By Freedom Newspapers
The U.S. Supreme Court declined last week to take a case involving a prosecutor seeking the telephone records of two reporters with The New York Times. The decision is regrettable — even though it is far from certain that the high court would have decided the case as we would have preferred.
In December 2001 the two reporters, Judith Miller and Philip Shenon, called two Muslim charity groups, the Holy Land Foundation and the Global Relief Foundation, to ask for comments regarding the government’s allegations that they had diverted money to terrorist groups. The government contends they asked questions in a way that tipped off the two groups to the fact that the government was planning to raid them, which it did the next day.
A grand jury in Chicago is still considering aspects of the case, and the prosecution wants access to the phone records of the two reporters covering 11 days in September and December 2001. The Times objected that this request was too broad, arguing the records could expose confidential sources unrelated to the two charities. A divided appeals court said the Times could black out such sources, but had to produce the records.
Reporters are citizens, too, and cannot expect to be shielded from any and all court-ordered duties other citizens are forced to perform. But the need for these records seems tenuous. Both organizations were determined to have sent aid to terrorist groups and have had their assets frozen. How necessary is it to get these phone records from reporters whose actions — even if they did inadvertently tip off the groups — didn’t prevent government action against them?
Government agencies seem to be on a concerted effort to scrutinize media. Eve Burton, the Hearst Corp. lawyer working on the case of two San Francisco Chronicle reporters facing jail time in connection with the Balco steroids case, says the company has received 80 newsgathering subpoenas in the past two years. In the two years before that it got “maybe four or five.”
In a free society the function of a free press — including bloggers, newsletters and talk radio as well as the “mainstream” media — is to be an aggressive watchdog on government. Most media perform this vital function only haltingly as it is. When they are hampered from doing so by questionable legal assaults, it can have a chilling effect and endanger the freedom of all.