, as interpreted by Jaffee v. Redmond,
17 518 U.S. 1 (1996), therefore appears to me to be appropriate.
18 II.
19 To explain why I disagree with the majority's
20 conclusion that we "need not decide whether a common law
21 privilege exists because any such privilege would be overcome as
22 a matter of law on the present facts," ante at [3], I must set
23 forth in some detail why I think a privilege is applicable and
24 what protection I think it affords.
-13-
1 It is self-evident that law enforcement cannot function
2 unless prosecutors have the ability to obtain, coercively if
3 necessary, relevant and material information. As the district
4 court put it, "[i]t is axiomatic that, in seeking such testimony
5 and evidence, the prosecutor acts on behalf of the public and in
6 furtherance of the 'strong national interest in the effective
7 enforcement of its criminal laws.' United States v. Davis, 767
8 F.2d 1025, 1035 (2d Cir. 1985) (citations omitted)." N.Y. Times,
9 382 F. Supp. 2d at 463.
10 The vital role the grand jury plays in the process is
11 also indisputable.
12 [T]he grand jury, a body "deeply rooted in
13 Anglo-American history" and guaranteed by the
14 Fifth Amendment, see United States v.
15 Calandra, 414 U.S. 338, 342-43 (1974), holds
16 "broad powers" to collect evidence through
17 judicially enforceable subpoenas. See United
18 States v. Sells Eng'g, Inc., 463 U.S. 418,
19 423-24 (1983). "Without thorough and
20 effective investigation, the grand jury would
21 be unable either to ferret out crimes
22 deserving of prosecution, or to screen out
23 charges not warranting prosecution." Id. at
24 424.
25 In re Grand Jury Subpoena, 438 F.3d at 1163 (Tatel, J.,
26 concurring in judgment).
27 At the same time, it can no longer be controversial
28 that to perform their critical function, journalists must be able
29 to maintain the confidentiality of sources who seek so to be
-14-
1 treated -- reliably, if not absolutely in each and every case.
2 As this Court recognized early on:
3 Compelled disclosure of confidential sources
4 unquestionably threatens a journalist's
5 ability to secure information that is made
6 available to him only on a confidential
7 basis . . . . The deterrent effect such
8 disclosure is likely to have upon future
9 "undercover" investigative reporting . . .
10 threatens freedom of the press and the
11 public's need to be informed. It thereby
12 undermines values which traditionally have
13 been protected by federal courts applying
14 federal public policy to be followed in each
15 case.
16 Baker, 470 F.2d at 782. As we later remarked, the Baker Court
17 "grounded the qualified privilege [protecting journalists'
18 sources] in a broader concern for the potential harm to
19 'paramount public interest in the maintenance of a vigorous,
20 aggressive and independent press capable of participating in
21 robust, unfettered debate over controversial matters.'" Nat'l
22 Broad. Co., 194 F.3d at 33 (quoting Baker, 470 F.2d at 782).
23 "The necessity for confidentiality [is] essential to fulfillment
24 of the pivotal function of reporters to collect information for
25 public dissemination." Petroleum Prods., 680 F.2d at 8; see also
26 N.Y. Times, 382 F. Supp. 2d at 465, 469-71 (reviewing the
27 evidence before the court with respect to need for these
28 plaintiff's reporters in this case to be able to protect the
29 identity of their sources in order to report effectively).
-15-
1 As Professor Alexander Bickel put it in the wake of
2 Branzburg:
3 Indispensable information comes in confidence
4 from officeholders fearful of competitors,
5 from informers operating at the edge of the
6 law who are in danger of reprisal from
7 criminal associates, from people afraid of
8 the law and of government -- sometimes
9 rightly afraid, but as often from an excess
10 of caution -- and from men in all fields
11 anxious not to incur censure for unorthodox
12 or unpopular views . . . . Forcing reporters
13 to divulge such confidences would dam the
14 flow to the press, and through it to the
15 people, of the most valuable sort of
16 information: not the press release, not the
17 handout, but the firsthand story based on the
18 candid talk of a primary news source. . . .
19 [T]he disclosure of reporters' confidences
20 will abort the gathering and analysis of
21 news, and thus, of course, restrain its
22 dissemination. The reporter's access is the
23 public's access.
24 Alexander Bickel, "Domesticated Disobedience," The Morality of
25 Consent 84-85 (1975) (emphasis in original) (hereinafter "The
26 Morality of Consent"). ^5
27 Beginning no later than our own opinion in Baker,
28 supra, which was decided several months after Branzburg, courts
29 and legislatures throughout the country turned to this issue,
5
Professor Bickel represented amici on the losing side in
Branzburg. He represented the successful petitioner in "The
Pentagon Papers Case", N.Y. Times Co. v. United States, 403 U.S.
