New York Times Is Handed A Defeat in Charity Probe Case

The Supreme Court handed a legal defeat to the New YorkTimes yesterday by refusing to block an appeals court ruling that prosecutors are entitled to examine the telephone records of two Times reporters as part of an investigation into leaks about raids against Islamic charities in 2001.

The high court gave no explanation for rejecting the newspaper's plea to block the lower court order. There was no indication that any justice dissented.

"I'm very disappointed," one of the reporters whose records were sought, Judith Miller, told The New York Sun yesterday. "There seems to be a constant hostility on the part of the court towards these issues and towards journalists' and First Amendment issues."

The Times went to court to block the review of the phone records after the U.S. attorney in Chicago, Patrick Fitzgerald, notified the paper that investigators were seeking the data from telephone companies. Last year, a federal judge in Manhattan, Robert Sweet, ruled in favor the Times, upholding the newspaper's claim that the phone records should be considered legally privileged because of their involvement in newsgathering. However, earlier this year a panel of the 2nd Circuit Court of Appeals ruled, 2–1, that Mr. Fitzgerald was entitled to the records.

Press advocates linked the demand for the phone records with other federal government efforts to pressure reporters, including the jailing of Ms. Miller in a separate leak probe last year and pending contempt proceedings against two San Francisco Chronicle reporters under scrutiny for their reports on steroids in professional sports.

"What we're seeing is a multifaceted attack," a professor of press law at the University of Minnesota, Jane Kirtley, said. "This is a war against the press."

Ms. Kirtley said she had mixed feelings about the Supreme Court's action because a negative decision on the merits could have set precedent for federal courts across the country. "How long we can continue to dodge this bullet, I don't know," she said.

Ms. Kirtley said she hoped the ruling would increase the impetus behind pending federal legislation to establish a reporter's privilege in the federal system, similar to that already recognized in 49 states.

A law professor at New York University, Burt Neuborne, said public and judicial support for the rights of reporters has eroded in recent years as the use of unnamed sources has spread. "People began to see the notion of confidential sources not just as an unmitigated good, but increasingly as a potential abuse," he said.

Internet publishing has also undermined the idea of a journalist's privilege. "Any argument for a special rule involving newsgathering now runs headlong into the fact that every second person is a blogger," Mr. Neuborne said.

In December 2001, the Times reported on government plans to raid two purported charities investigators said had links to terrorist groups, the Global Relief Foundation of Bridgeview, Ill., and the Holy Land Foundation of Richardson, Texas. Ms. Miller and the other reporter, Philip Shenon, called the groups in advance of the planned seizures. The journalists said they were following customary practice by seeking comment, but Mr. Fitzgerald said the calls amounted to warnings that could have endangered government agents.

"I just disagree," Ms. Miller said. "We did what we had to do to confirm the story we wrote."

Mr. Fitzgerald, whose spokesman had no comment yesterday, said he must bring charges against the alleged leaker or leakers by next month or the statute of limitations will expire. He has said he plans no charges against the journalists involved.