Court Rules Against New York Times

WASHINGTON, Nov. 27, 2006

(CBS/AP) The Supreme Court ruled against The New York Times on Monday, refusing to block the government from reviewing telephone records of two Times reporters in a leak investigation concerning a terrorism-funding probe.

The one-sentence order came in a First Amendment battle that involves stories written in 2001 by Times reporters Judith Miller and Philip Shenon. The stories revealed the government's plans to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation.

U.S. Attorney Patrick Fitzgerald is trying to track down the reporters' confidential sources for the stories. Fitzgerald's spokesman, Randall Samborn, declined to comment on the Supreme Court's order.

The case marks the second refusal by the court in as many years to sort out a clash between the federal government and the Times over press freedom.

In June 2005, the Supreme Court refused to take up the Times' request to hear an appeal in the CIA leak investigation involving the outing of Valerie Plame. In that case, Miller, who retired from the Times a year ago, spent 85 days in jail before agreeing to testify before a federal grand jury. Fitzgerald, in a role as a special counsel, conducted that leak investigation as well.

Monday's rejection "is just further indication that we're getting absolutely nowhere with the court when it comes to protecting confidential sources," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

The case points out a growing problem of reporters trying to protect their sources in the information age, press advocates say. Rather than threatening reporters with jail if they don't testify, the government can go through the back door to hunt down confidential sources by amassing phone records and credit-card receipts.

"It's impossible to operate on cash only and face-to-face and do your job as journalists," said University of Minnesota media ethics and law professor Jane E. Kirtley.

Dalglish said protection of phone record confidentiality is among the issues that should be addressed in federal shield law legislation she and other media advocates are urging Congress to consider.

In other cases:


The Supreme Court pressed both sides in the opening arguments of a case that businesses of all stripes care deeply about: how hard should it be to get evidence that a company might be violating antitrust laws? The case, Bell Atlantic v. Twombly, stems from the deregulation of the telecommunications industry in the 1980s and 1990s, with some experts citing it as the most important antitrust case to reach the Supreme Court in 20 years. The case is being closely watched by numerous companies, including airlines, credit-card issuers and trade associations representing the wireless communications and pharmaceutical industries, all of whom have submitted or signed onto friend-of-the-court briefs.


The court decided not to plunge into the issue of school choice, passing up a dispute over a Maine law that bars the use of public funds to send students to private religious schools. A conservative group, the Institute for Justice, had asked the justices to take the case. The group is representing eight Maine families who would receive public tuition funds but for the fact that their children attend religious schools.


The court also let stand a ruling that dismissed a $10.1 billion verdict against Philip Morris USA, ending a case that became a windfall for the county where it originated but helped feed its reputation as a "judicial hellhole." In its order Monday, the high court upheld without comment last year's Illinois Supreme Court ruling throwing out the massive fraud judgment against Philip Morris USA, a unit of New York-based Altria Group Inc., in a class-action lawsuit involving "light" cigarettes.


The Supreme Court hears arguments this week in a case that could determine whether the Bush administration must change course in how it deals with the threat of global warming. A dozen states as well as environmental groups and large cities are trying to convince the court that the Environmental Protection Agency must regulate, as a matter of public health, the amount of carbon dioxide that comes from vehicles.

Floyd Abrams, a lawyer for the Times, said the current case is part of a larger dispute over the public's right to information.

"We remain hopeful that in the end, whether in the courts or in Congress, that right will be vindicated," Abrams said.

The current dispute stems from Shenon and Miller calling the two charities for comment after learning of the planned freeze on their assets from confidential sources.

The Justice Department says the reporters' calls tipped off the charities of upcoming government raids. A federal judge who ruled in the Times' favor said there is no evidence in the case even suggesting that the reporters tipped off the charities about the raids or that the reporters even knew the government would raid either charity.

In August, the 2nd U.S. Circuit Court of Appeals ruled 2-1 that federal prosecutors could see the two reporters' phone records.

The government says the fact that the reporters relayed disclosures from a government source to "targets of an imminent law enforcement action substantially weakens any claim of freedom of the press."

At issue are 11 days of phone records the government plans to review from 2001 — for the dates Sept. 27-30, Dec. 1-3 and Dec. 10-13. In a declaration this month, Fitzgerald said the statute of limitations "on certain substantive offenses that the grand jury is investigating" will expire on Dec. 3 and Dec. 13 of this year.

The current leak probe is in Fitzgerald's capacity as U.S. Attorney in Chicago. The Libby prosecution is in Fitzgerald's role as a special counsel who was selected by a Justice Department superior to conduct that investigation.

http://www.cbsnews.com/stories/2006/11/26/supremecourt/main2209121.shtml