Breathe a sigh of relief: NYT loses in SCOTUS again on reporters' privilege

MONDAY, NOVEMBER 27, 2006
ORDER IN PENDING CASE
06A525 THE NEW YORK TIMES COMPANY
V. GONZALES, ATT’Y GEN., ET AL.

The application for stay of mandate of the United States Court of Appeals for the Second Circuit pending the filing and disposition of a petition for a writ of certiorari, presented to Justice Ginsburg and by her referred to the Court, is denied.

Of this very brief order yesterday from the United States Supreme Court, the losing lawyer, eminent First Amendment specialist Floyd Abrams, was paraphrased by his client as having said "the decision was a battle lost in a larger war." But on this occasion, Mr. Abrams is absolutely, positively wrong.

This decision was a battle won for the United States on the home front in the global war on terrorism. And it's another fine example of how the mainstream media, led by the New York Times, is absolutely willing to let you be blown to bits by terrorists in order to protect your "right to know."

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Let's boil this down. Here, in two thorough paragraphs, is how the United States Court of Appeals for the Second Circuit explained the background and the issues:

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.

Here it is in two sentences: The FBI was prevented from freezing terrorists' assets and catching terrorists because somebody leaked what they were about to do to the New York Times, and the NYT proceeded to warn the terrorists themselves! Now the NYT says that because it was just promoting the "public's right to know" and the First Amendment, its phone company should be immune from having to give evidence to permit a grand jury to decide whether any crimes were committed as part of this debacle.

And here it is in a mere ten words: Someone committed treason, and the NYT is okay with that.

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The Second Circuit, fortunately, wasn't okay with that. Even though the Supreme Court has never recognized one, the Second Circuit played along with the notion that there might be some sort of federal common-law privilege for reporters to conceal their "confidential sources." But like every other court (state or federal) to ever consider the question, it pointed out that the privilege is not absolute, but only "qualified" — meaning that sometimes it can be overcome. And it was here:

There is therefore a clear showing of a compelling governmental interest in the investigation, a clear showing of relevant and unique information in the reporters' knowledge, and a clear showing of need. No grand jury can make an informed decision to pursue the investigation further, much less to indict or not indict, without the reporters' evidence. It is therefore not privileged.

In other words, even if there might be special rules that let reporters refuse to obey lawful subpoenas sometimes, this ain't one of those times.

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Yesterday's SCOTUS ruling comes in an odd procedural context that neither the NYT's own news story nor the WaPo's comparable report explained very well — so I'll try.

The Second Circuit's decision was rendered on August 1st, but the NYT of course wanted to keep going up the appellate chain, and took the steps needed to continue that process. The NYT asked that in the meantime, Mr. Fitzgerald and the grand jury hold their damned horses, and that the effect of the Second Circuit's ruling be postponed — the technical legal terminology being to "stay the Second Circuit's mandate." The Second Circuit wouldn't do that itself, so the NYT went to the "Circuit Justice" — that is, the member of the U.S. Supreme Court with emergency supervisory authority over the Second Circuit in particular, which is Associate Justice Ruth Bader Ginsburg — and asked her to stay the Second Circuit's mandate.

Mr. Fitzgerald, however, was pretty insistent that he not be required to continue holding his horses:

The Justice Department told the Supreme Court on Friday [in response to the NYT's motion to stay the Second Circuit's mandate] that Mr. Fitzgerald was under enormous time pressure. "The statute of limitations," the government said, "will imminently expire on Dec. 3 and 13, 2006, on certain substantive offenses that the grand jury is investigating."

Now, if the NYT could ever hope to find a friend on the SCOTUS, it's Justice Ruth Bader "ACLU" Ginsburg. My conservative non-lawyer friends sometimes ask me how I can respect Justice Ginsburg even though I almost never agree with her legal opinions, and this is a good example of why that's so: Whatever her personal inclinations may have been, in this case she obviously recognized that it just wouldn't be appropriate for her to make this ruling alone — even though she had the nominal power to do so. Instead, as yesterday's order recites, she referred the NYT's request to stay the Second Circuit's mandate to the full Supreme Court. And the full Supreme Court refused that request, without any dissents. So the Second Circuit's mandate will promptly issue (or may already have, as of yesterday), and Mr. Fitzgerald's FBI agents will be poring over those phone records toot sweet.

The case isn't over. The NYT will still ask the Supreme Court to review the merits of the Second Circuit's decision through a petition for a writ of certiorari. The Supreme Court might agree to hear the case — although that would surprise me very much. And yesterday's ruling doesn't necessarily mean that neither Justice Ginsburg nor any other member of the Supreme Court would vote to overturn the Second Circuit's ruling if cert were granted and the Supreme Court thereby agreed to review the Second Circuit's decision on its merits. In fact, if I had to guess, I'd guess that she and Justice Stevens almost certainly would. That there were no dissents yesterday — not even from Justices Ginsburg or Stevens — may only mean that there aren't five Justices who are dad-gummed eager to use this particular case to create a new federal common-law privilege for reporters to shield their confidential sources. But maybe four Justices can be persuaded to vote to grant certiorari, and maybe five can be persuaded to create a privilege that Congress has so far refused to.  Or so Mr. Abrams and the NYT will hope.

And in due course, Mr. Abrams will write another fine petition for a writ of certiorari toward that end. But whatever he says for his client or other MSM outlets to reprint, I'll bet he's not going to be holding his breath waiting for cert to be granted. Not in this case, not on these facts. Not to protect whoever it was who broke the law to protect terrorists. Someone rabidly pro-media could at least argue with a semi-straight face that chasing down whoever supposedly "outed" Valerie Plame wasn't such a really big deal, and that the "public's need to know" (as purportedly protected by reporters' promises to keep sources confidential) ought to trump that search for evidence.

But not many people or entities besides the New York Times have the unmitigated chutzpah — combined with a breathtaking, and breathtakingly dangerous, childlike naïvety — to argue that someone inside the government ought to be able to tip off the NYT before an FBI raid, and that the NYT's reporters ought to be able to tip off the terrorists, and then that those criminally stupid tipsters, like the terrorists, should just be able to get away with it.

"I'll bet this will make Bush look bad," the tipsters probably thought. And that, in their eyes, is a goal that can justify anything, including another 9/11 or worse.