ACSBlog: The Blog of the American Constitution Society

by Martin Magnusson, Editor-at-Large

In 2001, the Department of Justice was investigating two Islamic charities – the Holy Land Foundation and the Global Relief Foundation –  that it suspected had ties to terrorist groups. The New York Times, which had learned of these DOJ activities through leaked information, began to research this news story. One day before federal authorities planned to raid the offices of these two charities, the New York Times contacted the charities for comment.

The DOJ has since contended that the way in which the New York Times reporters sought comment tipped off the charities that a government investigation was on-going and a raid was imminent. This obviously impaired the effectiveness of the search that the DOJ conducted the very next day and frustrated attempts to effectively freeze the assets of these organizations. Moreover, the DOJ contends that it imperiled the safety of federal agents who conducted the raids.

The DOJ thus opened an investigation to identify the government agents who leaked this information to the reporters. In the course of its investigation, it sought the phone records of two reporters for the New York Times. When asked to do so, the New York Times refused to disclose these phone records. The government responded by threatening to subpoena the phone company and the New York Times subsequently filed suit in federal district court and won a declaratory judgment blocking that move. In response to the declaratory judgment, its editorial board noted that the media has an important obligation to ensure an informed citizenry:

The judge, Robert Sweet, reasoned, correctly, that the subpoenas for the phone records were the functional equivalent of demanding testimony from the reporters themselves, and he took note of the important role of confidential sources in news investigations of the Watergate, Iran-contra, Monica Lewinsky and Abu Ghraib scandals.

The government appealed Judge Sweet's decision to the Second Circuit. In August, a divided panel of the Second Circuit reversed, holding that the reporters were not entitled to shield their sources under the First Amendment or common law precedents. Its opinion noted that

Learning of imminent law enforcement asset freezes/searches and informing targets of them is not an activity essential, or even common, to journalism. Where such reporting involves the uncovering of government corruption or misconduct in the use of investigative powers, courts can easily find appropriate means of protecting the journalists involved and their sources.

In response to this opinion, the New York Times filed a cert petition with the Supreme Court. It also asked the Supreme Court to delay any access to the phone records until it decides whether to hear the case. The DOJ opposed this request, noting that important statutes of limitations expire on December 13 and 14, making time of the essence.

The New York Times' request was recently denied in a cursory court order. As a result, federal prosecutors will be able to access the reporters' phone records.

Many conservatives have lauded this decision, even arguing that the New York Times made Americans more susceptible to acts of terrorism:

The Global Relief Foundation (GRF) wasn't some beneficent neighborhood charity sending shoes and Muslim Barbie dolls to poor kids overseas. It was designated a terror-financing organization in October 2002 by the Treasury Department, which reported that GRF “has connections to, has provided support for, and has provided assistance to Usama Bin Ladin, the al Qaida Network, and other known terrorist groups.”

But Floyd Abrams, a lawyer for the New York Times, fears that allowing prosecutorial access to these phone records will undermine the relationship that allows journalists to gain access to vitally important information, thus undermining the ability of voters to monitor their own government:

If the government is permitted to proceed to scrutinize the telephone records of The New York Times and its journalists, it will be in a position to identify literally scores of confidential sources, thus imperiling both the ability of the press to gather the news and of the public to learn it.