# Reporters Committee for Freedom of the Press v. American Telephone & Telegraph Company

> Court of Appeals for the D.C. Circuit · March 5, 1979 · 593 F.2d 1030

URL: https://www.frixlaw.com/law-library/cases/9465569

## Case

- **Full name:** REPORTERS COMMITTEE FOR FREEDOM OF the PRESS Et Al., Appellants, v. AMERICAN TELEPHONE & TELEGRAPH COMPANY Et Al.
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** March 5, 1979
- **Citations:** 593 F.2d 1030; 192 U.S. App. D.C. 376
- **Precedential status:** Published
- **Opinion:** Concurrence by Robinson
- **Judges:** III, Wright, Robinson, Wilkey
- **Cited by:** 122 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9465569

## How later opinions describe it (automated extraction)

- noting that “a telephone subscriber has no Fourth Amendment interest in local call records obtained by means of a pen register installed without his knowledge”
- explaining that plaintiffs are usually required to show “a clear factual foundation” establishing “a pervasive pattern of past abuse” in order to prove that future harm is imminent

## Opinion text

SPOTTSWOOD W. ROBINSON, III, Circuit Judge,
concurring in part and concurring in the result:
I agree that appellants have not established their entitlement to the broad and extraordinary decree they seek in this litigation. In my view, there has not yet been a showing that the commonplace prohibitory injunction cannot safeguard, to the limit legally warranted, the constitutional interests appellants assert. In the same breath I hasten to acknowledge that certain of the appellants have brought forth enough to demonstrate a need for additional proceedings in the District Court with an eye toward possible equitable relief in the accustomed mode. Accordingly, I join unreservedly in Parts I, II and III, and in much of Part IV, 1 of Judge Wilkey’s opinion, and in the remand he proposes. I write simply to indicate what to me are the decisive elements in the case 2 and what considerations might bear on the proceedings on remand. 3
I
As a preliminary matter, I think it is relevant, though by no means dispositive, that appellants lack a constitutionally protectable interest in the privacy — simply for privacy’s sake — of their toll records. 4 *The proposition that news reporters, who may have occasion to contact confidential sources by long-distance telephone, are without reasonable expectations in that regard may not seem entirely self-evident. But as, by my reading, the Supreme Court’s decision in Miller 5 inescapably applies to the situation at bar, 6 I need only say that the records do not fall within the purview of the Fourth Amendment.
What appellants do maintain is that prior notice and an opportunity to be heard, or at least some form of judicial oversight akin to that exercised over warrant applications, 7 is essential to protect the First Amendment interests they associate with their records. I think Judge Wilkey has correctly identified balancing and screening as the two principal aspects of the sought-after remedy. 8 *I agree also that under Branzburg 9 a reporter’s claim to anonymity of his news sources must yield to a good faith governmental request for the records in the context of a felony investigation. 10 No more *1072 than grand jury inquiries can governmental investigations into criminality be halted by impenetrable walls thrown up about reporters and their secret sources. 11 I would add that the breadth of the Government’s demand is material only to the extent that it might evidence possible bad faith; an overly-broad inquiry per se would impose, from aught that appears, no constitutionally significant burden on newsgathering. 12 Accordingly, judicial oversight would be justified, if at all, solely to ferret out bad faith requests. By the same token, the question for decision boils down to whether judicial prescreening of the records-demands stemming from felony investigations can be justified on the theory that all may not be properly motivated.
Even the narrowest possible requisition of toll-billing records may result in disclosure of scores of telephone numbers completely unrelated to the investigation. 13 Information that a reporter-informant contact was made sometime during a given period, for example, normally would necessitate examination of the reporter’s records for the entire period, though only one — and possibly none — of the many listings will bear directly on the subject of the investigation. Inevitably facing that prospect, it seems unlikely that an anonymous informant will be incrementally deterred by the realization that any records-request may be somewhat broader than is actually necessary. 14 The situation before us is unlike *1073 that in Branzburg, 15 where questions put directly to reporters might occasion a breach of the trust inspiring the confidential relationships with their sources, thus impairing the reporter’s credibility — and hence their ability to deal — with informants so betrayed. 16 In that context, extensiye inquiries would impose a much clearer burden on newsgathering than is discernible here. Nor does disclosure of toll records involve an appreciable likelihood of public exposure, subjecting implicated sources to the kind of community chastisement, loss of employment or simply dreaded notoriety 17 that might attach substantial constitutional importance to the divulgence of each and every listing. 18
On the other hand, records-requests “bearing only a remote and' tenuous relationship” 19 to a proper subject of investigation would become significant in the circumstances at bar insofar as they might engender an inference of bad faith. Indeed, appellants complain most staunchly about past instances of allegedly bad faith investigation, so characterized partly by the scope of the intrusion, and possible future repetition of the supposed abuses. To ensure detection of such instances and an opportunity to nip such conduct then in the bud, as well as to alleviate any chilling effect on covert news sources emanating from the prospect of harassment, appellants *1074 seek certain procedural safeguards. Specifically, they ask for notice and the privilege of a hearing, or at least ex parte judicial scrutiny when exigent circumstances foreclose adversary proceedings, 20 prior to release of any toll-billing record.