713 (1971). See The Morality of Consent, 61 n.6 & 84 n.38.
-16-
1 many for the first time. They assessed the needs of effective
2 law enforcement and effective news gathering, seeking to resolve
3 as best they could the tension between them. Although the
4 solutions crafted tended to be similar, they were not entirely
5 uniform -- one could hardly expect to find uniformity among
6 thirty-one state legislatures ^6 and myriad state and federal
7 courts that established, or confirmed the existence of, a
8 qualified privilege for journalists to protect the identity of
9 their sources. ^7 But they all-but-universally agreed that
10 protection there must be. For the reasons set forth in great
11 detail in both the seminal opinion of Judge Tatel in In re Grand
12 Jury Subpoena and in the opinion of the district court here, I
13 have no doubt that there has been developed in those thirty-four
14 years federal common-law protection for journalists' sources
6
The statutes are enumerated in the district court's
opinion. See N.Y. Times, at 382 F. Supp. 2d at 502 & n.34. More
recently, Connecticut enacted such a law. See Conn. Public Act
No. 06-140 (June 6, 2006) (effective Oct. 1, 2006); see also
Lobbyist Argues against 'Shield' Laws for Media, Tech. Daily, May
5, 2006; Christopher Keating & Elizabeth Hamilton, A Deal at
Last, The Hartford Courant, May 4, 2006, at A1.
7
Judge Tatel referred to "the laws of forty-nine states
and the District of Columbia, as well as federal courts and the
federal government." In re Grand Jury Subpoena, 438 F.3d at 1172
(Tatel, J., concurring in judgment).
-17-
1 under Federal Rule of Evidence 501 ^8 as interpreted by Jaffee.
2 The district court here succinctly outlined the factors in Jaffee
3 a court should use in determining whether such a privilege
4 exists:
5 (1) whether the asserted privilege would
6 serve significant private interests; (2)
7 whether the privilege would serve significant
8 public interests; (3) whether those interests
9 outweigh any evidentiary benefit that would
10 result from rejection of the privilege
11 proposed; and (4) whether the privilege has
12 been widely recognized by the states. See
13 Jaffee, 518 U.S. at 10-13.
14 N.Y. Times, 382 F. Supp. 2d at 494. A qualified journalists'
15 privilege seems to me easily -- even obviously -- to meet each of
16 those qualifications. The protection exists. It is palpable; it
17 is ubiquitous; it is widely relied upon; it is an integral part
8
Rule 501, adopted three years after Branzburg, in 1975,
reads in pertinent part:
Except as otherwise required by the
Constitution of the United States or provided
by Act of Congress or in rules prescribed by
the Supreme Court pursuant to statutory
authority, the privilege of a witness,
person, government, State, or political
subdivision thereof shall be governed by the
principles of the common law as they may be
interpreted by the courts of the United
States in the light of reason and experience.
-18-
1 of the way in which the American public is kept informed and
2 therefore of the American democratic process. ^9
3 The precise words in which this journalist's privilege
4 is stated differ from jurisdiction to jurisdiction. Our
5 formulation of it in Petroleum Products quoted above is typical:
6 "[D]isclosure may be ordered only upon a clear and specific
7 showing that the information is: highly material and relevant,
8 necessary or critical to the maintenance of the claim, and not
9 obtainable from other available sources." Petroleum Prods., 680
10 F.2d at 7-8 (citing, inter alia, Zerilli v. Smith, 656 F.2d 705,
11 713-15 (D.C. Cir. 1981) and Silkwood v. Kerr-McGee Corp., 563
12 F.2d 433, 438 (10th Cir. 1977)). ^10
9
Laws protecting confidential sources are hardly unique to
the United States. See, e.g., Goodwin v. U.K., 22 E.H.R.R. 123
(1996) (European Ct. of Human Rights) (interpreting Article X of
the European Convention on Human Rights as requiring legal
protection for press sources).
