Journalists do not have to be told in advance that their long-distance telephone records are being subpoenaed in criminal investigations, the U.S. Court of Appeals here ruled yesterday.
Several journalists and media groups had asked the courts for such advance notice so they could fight against disclosure of confidential sources who might be identified by the telephone records.
The court said, however, in a strict reading of previous Supreme Court rulings on the matter of reporters' rights to protect their sources, that criminal investigations by the government "always override a journalist's interest in protecting his source."
In a 2-to-1 decision, U.S. Circuit Judge Malcolm R. Wilkey said, "The so-called right of journalists to gather information from secret sources does not include a right to maintain the secrecy of sources in the face of good-faith felony investigations."
The dissenting judge, U.S. Circuit Chief Judge J. Skelly Wright, said he thought reporters should have the advance warning so they could challenge the release of their telephone records on a case-by-case basis.
"We should not . . . ignore the need for continuing judicial safeguards to ensure a free and vigorous press," Wright said, indicating that he felt the majority ruling opens the door for 47 different government agencies to gain access to such telephone records in criminal and noncriminal investigations without telling reporters they are being sought.
Wright said he did not "suggest" that journalists enjoy greater First Amendment freedoms than anyone else, but ". . . the function of the journalist in our society is to assist in informing, the public - honestly and fairly."
"And," Wright added, "that high calling is diminished when government, however well intentioned, secretly jeopardizes the journalists' sources of information without prior judicial approval." Wright had suggested that a judge should approve long-distance telephone record subpoenas directed at a journalist's telephone.
The case, brought by the Reporters' Committee for Freedom of the Press, two publishing companies and 12 individual journalists, arose out of at least five incidents during the Nixon administration in which reporters' telephone records were subpoenaed.
The journalists and groups and groups asked the American Telephone and Telegraph Corp. not to disclose such information to government investigators in the future without their permission, but AT&T refused. The journalists then filed the suit, and the United States asked to be made a defendant in the case along with the telephone company.
The government claimed that the subpoenas in the past instances had been tied to legitimate felony investigations - such as the Pentagon Papers case and other attempts to locate persons who were leaking allegedly classified information to the press - and that the subpoenaing of toll records is a legitimate and necessary investigative tool.
Wilkey siad in his majority opinion that journalists were trying to put themselves in a special category apart from other citizens in claiming that the First Amendment protected them against subpoenas that are regularly issued for records of other citizens' telephone calls.
officers, reviewing, approving and monitoring each step of a criminal investigation in order to satisfy itself that the officers are acting in good faith."
Wilkey did say that five of the journalists should have an opportunity to convince a federal judge that the subpoenas issued for their records in the past were issued in bad faith by investigators. However, he conceded that would be a "heavy burden" for those five to meet.
One of those five journalists, investigative columnist Jack Anderson said yesterday's ruling would "discourage sources."
"This hampers our ability to find out what the government doesn't want us to know. It is another in a series of court decisions to suppress any version of government events other than its own." Other journalists whose records have been subpoenaed in the past and who will be allowed to present evidence of bad faith to a judge are David Rosenbaum of The New York Times; television investigative journalist James Polk; St. Louis Post-Dispatch reporter Richard Dudman, and the Knight Newspaper Group of Knight-Ridder Newspapers, Inc.
The third judge, U.S. Circuit Judge Spottswood Robinson III, said he did not think a pattern of abuse existed to the extent that the court should get involved in screening such subpoenas.
Robinson said he thought that "throughout our national history the press has flourished without absolute safeguards against governmental misconduct" and that there was no significant problem in connection with the telephone record issue.
"If and when (journalists) establish a threat to newsgathering that has crystallized substantially beyond a general and undifferentiated apprehension of possible future harassment," the courts might step in, he added.
Wilkey pointed out that journalists and sources can easily take steps to avoid detection by avoiding the use of long-distance lines, and therefore avoiding the problem of subpoenas.