New York Times Co. v. Gonzales, No. 05-2639 (2nd Cir. 9/20/2006)

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The New York Times Co. v. Gonzales.

No. 05-2639.

United States Court of Appeals, Second Circuit.

September 20, 2006.

SACK, Circuit Judge, dissenting:

For reasons outlined in Part I below, I agree with much of the majority opinion. I ultimately disagree with the result the majority reaches, however, and therefore respectfully dissent.

I.

Declaratory judgment can in some circumstances — and does in these — serve as a salutary procedural device for testing the propriety of a government attempt to compel disclosure of information from journalists. It is indeed questionable whether, in the case before us, the plaintiff could have obtained effective judicial review of the validity of the government's proposed subpoena of the plaintiff's phone records without it. The Court holds today that contrary to the government's view, a member of the press may in appropriate circumstances obtain a declaratory judgment to protect the identity of his or her sources of information in the course of a criminal inquiry. It makes clear, moreover, that in the grand jury context, such an action need not be brought in a jurisdiction in which the grand jury sits. I agree.

The Court's decision also confirms the ability of journalists to protect the identities of their sources in the hands of third-party communications-service providers — in this case, one or more telephone companies. Without such protection, prosecutors, limited only by their own self-restraint, could obtain records that identify journalists' confidential sources in gross and virtually at will. Reporters might find themselves, as a matter of practical necessity, contacting sources the way I understand drug dealers reach theirs — by use of clandestine cell phones and meetings in darkened doorways. Ordinary use of the telephone could become a threat to journalist and source alike. It is difficult to see in whose best interests such a regime would operate.

More fundamentally still, the Court today reaffirms the role of federal courts in mediating between the interests of law enforcement in obtaining information to assist their discovery and prosecution of violations of federal criminal law, and the interests of the press in maintaining source-confidentiality for the purpose of gathering information for possible public dissemination. For the question at the heart of this appeal is not so much whether there is protection for the identity of reporters' sources, or even what that protection is, but which branch of government decides whether, when, and how any such protection is overcome.

The parties begin on common ground. The government does not dispute that journalists require substantial protection from compulsory government processes that would impair the journalists' ability to gather and disseminate the news. Since 1970, two years before the Supreme Court decided Branzburg v. Hayes, 408 U.S. 665 (1972), United States Department of Justice regulations have set forth a departmental policy designed to protect the legitimate needs of the news media in the context of criminal investigations and prosecutions.

The Department of Justice guidelines are broadly worded. The preamble states:

Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues. This policy statement is thus intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function.

28 C.F.R. § 50.10. The guidelines require that "the approach in every case must be to strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice," id. § 50.10(a); that "[a]ll reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media," id. § 50.10(b); and that "[i]n criminal cases, [before a subpoena is served on a member of the media,] there should be reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation—particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information," id. § 50.10(f)(1).

In 1980, the guidelines were extended to provide that "all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media." Id. Subsection (g) of the guidelines reads in part:

In requesting the Attorney General's authorization for a subpoena for the telephone toll records of members of the news media, the following principles will apply:

(1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period. In addition, prior to seeking the Attorney General's authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section [quoted above].

....

Id. § 50.10(g).

The government has made clear that it considers itself bound by these guidelines, see, e.g., Gov't Br. at 63, and asserts that it has abided by them in this case, see, e.g., id.; Letter of James Comey, Deputy Attorney General, to Floyd Abrams, attorney for the plaintiff, dated Sept. 23, 2004 (referring to the Department as "[h]aving diligently pursued all reasonable alternatives out of regard for First Amendment concerns, and having adhered scrupulously to Department policy").

While the government argues strenuously that the Department's guidelines do not create a judicially enforceable privilege,¹ the substantive standards that they establish as Department policy are strikingly similar to the reporter's privilege as we have articulated it from time to time. For example, in In re Petroleum Products Antitrust Litigation, 680 F.2d 5, 7-8 (2d Cir.) (per curiam) (civil case), cert. denied 459 U.S. 909 (1982) (quoted by the majority, ante at [20]), we said: "[D]isclosure [of the identity of a confidential source] may be ordered only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources." This is also the standard urged upon us by the plaintiff and apparently adopted by the district court. See N.Y. Times Co. v. Gonzales, 382 F. Supp. 2d 457 (S.D.N.Y. 2005) ("N.Y. Times") (passim). The guidelines' test is thus very much like the test that the plaintiff asks us to apply.

The primary dispute between the parties, then, is not whether the plaintiff is protected in these circumstances, or what the government must demonstrate to overcome that protection, but to whom the demonstration must be made. The government tells us that under Branzburg, "except in extreme cases of [prosecutorial] bad faith," Tr. of Oral Argument, Feb. 13, 2006, at 12, federal courts have no role in monitoring its decision as to how, when, and from whom federal prosecutors or a federal grand jury can obtain information. Apparently based on that supposition, the government did not make a serious attempt to establish to the district court's satisfaction that the standard for requiring disclosure had been met. Neither has it argued forcefully to us that it in fact did so.² For example, with respect to the government's assertion that it has "pursued all reasonable alternative investigation steps" to source disclosure (guidelines formulation) or that the information it needs is "not obtainable from other available sources" (Petroleum Products formulation), the government tells us only that:

The Affirmation of the United States Attorney for the Northern District of Illinois, who was personally involved in conducting, and responsible for supervising, the ongoing grand jury investigation, stated that "the government had reasonably exhausted alternative investigative means," and that the Attorney General of the United States had authorized the issuance of the challenged subpoenas pursuant to the DOJ Guidelines.

Gov't Br. at 63.³ The government thus takes the position that it is entitled to obtain the Times' telephone records in order to determine the identity of its reporters' confidential sources because it has satisfied itself that the applicable standard has been met.

I do not think, and I read the majority opinion to reject the proposition, that the executive branch of government has that sort of wholly unsupervised authority to police the limits of its own power under these circumstances. As Judge Tatel, concurring in judgment in In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir.) ("In re Grand Jury Subpoena"), cert. denied, 125 S. Ct. 2977 (2005), reissued as amended, 438 F.3d 1141 (D.C. Cir. 2006), observed not long ago:

[T]he executive branch possesses no special expertise that would justify judicial deference to prosecutors' judgments about the relative magnitude of First Amendment interests. Assessing those interests traditionally falls within the competence of courts. Indeed, while the criminality of a leak and the government's decision to press charges might well indicate the leak's harmfulness — a central concern of the balancing test — once prosecutors commit to pursuing a case they naturally seek all useful evidence....