Freedom of the Press

The right, guaranteed by the First Amendment to the U.S. Constitution, to gather, publish, and distribute information and ideas without government restriction; this right encompasses freedom from prior restraints on publication and freedom from censorship.

The New York Times Company v. Gonzales

Though journalists believe they have the First Amendment right to protect their confidential sources, the courts have made clear that in certain circumstances reporters must surrender this information. The courts are particularly reluctant to deny prosecutors access to press records when serious crimes are under investigation. This reluctance was expressed again in The New York Times Company v. Gonzales, 459 F.3d 160 (2nd Cir. 2006), where the Second Circuit Court of Appeals ruled that reporters' telephone records that are in the hands of telephone providers could be subpoenaed by a federal prosecutor. The court held that the First Amendment's guarantee of freedom of the press did not protect these records because the reporters may have obstructed justice.

Chicago U.S. Attorney Patrick Fitzgerald empanelled a grand jury to investigate how two New York Times reporters obtained information about the government's plan to freeze the assets and search the offices of Holy Land Foundation (HLF) and Global Relief Foundation (GRF) on December 4 and 14, 2001, respectively. Fitzgerald also wanted to know why the reporters, Judith Miller and Philip Shenon, disclosed this information to the two foundations by seeking comment from them ahead of the search. The government suspected the foundations of terrorist activities in the wake of the September 11, 2001 attacks on the World Trade Center and the Pentagon. Because of the reporters' disclosures the government alleged that its investigation was compromised. In addition, Fitzgerald noted that no government agent was authorized to disclose this information prior to the execution of the searches. Such an unauthorized disclosure can subject a government agent to prosecution for obstruction of justice.

Judith Miller published a story on October 1, 2001 that stated the government was considering adding GRF to a list of organizations with suspected ties to terrorism. Miller later acknowledged that she received this information from confidential sources. On December 3, 2001 Miller called an HLF representative for comment on the government's intent to freeze HLF's assets. The next day the government searched the HLF offices. The government alleged that Miller's call put HLF on notice that a search was imminent and that HLF took actions to reduce the effectiveness of the search.

Philip Shenon contacted GRF on December 13, 2001 seeking comment on the government's apparent intent to freeze its assets. The next day government agents searched the GRF offices. Fitzgerald later stated the GRF acted with alarm to Shenon's tip and took certain actions before the search. When agents entered the offices to begin the search it was apparent that GRF employees were expecting them and had sufficient time to remove items.

Fitzgerald then began his investigation into who leaked the information to the reporters. In August 2002 he wrote New York Times, requesting a voluntary interview with Shenon and voluntary production of Shenon's telephone records for one week in late September and one week in December. In his letter Fitzgerald told the newspaper that the leaks may have compromised national security and hurt the government's attempts to investigate terrorist organizations. The newspaper refused the requests. Fitzgerald renewed his requests in July 2004 and enlarged it, asking for Miller's phone records from the pertinent times in 2001. The Times again refused and eventually filed a suit in New York federal district court in September 24, asking for a declaratory judgment that the reporters' telephone records could not be subpoenaed by Fitzgerald because of the First Amendment. The district court ruled in favor of the Times. The government then appealed to the Second Circuit Court of Appeals.

The three-judge panel ruled 2-1 in favor of the government's right to subpoena the telephone records. Judge Ralph Winter, writing for the majority, agreed with the newspaper that under Second Circuit precedent the government does not have an absolute right to subpoena third-party providers of phone records. If the third party plays an "integral role" in reporters' work and the reporters are granted the privilege of not disclosing confidential sources, then the third party's information is privileged. Therefore the key issue was whether Miller and Shenon could successfully assert such a privilege. Judge Winter concluded that the reporters did not have a common law or First Amendment privilege to withhold information. The government had a "compelling interest in maintaining the secrecy of imminent asset freezes or searches lest the targets be informed and spirit away those assets or incriminating evidence." Apart from the importance of maintaining secrecy was "a set of facts—informing the targets of those impending actions—that may constitute a serious obstruction of justice." A grand jury would not be able to pursue the investigation further without the reporters' evidence. Freedom of the press was in no danger because the leaking of imminent law enforcement searches and freezes and informing the targets of these actions "is not an actively essential, or even common, to journalism." In addition, the grand jury was not seeking the testimony of the two reporters.