10
The "exhaustion" requirement -- "not obtainable from
other available sources" -- harks back to what seems to be our
first foray into this subject, Garland v. Torre, 259 F.2d 545 (2d
Cir. 1958), written by then-Sixth Circuit Judge Potter Stewart,
sitting by designation. (Fourteen years later, by-then-Justice
Stewart wrote the principal dissent in Branzburg.) This Court
held, inter alia, that at that time there was no common law
reporter's privilege. Indeed there was little upon which one
might then have been found. We nonetheless noted, "While it is
possible that the plaintiff could have learned the identity of
the informant by further discovery proceedings directed to [the
company of which the source was said to be an official], her
-19-
1 This qualified privilege has successfully accommodated
2 the legitimate interests of law enforcement and the press for
3 more than thirty years. That it serves the needs of law
4 enforcement is attested to by the Department of Justice's
5 guidelines themselves. As noted, they establish protection for
6 journalists' sources in terms similar to the qualified privilege,
7 albeit as a matter of self-restraint rather than legal
8 obligation. If adhering to that standard hobbled law
9 enforcement, it is difficult to imagine that the Department of
10 Justice would have retained it -- indeed, have expanded its
11 coverage -- over the course of more than three-and-a-half
reasonable efforts in that direction had met with singular lack
of success." Id. at 551. In Baker, we said about Torre: "In
view of the[] denials [by witnesses that they were Torre's
source], the identity of Miss Torre's source became essential to
the libel action: in the words of this Court, it 'went to the
heart of the plaintiff's claim.' [Torre,] 259 F.2d at 550.
Appellants in this case [i.e., Baker], however, have not
demonstrated that the identity of [the reporter]'s confidential
source is necessary, much less critical, to the maintenance of
their civil rights action." Baker, 470 F.2d at 784.
The Torre case is also remembered for another reason:
Ms. Torre famously served a short jail sentence for contempt
rather than reveal the identity of her confidential source. See
Nick Ravo, Marie Torre, 72, TV Columnist Jailed for Protecting
News Source (obituary), N.Y. Times, Jan. 5, 1997, at Sec. 1, p.
24, Col. 5. A noteworthy aspect of the current litigation is
that, because the source identifying information is in the hands
of one or more third party telephone providers, the reporters
here do not have the option of similarly responding to an order
of the Court.
-20-
1 decades. And the flourishing state "shield" statutes indicate
2 that similar state-law protection has not interfered with
3 effective law enforcement at the state level. That it works for
4 the press, meanwhile, is demonstrated by "the dog that did not
5 bark" ^11 -- the paucity (not to say absence) of cases in the many
6 years between Branzburg and In re Grand Jury Subpoena in which
7 reporters have indeed been ordered to disclose their confidential
8 sources.
9 As we observed in National Broadcasting Co., without
10 requiring lawyers to seek alternative sources before permitting
11 them to subpoena the press for the information, "it would likely
12 become standard operating procedure for those litigating against
13 an entity that had been the subject of press attention to sift
14 through press files in search of information supporting their
15 claims." Nat'l Broad. Co., 194 F.3d at 35. But little of what
16 reporters learn is obtained first hand. Most is, in a broad
17 sense, told to them by others. Most is, therefore, "hearsay"
18 when published. When the government seeks information in a
19 reporter's possession, there is almost always someone other than
11
See A. Conan Doyle, Silver Blaze, in The Memoirs of
Sherlock Holmes 58 (1948) (cited in Frederick Schauer, Symposium:
Defamation in Fiction: Liars, Novelists, and the Law of
Defamation, 51 Brook. L. Rev. 233, 241 & n.38 (1985)).
-21-
1 the reporter and somewhere other than the newsroom from whom or
2 from which to obtain it. Under the qualified privilege, a lawyer
3 -- for the government or another party -- engaged in litigation
4 of any sort who thinks he or she needs information in a
5 journalist's possession, usually can, and then, under the
6 qualified privilege, therefore must, obtain it elsewhere.
7 "[W]hen prosecuting crimes other than leaks (murder or
8 embezzlement, say) the government, at least theoretically, can
9 learn what reporters know by replicating their investigative
10 efforts, e.g., speaking to the same witnesses and examining the
11 same documents." In re Grand Jury Subpoena, 438 F.3d at 1174
12 (Tatel, J., concurring in judgment). Except in those rare cases
13 in which the reporter is a witness to a crime, ^12 his or her
12
As was alleged to be the case in each of the three cases
that comprise Branzburg. See Branzburg, 408 U.S. at 668-72, 675-
76; Branzburg v. Pound, 461 S.W.2d 345 (1970) (the reporter
personally observed the production of hashish and the sale and
use of marijuana); In re Pappas, 358 Mass. 604, 266 N.E. 2d 297
(1971) (the reporter witnessed criminal acts committed by members
of the Black Panthers during a period of civil disorder in New
Bedford, Massachusetts), United States v. Caldwell, 434 F.2d 1081
(9th Cir. 1970) (reporter thought to have witnessed assassination
threats against the President, mail fraud, attempt or conspiracy
to assassinate the President, and civil disorder on the part of
the Black Panthers).
