Ethics Newsline®

NEW YORK
Setting up a potential battle before the Supreme Court, a federal judge in New York last week broke ranks with colleagues in Washington, ruling that two New York Times reporters do not have to turn over their private phone records to federal prosecutors.

In his ruling, U.S. District Judge Robert Sweet said that in a time of increasing government secrecy, journalists need to be able to offer anonymity to officials willing to leak information in the public interest.

Sweet ruled that under the First Amendment’s protections for the press, prosecutors can force journalists to violate promised anonymity only when doing so serves a higher purpose than the original leak.

In this case, “the government has failed to demonstrate that the balance of the competing interests weighs in its favor,” Sweet concluded.

The ruling rebuffs U.S. Attorney Patrick Fitzgerald, who is trying to force Times journalists Judith Miller and Philip Shenon to surrender weeks of phone records that would expose their networks of confidential sources.

Fitzgerald wants to know who leaked information to the reporters about planned asset seizures and government raids on U.S.-based charities suspected of aiding terrorism. Fitzgerald says the reporters’ attempts to follow up on the leaks sabotaged the government’s actions by tipping off the charities.

Sweet ruled that the reporters’ records can remain secret unless the information is both highly material to the prosecutor’s case and unobtainable by any other avenue — conditions he said the government so far had failed to meet in this case.

Last week’s ruling takes a 180-degree turn from a decision two weeks ago in Washington, where a three-member panel of the circuit court of appeals threatened two reporters with jail if they continue to honor promises of confidentiality to their sources.

In that case, Fitzgerald again is pursuing the Times’ Judith Miller, as well as Time magazine’s Matthew Cooper, for the names of administration officials suspected of leaking the identity of a covert CIA agent.

Both rulings center on the same 1972 U.S. Supreme Court decision — Branzburg v. Hayes — making it likely that the nation’s highest court will intervene to say which determination should be followed, reported the Times.