A News Break from the Story - NY Times v. Gonzales

As there hasn't been any particular interest in the short story - I thought I'd return to news.

Yesterday, I attended the 2nd Circuit oral argument of NY Times v. (A-G) Gonzales. This particular case was appealed from a S.D.N.Y decision issuing a declaratory judgment against the government, forbidding it from issuing a subpoena to the telephone company. That subpoena would be requesting the telephone company to divulge a record of the calls between NY Times reporter Judy Miller and an undivulged source who leaked information about an impending bust of a Chicago-area suspected Islamic terrorist group.

Apparently, Miller had called the group after receiving this tip and basically warned them of the impending bust. Now the government wants to get a record of the calls as evidence for a grand jury it is convening in Chicago to prosecute the source of the leak to the Times.

There are two major areas of contention and legal relevance in this case. The first is basically a venue question that won't really be of interest to anyone unfamiliar with the law. In essence, the government argued that the Times inappropriately engaged in "forum-shopping" in bringing a declaratory judgment action in NY. The government claimed that the appropriate response to a challenged subpoena would be a motion to quash brought in the court which had issued the subpoena (in this case, a federal court in Chicago). The implication, here, is that the Times brought the action in NY because it knew that the judges were more favorable to an expansive reading of reporter privilege under the Supreme Court's Branzburg opinion.

The second issue in the case dealt with the question of reporter privilege and how far it extends under the Branzburg opinion. The 2nd Circuit, in a line of cases, had basically adopted the Powell concurrence as a more expansive reading of the privilege, rather than the White majority - a reading that the government did not agree with. But in an attempt to distinguish this set of facts, the government argued that here it was issuing a subpoena to a third party. Floyd Abrams (also counselor for the Times in the famous Pentagon Papers case) responded - I think persuasively - by saying that the telephone records are part and parcel of reporter privilege and without privilege being extended to those records, it would have no real strength.

There was some back and forth about a federal common law standard for reporter privilege. Abrams claimed that 49 out of 50 states have statutory shield laws for reporters and the government's failure to recognize a similar right puts the state of journalism in constant flux - because the reporter never knows what assurances he can give his source as there is a constant threat of a federal subpoena even with state protections. As my professor Jack Weiss mentions, however, that is still no reason to create a constitituonal protection for a privilege under the First Amendment. The government responded by repeating that there are 0 out of 50 states that protect third-party subpoena privilege.

It will be interesting to see what the Circuit decides to do. The lower court, of course, issued the judgment - so it is up to the Court of Appeals to reverse it. Interestingly, this entire issue may be moot, because the subpoena was to be issued to the telephone company, NY Times would have no reason to ever see it. As a courtesy the government had informed the Times of the subpoena but there is no way of really knowing whether the telephone company already received and complied with it. Thus, the government may very well already have the telephone records, in which case this whole argument is moot.

However, the sympathy of the Court during oral argument was fairly obvious. Judges Sack and Kearse seemed to favor the Times and the extension of reporter privilege under Branzburg. The delicate problem is that the forum-shopping aspect of the case looks suspicious and if the Supreme Court heard this case - it would almost certainly be reversed on that issue. It will be interesting to see what the judges decide.

Of note: 15 minutes into the argument Judy Miller hurried into the courtroom and sat directly behind me. She was staring daggers at Fleissner, the prosecutor for the government. As an aside, from the things I've read and heard about this woman - I just don't like her.