-22-
1 testimony is therefore very rarely essential ^13 and very rarely
2 compelled.
3 III.
4 The safeguard that has worked well over the years is,
5 however, incomplete when it is applied in "leak" inquiries such
6 as those at issue here and in In re Grand Jury Subpoena. Before
7 inquiring as to why, it is worth noting that the use of the term
8 "leak" to identify unauthorized disclosures in this context may
9 be unhelpful. It misleadingly suggests a system that is broken.
10 Some unauthorized disclosures may be harmful indeed. ^14 But
11 others likely contribute to the general welfare ^15 -- frequently,
12 I suspect, by improving the functioning of the very agencies or
13 other entities from which they came. Secretive bureaucratic
13
See The Morality of Consent, at 84-85: "Obviously the
occasions when a reporter will witness a so-called natural crime
in confidence, and the occasions when he will find it conformable
to his own ethical and moral standards to withhold information
about such a crime are bound to be infinitesimally few."
14
"Leaks similar to the crime suspected [in In re Grand
Jury Subpoena] (exposure of a covert agent) apparently caused the
deaths of several CIA operatives in the late 1970s and early
1980s, including the agency's Athens station chief." In re Grand
Jury Subpoena, 438 F.3d at 1173 (Tatel, J., concurring in
judgment).
15
"For example, assuming [Judith] Miller's prize-winning
Osama bin Laden series caused no significant harm, I find it
difficult to see how one could justify compelling her to disclose
her sources, given the obvious benefit of alerting the public to
then-underappreciated threats from al Qaeda." Id. at 1174.
-23-
1 agencies, like hermetically sealed houses, often benefit from a
2 breath of fresh air. ^16 As Judge Tatel explained, "although
3 suppression of some leaks is surely desirable . . . , the public
4 harm that would flow from undermining all source relationships
5 would be immense." In re Grand Jury Subpoena, 438 F.3d at 1168
6 (Tatel, J., concurring in judgment).
7 The "disorderly system," The Morality of Consent 80
8 (1975), by and large and until recently, allowed government (and
9 other entities jealous of their confidential information) to keep
10 secrets the way most of us keep ours: by not disclosing them, ^17
11 by employing people who will not disclose them, and by using
12 other means to protect them. If the secret was kept, as we
13 presume it usually was (though we obviously have no way to be
14 sure), the secret was safe. If secrets escaped, the government
15 could investigate within its own precincts to determine who was
16 responsible. Once disclosed, however, for better or worse, the
17 secret was a secret no longer, and that, for press and the
18 public, was the end of the matter.
16
"Sunlight is said to be the best of disinfectants;
electric light the most efficient policeman." Attributed to
Louis Brandeis, Other People's Money 62 (Nat'l Home Library
Foundation ed. 1933), in Buckley v. Valeo, 424 U.S. 1, 67 (1976)
(per curiam).
17
Within the limitations set by freedom of information and
other disclosure laws, of course.
-24-
1 This is not to say, of course, that the government
2 never declassifies material in the interest of public discourse,
3 or that an editor never declines to publish matters of public
4 interest because in his or her view, with or without consultation
5 with the government, greater injury to the public will likely be
6 occasioned by doing so. Professor Bickel, who described this
7 "system," put it first and probably best:
8 Not everything is fit to print. There is to
9 be regard for at least probable factual
10 accuracy, for danger to innocent lives, for
11 human decencies, and even, if cautiously, for
12 nonpartisan considerations of the national
13 interest. . . . But I should add that as I
14 conceive the contest established by the First
15 Amendment, and as the Supreme Court of the
16 United States appeared to conceive it in the
17 Pentagon Papers case [New York Times Co. v.
18 United States, 403 U.S. 713 (1971)], the
19 presumptive duty of the press is to publish,
20 not to guard security or to be concerned with
21 the morals of its sources.
22 The Morality of Consent 81. ^18
23 The result is a healthy adversarial tension between the
24 government, which may seek to keep its secrets within the law
25 irrespective of any legitimate interest the public may have in
18
Although stories about the instances of secrets that the
press has known and kept are published from time to time, see,
e.g., Scott Shane, A History of Publishing, and Not Publishing,
Secrets, N.Y. Times, July 2, 2006, at Sec. 4., p. 4, Col. 1, it
seems to me obvious that an unknowably large bulk of such secrets
are not recounted in these stories precisely because in those
instances the press chose to maintain the secrecy.
