The New York Times Co. v. Gonzales

Decision Date02 March 2005
Docket NumberNo. 04 Civ. 7677(RWS).,04 Civ. 7677(RWS).
Citation382 F.Supp.2d 457
PartiesThe NEW YORK TIMES COMPANY, Plaintiff, v. Alberto GONZALES, in his official capacity as Attorney General of the United States, and The United States of America, Defendants.
CourtU.S. District Court — Southern District of New York

Cahill Gordon & Reindel, New York, NY, By: Floyd Abrams, Susan Buckley, Brian Markley, for Plaintiff, of counsel.

George Freeman, The New York Times Company, Honorable Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, Chicago, IL, By: Daniel W. Gillogly, James P. Fleissner, Debra Riggs Bonamici, Stuart D. Fullerton, Assistant United States Attorneys, for Defendant, of counsel.


SWEET, District Judge.

The defendants Alberto Gonzales ("Gonzales") in his official capacity as Attorney General of the United States1 and the United States of America (collectively, the "government") have moved under Rule 12, Fed.R.Civ.P., to dismiss the complaint of The New York Times Company ("The Times") seeking a declaratory judgment concerning the confidentiality of telephone records for two of its reporters, which records are held by a third-party telephone company. The Times has moved for summary judgment under Rule 56, Fed.R.Civ.P., seeking certain of the relief sought in its complaint. The government has cross-moved for summary judgment dismissing the complaint. Upon the facts found to be undisputed and the conclusions of law set forth below, the government's motion to dismiss is denied, its cross-motion for summary judgment is granted in part and denied in part, and the motion of The Times is granted in part and denied in part.

The Issues Presented

These motions present competing considerations of the role of secrecy in our society. Secrecy may well be seen as the enemy of freedom when it conceals facts important to public understanding.2 Yet here, both sides seek to enforce secrecy, albeit from dramatically different perspectives. The government, through a grand jury proceeding, seeks to investigate, and perhaps to prosecute, an alleged breach of a government secret, namely, the timing of the seizure of assets and Federal Bureau of Investigation ("FBI") searches of the offices of two Islamic charities in the fall of 2001. The Times, in opposing the government's efforts, seeks to keep confidential the identity of the sources known to two of its reporters who wrote articles during the same period.

At issue is the proper relationship between two vitally important aspects of our democracy: the free press on the one hand and the fair and full administration of criminal justice on the other. Secrecy in government appears to be on the increase. See, e.g., Pete Weitzel, Freedom of Information: A Zeal for Secrecy, The American Editor, May-June-July 2004, at 4; Bill Moyers, Journalism Under Fire, Address at the Society of Professional Journalists 2004 National Convention (Sept. 11, 2004), available at spch.pdf (last visited Feb. 22, 2005).3

This development may well impact the ability of the press to report the news. See, e.g., The Reporters Committee for Freedom of the Press, Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public's Right to Know (5th ed.2004), available at http:// (last visited Feb. 22, 2005).

The free press has long performed an essential role in ensuring against abuses of governmental power. Indeed,

[T]he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve.

Mills v. Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) (observing that "[t]he Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, to play an important role in the discussion of public affairs") (internal citation omitted). Informed public opinion, as our Supreme Court has recognized, "is the most potent of all restraints upon misgovernment...." Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660 (1936); see also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) ("Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally."); New York Times Co. v. United States, 403 U.S. 713, 717, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (Black, J., concurring) ("In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy.... The press was protected so that it could bare the secrets of government and inform the people.").

In order to gather information on sensitive topics, reporters, particularly those investigating stories that implicate our government and public officials, often depend upon confidential sources. In the words of Max Frankel, the former Executive Editor of The Times, offered some thirty years ago in connection with the Pentagon Papers case:4

In the field of foreign affairs, only rarely does our Government give full public information to the press for the direct purpose of simply informing the people. For the most part, the press obtains significant information bearing on foreign policy only because it has managed to make itself a party to confidential materials, and of value in transmitting those materials from government to other branches and offices of government as well as the public at large. This is why the press has been wisely and correctly called The Fourth Branch of Government.

(Affidavit of Judith Miller, sworn to Nov. 12, 2004 ("Miller Aff."), Ex. 8, at ¶ 7.)

Just as the ability of the press to report on issues of significance often depends on information obtained from others, so too is the ability of federal prosecutors to investigate and enforce the nation's criminal laws dependent upon the power of the federal prosecutor to obtain, at times through compulsion, testimony and evidence necessary to determine whether a crime has been committed. It is axiomatic that, in seeking such testimony and evidence, the prosecutor acts on behalf of the public and in furtherance of the "strong national interest in the effective enforcement of its criminal laws." United States v. Davis, 767 F.2d 1025, 1035 (2d Cir.1985) (citations omitted). Indeed, it is a fundamental and "ancient proposition of law," United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), that "`the public... has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege." Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (citations omitted and alteration in original).

Here presented by the motions and cross-motion are the conflicting interests of the press and the federal criminal justice system — each institution, in turn, representing distinct interests of the public — under the particular circumstances presented by the parties to this litigation.

By this action, The Times seeks a declaratory judgment that the telephone records of two reporters employed by The Times, Judith Miller ("Miller") and Philip Shenon ("Shenon"), relating to time periods of twenty-three and eighteen days, respectively, during the months following September 11, 2001, are protected against compelled disclosure by the First Amendment to the U.S. Constitution, federal common law and the guidelines of the U.S. Department of Justice ("DOJ") set forth in 28 C.F.R. § 50.10 (the "Guidelines").5

The telephone records at issue, held by an unidentified third-party telephone company or companies, are being sought by the government as part of an investigation to uncover the identity of one or more government employees who purportedly "leaked" information to Miller and Shenon relating to the government's plans to block the assets and search the offices of two Islamic charity organizations in the fall of 2001. According to The Times, the disclosure of the telephone records at issue would not only constitute an unacceptable violation of the privacy of both Miller and Shenon but would also likely reveal the identities of dozens of confidential sources who are of no relevance to the government's investigation. It is the position of The Times that reporters are afforded both constitutional and common law protections with respect to the preservation of the identity of confidential sources, and that, under the circumstances of this case, the government has failed to establish that these protections are outweighed by the interest in effective law enforcement.

It is the government's position that the relief sought by The Times is both unwarranted and inappropriate, as the grant of such relief would permit a federal district court of the Southern District of New York to interfere with and potentially enjoin an investigation currently being conducted by a federal grand jury in the Northern District of Illinois, thereby encroaching on the authority of the Chief Judge of that district. The government further argues that the reporter's privilege invoked by The Times does not protect the telephone records in question and, even if it did, is outweighed by the public's interests in law enforcement, the fair administration of criminal law, and the prevention of misconduct by government agents.

The statement of these issues establishes the sensitive and difficult nature of the task presented to the Court.

Prior Proceedings6

This action was initiated on September 29, 2004 by the filing of a complaint by The...

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