New York Times Company v. Gonzales

459 F.3d 160 (2nd Cir. 2006)

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Nature of the Case

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Facts

After 9-11, D launched or intensified investigations into the funding of terrorist activities by organizations raising money in the United States. D developed a plan to freeze the assets and/or search the premises of two foundations. D was targeting the offices of Holy Land Foundation (HLF) and Global Relief Foundation (GRF). Both entities were suspected of raising funds for terrorist activities. D alleges that '[i]n both cases, the investigations -- as well as the safety of FBI agents participating in the actions -- were compromised when representatives of HLF and GRF were contacted prior to the searches by D's reporters Philip Shenon and Judith Miller. On the eve of each of D’s actions, the reporters called each foundation for comment on the upcoming government freeze and/or searches. D, believing that the reporters' calls endangered the agents executing the searches and alerted the targets, allowing them to take steps mitigating the effect of the freeze and searches, began a grand jury investigation into the disclosure of its plans regarding the foundations. The unauthorized disclosures of such impending law enforcement actions by a government agent can constitute a violation of federal criminal law. D sought to obtain the telephone records of Shenon and Miller from P. As an alternative D was ready to obtain those records from third party sources; the telephone companies. P refused the request and questioned whether D had exhausted all alternative sources. The Times argued that turning over the reporters' telephone records would give the government access to all the reporters' sources during the time periods indicated, not just those relating to the government's investigation. P believed that such a request 'would be a fishing expedition well beyond any permissible bounds.' P eventually sued D for declaratory relief claiming a reporter’s privilege under the First Amendment and common law from D accessing records held by third parties. D moved to dismiss the complaint on the ground that Ps have an adequate remedy under Federal Rule of Criminal Procedure 17. The judge denied the government's motion to dismiss in that he had the discretion to entertain the action for declaratory judgment and had no reason to decline to exercise that discretion, especially because a motion to quash would not provide P the same relief provided by a declaratory judgment. P got its declaration and D appealed.