-25-
1 knowing them, and the press, which may endeavor to, but is
2 usually not entitled to, obtain and disseminate that information.
3 The government is entitled to keep things
4 private and will attain as much privacy as it
5 can get away with politically by guarding its
6 privacy internally; but with few exceptions
7 involving the highest probability of very
8 grave consequences, it may not do so
9 effectively. It is severely limited as to
10 means, being restricted, by and large, to
11 enforcing security at the source. . . .
12 [T]he power to arrange security at the
13 source, looked at in itself, is great, and if
14 it were nowhere countervailed it would be
15 frightening -- is anyway, perhaps -- since
16 the law in no wise guarantees its prudent
17 exercise or even effectively guards against
18 its abuse. But there is a countervailing
19 power. The press, by which is meant anybody,
20 not only the institutionalized print and
21 electronic press, can be prevented from
22 publishing only in extreme and quite dire
23 circumstances.
24 Id. at 79-80 (emphasis in original).
25 [W]e are content, in the contest between
26 press and government, with the pulling and
27 hauling, because in it lies the optimal
28 assurance of both privacy and freedom of
29 information. Not full assurance of either,
30 but maximum assurance of both.
31 Madison knew the secret of [it], indeed he
32 invented it. The secret is the separation
33 and balance of powers, men's ambition joined
34 to the requirements of their office, so that
35 they push those requirements to the limit,
36 which in turn is set by the contrary
37 requirements of another office, joined to the
38 ambition of other men. This is not an
39 arrangement whose justification is
-26-
1 efficiency, logic, or clarity. Its
2 justification is that it accommodates power
3 to freedom and vice versa. It reconciles the
4 irreconcilable.
5 . . . . [I]t is the contest that serves the
6 interest of society as a whole, which is
7 identified neither with the interest of the
8 government alone nor of the press. The best
9 resolution of this contest lies in an untidy
10 accommodation; like democracy, in Churchill's
11 aphorism, it is the worst possible solution,
12 except for all the other ones. It leaves too
13 much power in government, and too much in the
14 institutionalized press,[^19] too much power
15 insufficiently diffused, indeed all too
16 concentrated, both in government and in too
17 few national press institutions, print and
18 electronic. The accommodation works well
19 only when there is forbearance and continence
20 on both sides. It threatens to break down
21 when the adversaries turn into enemies, when
22 they break diplomatic relations with each
23 other, gird for and wage war . . . .
24 Id. at 86-87.
25 IV.
26 But as this litigation bears witness, the system is not
27 altogether self-regulating. When the "untidy accommodation"
28 between the press and the government breaks down, and the
29 government seeks to use legal coercion against the press to
30 identify its sources in and around government, the qualified
19
Whether the changes in "the institutional press" in the
age of the internet or the rise of global terrorism more than
thirty years since Professor Bickel wrote would in any way change
his analysis we can, of course, only guess.
-27-
1 reporter's privilege described in Petroleum Products and similar
2 cases may be inadequate to restore the balance. In "leak"
3 investigations, unlike in the typical situations with which
4 courts have dealt over the years, the reporter is more than a
5 third-party repository of information. He or she is likely an
6 "eyewitness" to the crime, alleged crime, potential crime, or
7 asserted impropriety. Once the prosecution has completed an
8 internal investigation of some sort, therefore, it may be in a
9 position to overcome the classic reporter's privilege because it
10 may well be able to make "a clear and specific showing that the
11 information [i.e., the identity of the source] is: highly
12 material and relevant, necessary or critical to the maintenance
13 of the claim [that someone known or unknown "leaked" the
14 information to a reporter], and not obtainable from other
15 available sources." Petroleum Prods., 680 F.2d at 7-8.
16 It seems clear to me that such a result does not strike
17 the proper balance between the needs of law enforcement and of
18 the press because, typically, it strikes no balance at all. The
19 government can argue persuasively that the "leak" cannot be
20 plugged without disclosure of the "leaker"/source by the
21 recipient reporter.
22 Recognizing this, Judge Tatel suggested revising the
23 traditional qualified privilege so that the court must also
-28-
1 "weigh the public interest in compelling disclosure, measured by
2 the harm the leak caused, against the public interest in
3 newsgathering, measured by the leaked information's value." In
4 re Grand Jury Subpoena, 438 F.3d at 1175 (Tatel, J., concurring
5 in judgment). ^20 This
20
A bill introduced by Sen. Richard Lugar (R-Ind.),
Chairman of the Senate Foreign Relations Committee, with
Judiciary Committee Chairman Sen. Arlen Specter (R-Penn.), Sen.
