The New York Times Co. v. Gonzales, Docket No. 05-2639.

459 F.3d 160

THE NEW YORK TIMES COMPANY, Plaintiff-Appellee, v. Alberto GONZALES, in his official capacity as Attorney General of the United States, and the United States of America, Defendants-Appellants.

Docket No. 05-2639.

United States Court of Appeals, Second Circuit.

Argued: February 13, 2006.

Decided: August 1, 2006.

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James P. Fleissner, Special Assistant United States Attorney (Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, Debra Riggs Bonamici, Daniel W. Gillogly, Assistant United States Attorneys, Chicago, Illinois, on the brief), for Defendants-Appellants.

Floyd Abrams, Cahill Gordon & Reindel LLP, New York, New York (Susan Buckley, Brian Markley, Cahill Gordon & Reindel, New York, New York, on the brief; George Freeman, New York Times Company, New York, New York, of counsel), for Plaintiff-Appellee.

Before: KEARSE, WINTER, and SACK, Circuit Judges.

Judge SACK dissents in a separate opinion.

WINTER, Circuit Judge.

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

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

Although dismissing two of the Times' claims,¹ Judge Sweet granted the Times' motion for summary judgment on its claims that disclosure of the records was barred by both a common law and a First Amendment reporter's privilege. He further held that, although the privileges were qualified, the government had not offered evidence sufficient to overcome them.

We vacate and remand. We hold first that whatever rights a newspaper or reporter has to refuse disclosure in response to a subpoena extends to the newspaper's or reporter's telephone records in the possession of a third party provider. We next hold that we need not decide whether a common law privilege exists because any such privilege would be overcome as a matter of law on the present facts. Given that holding, we also hold that no First Amendment protection is available to the Times on these facts in light of the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

BACKGROUND

A federal grand jury in Chicago is investigating how two Times reporters obtained information about the government's imminent plans to freeze the assets and/or search the offices of Holy Land Foundation ("HLF") and Global Relief Foundation ("GRF") on December 4 and 14, 2001, respectively, and why the reporters conveyed that information to HLF and GRF by seeking comment from them ahead of the search. Both entities were suspected of raising funds for terrorist activities. The government alleges that, "[i]n both cases, the investigations — as well as the safety of FBI agents participating in the actions — were compromised when representatives of HLF and GRF were contacted prior to the searches by New York Times reporters Philip Shenon and Judith Miller, respectively, who advised of imminent adverse action by the government." The government maintains that none of its agents were authorized to disclose information regarding plans to block assets or to search the premises of HLF or GRF prior to the execution of those actions. The unauthorized disclosures of such impending law enforcement actions by a government agent can constitute a violation of federal criminal law, e.g., 18 U.S.C. § 793(d) (prohibiting communication of national defense information to persons not entitled to receive it), including the felony of obstruction of justice, 18 U.S.C. § 1503(a).

On October 1, 2001, the Times published a story by Miller and another reporter that the government was considering adding GRF to a list of organizations with suspected ties to terrorism. Miller has acknowledged that this information was given to her by "confidential sources." On December 3, 2001, Miller "telephoned an HLF representative seeking comment on the government's intent to block HLF's assets." The following day, the government searched the HLF offices. The government contends that Miller's call alerted HLF to the impending search and led to actions reducing the effectiveness of the search. The Times also put an article by Miller about the search on the Times' website and in late-edition papers on December 3, 2001, the day before the search. The article claimed to be based in part on information from confidential sources. The Times also published a post-search article by Miller in the December 4 print edition.

In a similar occurrence, on December 13, 2001, Shenon "contact[ed] GRF for the purposes of seeking comment on the government's apparent intent to freeze its assets." The following day, the government searched GRF offices. The government has since stated that "GRF reacted with alarm to the tip from [Shenon], and took certain action in advance of the FBI search." It has claimed that "when federal agents entered the premises to conduct the search, the persons present at Global Relief Foundation were expecting them and already had a significant opportunity to remove items." Shenon reported the search of the GRF offices in an article published on December 15, 2001, the day after the government's search.

After learning that the government's plans to take action against GRF had been leaked, Patrick J. Fitzgerald, the United States Attorney for the Northern District of Illinois, opened an investigation to identify the government employee(s) who disclosed the information to the reporter(s) about the asset freeze/search. On August 7, 2002, Fitzgerald wrote to the Times and requested a voluntary interview with Shenon and voluntary production of his telephone records from September 24 to October 2, 2001, and December 7 to 15, 2001. Fitzgerald's letter stated that "[i]t has been conclusively established that Global Relief Foundation learned of the search from reporter Philip Shenon of the New York Times";² the requested interview and records were therefore essential to investigating "leaks which may strongly compromise national security and thwart investigations into terrorist fundraising." Anticipating the Times' response, the letter argued in strong language that the First Amendment did not protect the "potentially criminal conduct" of Shenon's source or Shenon's "decision . . . to provide a tip to the subject of a terrorist fundraising inquiry." The Times refused the request for cooperation on the ground that the First Amendment provides protection against a newspaper "having to divulge confidential source information to the Government."

On July 12, 2004, Fitzgerald wrote again to the Times and renewed the request for an interview with Shenon and the production of his telephone records. He enlarged the request to include an interview with Miller and the production of her telephone records from September 24 to October 2, 2001, November 30 to December 4, 2001, and December 7 to 15, 2001. Fitzgerald stated that the investigation involved "extraordinary circumstances" and that any refusal by the Times to provide the pertinent information would force him to seek the telephone records from third parties, i.e., the Times' telephone service providers. The Times again refused the request and questioned whether the government had exhausted all alternative sources. The Times argued that turning over the reporters' telephone records would give the government access to all the reporters' sources during the time periods indicated, not just those relating to the government's investigation. The Times believed that such a request "would be a fishing expedition well beyond any permissible bounds."

The Times also contacted its telephone service providers and requested that they notify the Times if they received any demand from the government to turn over the disputed records, giving the Times an opportunity to challenge the government's action. The telephone service providers declined to agree to that course of action.

Fitzgerald responded with a letter stating that he had "exhausted all reasonable alternative means" of obtaining the information but that he was not obligated to disclose those steps to the Times nor did he "intend to engage in debate by letter." Fitzgerald, however, invited the Times to contact him if it "wish[ed] to have a serious conversation . . . to discuss cooperating in this matter."

On August 4, 2004, attorneys Floyd Abrams and Kenneth Starr wrote a letter on behalf of the Times to James Comey, then the Deputy Attorney General. Abrams and Starr requested an opportunity to discuss Fitzgerald's efforts to obtain the telephone records of Shenon and Miller and reaffirmed that the Times believed that it was not required to divulge the disputed records. The letter also requested...