August 2, 2006

"Learning of imminent law enforcement... and informing targets of them is not an activity essential, or even common, to journalism."

So wrote Second Circuit Judge Ralph Winter, rejecting claims of privilege and granting federal prosecutors access to the phone records of two NYT reporters.
The case arose from a Chicago grand jury’s investigation into who told the two reporters, Judith Miller and Philip Shenon, about actions the government was planning to take against two Islamic charities, Holy Land Foundation in Texas and Global Relief Foundation in Illinois. Though the government contended that calls from the reporters tipped off the charities to impending raids and asset seizures, the investigation appears to be focused on identifying the reporters’ sources. No testimony has been sought from the reporters, and there has been no indication that their actions are a subject of the investigation.
The NYT argued that the reporters “were conducting their journalistic duties by getting reaction to an ongoing story.” It would seem that this could always be said in the case where a reporter's inquiry tips off a target of law enforcement.


JSF said...

It always comes back to how much power the First Amendment people have vs. the power of the State. The New York Times believes it has more power then even the State. My question to the Times is, you release all this information and editorialize what cannot be done, then how can the administration stop an attack within our borders? Does Frank Rich employ some troops that we do not know of?

KCFleming said...

Forget Fitzmas, I want to see some NYTimes reporters do the frogmarch for treason.

When did the fourth estate decide they needed to act as a fifth column to maintain their objectivity?

Richard Dolan said...

There are interesting parallels between the cases where journalists are forced to give up their sources, notes, outtakes and the like; and the campaign finance cases. In both situations, the constitutional balance under the First Amendment (at least as currently struck by the SCOTUS) sharply limits the intances where any prior restraint on speech may be ordered. The Court has even accepted the notion that money (in the form of political contributions) is a form of indirect speech, and thus cannot be so tightly regulated as to preclude effective political speech. By the same token, however, the beneficiaries of that constitutional protection can be subjected to invasive disclosure requirements (reporters, as to sources, etc., pursuant to grand jury subpoena and sometimes an ordinary civil subpoena; politicians, as to supporters and sources of funding). In both contexts, the Court has rejected the argument that the constitutionally protected nature of the core activity of journalists and politicians precludes the Gov't from burdening those activities with disclosure obligations and, in the case of politicians, contribution limitation restrictions.

Most editorialists are big fans of campaign finance restrictions, but are much less enamoured of the disclosure obligations of journalists. Funny how that worked out. But there's never been a lot of introspection on editorial pages.

J said...

"When did the fourth estate decide they needed to act as a fifth column to maintain their objectivity?"

My greater fear is, when will the public start to view journalists as actively supporting the enemy and thus legitimate targets in war.

Unknown said...

I love the line...quite understated and witty. So now Judy Miller joins the ranks of disgraced reporters. Have fun in media Siberia.

Can you imagine the outrage in the newsroom? You mean...we're not all there is between the BushHitler and freedom?!!