Christopher Dodd (D-Conn.), Sen. Lindsey Graham (R-S.C.) and Sen.
Chuck Schumer (D-N.Y.) -- The "Free Flow of Information Act of
2006" -- is interesting in this regard. S. 2831, 109th Cong., §
4 (2006). Under it, a journalist's disclosure of, among other
things, the identity of a confidential source
may be ordered only if a court, after
providing the journalist . . . notice and an
opportunity to be heard, determines by clear
and convincing evidence that,
(1) the attorney for the United States has
exhausted alternative sources of the
information;
(2) to the extent possible, the subpoena--
(A) avoids requiring production of a
large volume of unpublished material;
and
(B) is limited to--
(i) the verification of published
information; and
(ii) surrounding circumstances
relating to the accuracy of the
published information;
(3) the attorney for the United States has
given reasonable and timely notice of a
demand for documents;
(4) nondisclosure of the information would be
contrary to the public interest, taking into
account both the public interest in
compelling disclosure and the public interest
in newsgathering and maintaining a free flow
of information to citizens;
(5) there are reasonable grounds, based on an
alternative, independent source, to believe
-29-
1 may in some circumstances involve a substantive determination of
2 "whether [the reporters'] sources released information more
3 harmful than newsworthy. If so, then the public interest in
4 punishing the wrongdoers -- and deterring future leaks --
5 outweighs any burden on newsgathering, and no privilege covers
6 the communication . . . ." Id. at 1178.
7 One could quibble with the precise wording that Judge
8 Tatel employed. I think I might prefer something closer to the
9 Senate bill's formulation: whether "nondisclosure of the
10 information would be contrary to the public interest, taking into
11 account both the public interest in compelling disclosure and the
12 public interest in newsgathering and maintaining a free flow of
13 information to citizens." Free Flow of Information Act, S. 2831,
14 109th Cong., § 4(b)(4) (2006). But without some such adjustment
15 of the privilege in these circumstances, it threatens to become
that a crime has occurred, and that the
information sought is critical to the
investigation or prosecution, particularly
with respect to directly establishing guilt
or innocence; and
(6) the subpoena is not being used to obtain
peripheral, nonessential, or speculative
information.
Id. § 4(b) (emphasis added).
I quote the proposed language not, of course, because
it is the law -- obviously it is not and may never be -- but
because the use of the emphasized language indicates concern on
the part of the Senators with precisely the problem that we
address here -- that the inadequacy of the classic three-part
test in some circumstances requires an additional assessment of
the public interest in deciding whether to compel disclosure.
-30-
1 ineffective in accommodating the various interests at stake.
2 This is a common-law privilege capable of change and improvement
3 in the hands of successive judges in successive cases as they
4 seek to apply it to differing circumstances and changing
5 conditions.
6 V.
7 My disagreement with the majority opinion comes down to
8 this: I do not think that "whatever standard is used, the
9 privilege has been overcome as a matter of law on the facts
10 before us." Ante at [^20].
11 As I have explained, I think that overcoming the
12 qualified privilege in the "leak" context requires a clear and
13 specific showing (1) that the information being sought is
14 necessary -- "highly material and relevant, necessary or
15 critical," Petroleum Prods., 680 F.2d at 7-8; (2) that the
16 information is "not obtainable from other available sources," id;
17 and (3) that "nondisclosure of the information would be contrary
18 to the public interest, taking into account both the public
19 interest in compelling disclosure and the public interest in
20 newsgathering and maintaining a free flow of information to
21 citizens," Free Flow of Information Act, S. 2831, 109th Cong.,
22 § 4(b)(4) (2006). As noted, the government denies that it must
23 prove to anyone other than itself that it has met any part of any
24 test. Not surprisingly, then, the prosecutors' efforts to
-31-
1 demonstrate that they have overcome the qualified privilege,
2 before the district court and before us, have been limited at
3 best. ^21
4 As for the first part of the inquiry, I do not see how
5 a court can know whether the production of records divulging the
6 identity of one or more confidential sources is necessary to a
7 grand jury investigation without knowing what information the
8 grand jury has and is looking for and why -- much as the In re
9 Grand Jury Subpoena district and appeals courts were presented
21
As previously mentioned, 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 their privilege. (The remainder of the
brief contends that no privilege exists.) And the thrust of the
government's argument to us in this regard is not that the
district court should have granted judgment in its favor, as the
majority would, but that summary judgment should not have been
granted against it. See Gov't Br. at 61 ("[T]he district
court . . . erred in granting summary judgment to the plaintiff
given that the evidence, at the very least, demonstrated the
existence of disputed issues of fact material to the application
of the privilege."); id. at 63 ("At a minimum, the evidence
established the existence of genuine issues of material fact
precluding summary judgment."); id. at 65-66 ("[T]he district
court was obligated to resolve all ambiguities and draw al
reasonable inferences in favor of the government and against the
plaintiff in assessing the plaintiff's motion for summary
judgment . . . . The evidence before the district court was
sufficient, even in the absence of disclosures of evidence
protected by grand jury secrecy, to support a finding that any
applicable privilege had been overcome. At the very least, the
evidence established the existence of disputed issues of fact
precluding summary judgment in favor of the plaintiff." (citation
omitted; emphasis in original)).
