[Dean's World] Ron Coleman: Floyd Abrams loses another one

[notify at powerblogs.com]

Posted by Ron Coleman:
Floyd Abrams loses another one
http://www.deanesmay.com/posts/1154965773.shtml


   We've [1]never been big fans of the "[2]press shield," and I say that
   because I like the First Amendment. Now the Second Circuit court of
   Appeals has once again rebuffed a press attempt to shield information
   sought by the government in connection with a federal criminal
   investigation -- where the criminals may have been reporters tipping
   off supporters of terrorists of an impending raid.

   The court summarizes the factual and procedural setting and its
   holding. I have added links and some comments:

     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 [Philip Shenon and Judith Miller] 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, Judge Sweet granted
     the Times' [3]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 [4]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. [This part is
     favorable to the Times. It means you don't waive confidentiality of
     your phone records just because a third person administers your
     them.] 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. [That's not good for the
     Times.] 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 [5]Branzburg v. Hayes, 408 U.S. 665
     (1972). [That's bad for the Times, but not new.]

   Read the whole opinion in[6] The New York Times Co. v. Gonzales here.

References

   1. http://www.likelihoodofconfusion.com/?p=26
   2. http://likelihoodofconfusion.blogspot.com/2005/02/dc-circuit-press-not-shielded.html
   3. http://www.lectlaw.com/def2/m043.htm
   4. http://www.lectlaw.com/def2/p084.htm
   5. http://www.oyez.org/oyez/resource/case/48/
   6. http://www.likelihoodofconfusion.com/?page_id=553