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1 with evidence of such details in the course of their
2 deliberations. See In re Grand Jury Subpoena, 438 F.3d at 1180-
3 82 (Tatel, J., concurring in judgment) (discussing classified
4 material provided to the court).
5 As for the second part of the inquiry, as already
6 noted, the government does not so much as attempt to present any
7 evidence showing that it has exhausted possible alternative means
8 to identify the source or sources of the "leaks" other than by
9 obtaining the telephone records it now seeks or, of course, by
10 subpoenaing the reporters themselves. Its argument to us on this
11 score reads:
12 The district court also erred in concluding
13 that the information sought by the subpoenas
14 may have been available from other sources,
15 or that the government had failed to
16 establish that the information was not
17 available. The Affirmation of the United
18 States Attorney for the Northern District of
19 Illinois, who was personally involved in
20 conducting, and responsible for supervising,
21 the ongoing grand jury investigation, stated
22 that "the government had reasonably exhausted
23 alternative investigative means," and that
24 the Attorney General of the United States had
25 authorized the issuance of the challenged
26 subpoenas pursuant to the DOJ Guidelines. As
27 the district court acknowledged, the DOJ
28 Guidelines provided that subpoenas for
29 telephone records of reporters could only be
30 authorized based upon a finding by the
31 Attorney General that all reasonable
32 alternative sources had been exhausted.
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1 Gov't Br. at 63 (citations omitted). Instead of seeking to meet
2 the test for overcoming the qualified privilege, the government
3 asks us to take its word for it.
4 My colleagues nevertheless conclude that the government
5 has demonstrated exhaustion. According to them, "[t]here is
6 simply no substitute for the evidence [the reporters] have,"
7 because the "evidence as to the relationship of [the reporters']
8 source(s) and the leaks themselves to the informing of the
9 targets is critical to the present investigation." Ante at [^21].
10 To the extent the majority is saying that the government has
11 exhausted available alternatives because the identity of the
12 reporters' sources is "critical" information, this appears to
13 confuse the requirement that evidence be important with the
14 requirement that it be otherwise unavailable. However critical
15 the identity of the reporters' confidential sources may be, it is
16 known to at least one person besides the reporters: the source or
17 sources themselves. Because the government has offered no
18 evidence, other than the conclusory assertions of its own agents,
19 that it has sought to discover this information from anybody
20 other than the reporters, I do not see how we can conclude that
21 it has made "a clear and specific showing" that the information
-34-
1 is "not obtainable from other available sources." Petroleum
2 Prods., 680 F.2d at 8; ante at [20]. ^22
3 The third, "public interest," part of the test, too,
4 was not addressed directly by the government. ^23 Here, its
22
The majority asserts in footnote [5] of its opinion that
"ascertaining the reporters' knowledge of the identity of their
sources and of the events leading to the disclosure to the
targets of the imminent asset freezes/searches is clearly
essential to an investigation into the alerting of those
targets." Id. It also asserts that such knowledge "is not
obtainable from other sources" because "even a full confession by
the leaker would leave the record incomplete as to the facts of,
and reasons for, the alerting of the targets." Id. These
arguments do not seem to me to relate to the discovery request at
issue in this case, which is for telephone records that would no
more than disclose the identity of the journalists' sources and
the dates and times of contact.
23
The majority refers to the reporters' disclosure of the
government's plans to freeze the assets "and/or" search the
foundations' offices. Ante at [20] This characterization of the
government's allegations does not seem to me to be supported by
the record. As I read it, the evidence suggests only that Judith
Miller, who was covering the HLF story, was told of the
government's plan to freeze HLF's assets -- not "and/or" conduct
an FBI search. See Aff. of Judith Miller, dated Nov. 12, 2004,
at ¶ 9. She then "telephoned a HLF representative seeking
comment on the government's intent to block HLF's assets" Id. at
¶ 10 (emphasis added). Miller's December 4, 2001 published
story referred to the imminent freezing of the foundation's
assets but did not mention any search. Judith Miller, U.S. to
Block Assets It Says Help Finance Hamas Killers, N.Y. Times, Dec.
4, 2001, at A9.
Reporter Shenon similarly says in his affidavit that
on December 13, 2001, he "recall[s] contacting GRF [the 'Global
Relief Foundation'] for the purposes of seeking comment on the
government's apparent intent to freeze assets." Aff. of Philip
Shenon, dated Nov. 9, 2004, at ¶ 5. He does not mention an FBI
search of GRF, which he apparently did not report upon until
-35-
1 failure to do so is understandable inasmuch as the requirement
2 was not explicitly a part of our case law at the time this matter
3 was litigated in the district court. But the majority and the
4 government seem to be of the view, nonetheless, that the
5 disclosure in this case was of great consequences, and that
6 protection of the leaker's identity here is of little value to
7 the public in "maintaining a free flow of information." If that
8 is so, it would follow that the balance with respect to this
9 factor would tilt decidedly on the side of compelling disclosure.
10 I, for one, see no way that we can know based on the current
11 record.
after it happened. Philip Shenon, A Nation Challenged: The
Money Trail, N.Y. Times, Dec. 15, 2001, at B6.
Nothing in the sparse record suggests to me that either
reporter told HLF about, or even themselves knew about, an FBI
search before it happened. Nor does the government appear to
contend, let alone seek to establish, that Shenon and Miller knew
about imminent raids. Instead, it asserts only that the
reporters disclosed the impending asset freezes and that as a
result the foundations thought an FBI search to be likely.
There seems to me to be a significant difference
between informing the target of an investigation about a freeze
of its assets, presumably a white collar operation, and an FBI
raid, knowledge of which could place FBI agents in danger of life
and limb. It may be that a seasoned reporter would know that a
tip as to an asset freeze is tantamount to a tip as to an FBI
search. I have no idea whether that is true, but on the current
record, it is no more than conjecture.
-36-
1 The information that the assets of HLF and GRF were
2 being frozen was given to reporter Miller sometime before
3 December 3, 2001, and to reporter Shenon sometime before December
4 13, 2001. The searches of the two organizations' offices took
5 place on the mornings of December 4 and 14, respectively. It was
6 not until August 7, 2002, that the government approached the
7 Times seeking its cooperation with respect to this matter and its
8 consent to review the reporters' telephone records. The Times
9 declined. There was no further contact between the government
10 and the Times on this matter until July 12, 2004, nearly two
11 years later. After the flurry of communications between the
12 parties that followed, the plaintiff began this litigation on
13 September 29, 2004. It culminated in the district court's
14 decision of February 24, 2005. The government's appeal has been
15 pending in this Court since May 31, 2005. No request for
16 expedition has been made. Indeed, at the government's September
17 9, 2005, request, it received a one-month extension to file its
18 appellate brief.
19 There is, of course, nothing inherently wrong with the
20 government proceeding deliberately. To the contrary, it may be
21 laudably consistent with the goal of its own guidelines to
22 protect the newsgathering process when it can. Nonetheless, the
-37-
1 elapsed four and a half years does fairly raise the question of
2 just how significant the leaks were or are considered to be by
3 the government. I thus do not see how we can possibly address
4 the question posed by the third part of the qualified immunity
5 test -- a balancing of interests -- without the government's
6 demonstration as to precisely what its interests are.
7 I do not mean to suggest that the government could not
8 have made an adequate showing on each of the three parts of the
9 qualified privilege, much as it apparently did in In re Grand
10 Jury Subpoena. Nor do I mean to imply that it does not need the
11 information it seeks, has not in fact exhausted alternative
12 sources, or that finding, silencing, and seeking to prosecute or
13 punish the sources of the material that was disclosed is not
14 crucial. I have no basis on which to dismiss out of hand the
15 prosecutors' assertion that they did make a sufficient showing,
16 at least on the first two counts, to the then-Deputy Attorney
17 General. But the government was also required to make such a
18 demonstration to the district court, subject of course to our
19 review. It has declined to do so. For that reason, concluding
20 that the judgment of the district court must be affirmed, I
21 respectfully dissent.
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