One difficulty is that the same remedy is logically invokable by an untold number of others in an intolerable number of constitutionally-indistinguishable situations. It seems apparent that anyone engaged in gathering information from those who wish to remain anonymous can equally claim protection against governmental inquiries designed to harass either party. Similarly, everyone who is party to any legitimate and sensitive association with another would under appellants’ theory be entitled to a judicial prescreening of toll-record requests designed to eliminate bad faith probes into those associations and dissipate fears that such transgressions might occur. One would be hard put in any effort to justify for reporters a special safeguard not available to other citizens enjoying comparably vulnerable First Amendment relationships. 21
Nor is there any satisfying reason why judicial screening, if appropriate here, should be limited to attempts to obtain toll-billing records. Without an arbitrarily-drawn line, at least an ex parte judicial procedure would logically become a precondition to any governmental investigative activity that might, if conducted in bad faith, inhibit First Amendment freedoms— or, at a minimum, confidential information-gathering and associational relationships. If judicial prescreening of governmental operations is justified by no more than a possibility of harassment of a legitimate confidential alliance susceptible to impairment, a wide range of investigative pursuits would become subject to a general requirement of prior authorization. For quite often investigation into criminality unavoidably touches on sensitive noncriminal associations, and any such enterprise could have been initiated in bad faith.
Not only does appellants’ thesis portend these consequences but it would also obliterate every semblance of the showing ordinarily prerequisite to injunctive protection by the judiciary. 22 And, equally disturbing, the blanket prescreening mechanism appellants advocate is not even remotely tailored to the size of the problem supposedly occasioning its adoption. To detect and prevent abuses at best shown to occur but rarely, appellants would involve the judiciary in an ongoing audit of governmental felony investigations, 23 a safeguard not withholdable from countless others engaged in First Amendment activities without judicial endorsement of distinctions themselves repugnant to the First Amendment. Throughout our national history the press has flourished without absolute safeguards against governmental misconduct. 24 The judicial process has always provided, and doubtless will continue to afford, a measure of protection that hardly can be deemed either inadequate or unwholesome; and if every jeopardy to the press heightens, the traditional process will rise to quell it. I am not yet ready to give up on orthodox legal doctrine as the vehicle capable of maintaining a reasonable and workable accommodation between the justifiable needs of reporters and the functional needs of their government.
*1075 II
To avoid overly-extensive judicial involvement in investigative activities, courts ordinarily demand a showing that constitutional interests are threatened imminently, and not just speculatively, as a prerequisite to injunctive imposition of prospective restrictions. 25 On the one hand, a vague possibility of bad-faith governmental conduct — though perhaps projecting some chill on First Amendment activity — usually will not prompt extraordinary relief. 26 On the other hand, demonstration of a “reasonable probability” of impending and irreparable injury will invite an injunctive order to bar its occurrence. 27 My view is thát within this doctrinal framework appellants, like others similarly situated, can obtain adequate protection against undue incursions upon their First Amendment pursuits. If and when appellants establish a threat to newsgathering that has crystallized substantially beyond a general and undifferentiated apprehension of possible future harassment, prospective relief fully commensurate with their needs is obtainable. 28 For the injunctive process is a highly flexible one, always sensitive and responsive to the exigencies of particular situations.
Indisputably, equitable relief can, and indeed unfailingly should, be “molded and adapted to the circumstances of the case.” 29 Put another way, “since injunctive relief should be equitable above all else, it must always be a question of balancing and of choosing the remedy.” 30 Very importantly for this litigation, the extent and character of the anticipated injury naturally influences the readiness with which relief will be *1076 afforded. 31 Indeed, the calculus includes “the nature of the case, the probability of future violations, the probable extent of future damage reasonably to be anticipated, and the extent of the impairment of . constitutionally guaranteed rights as balanced against” countervailing interests. 32
Appellants have asserted, not unreasonably, that the harms ensuing from official misuse of their toll-billing records will be irremediable and unusually severe. More precisely, governmental harassment of newsgathering through bad-faith investigation, so they say, expectably would inflict an enduring burden on that First Amendment activity, and the public’s interest in getting all of the news, insofar as appellants’ sources might thenceforth decline to communicate valuable information. 33 The consequences appellants describe' would more predictably occur in some situations than in others, and well-founded apprehensions are susceptible to proof in some degree, at least circumstantially. At the same time, judges should recognize the not infrequent difficulty of translating anticipation into probable fact, and should weigh the evidence in that light in determining whether appellants’ asserted interests, as well as the comparable interests of others, are deserving of solicitude. An objective and commonsense approach will do much to shape the kind of showing justifying an award of equitable relief. 34
Surely, proof of a pattern of past harassment ordinarily calls forth preventive measures. 35 But an actionable threat, capable of supporting prospective relief to the extent necessary to dispel it, 36 may in some cases *1077 be indicated well enough by less than that. To illustrate, if the Government obtained for purposes of persecution the toll-billing records of a reporter’s colleague at work on a mutual or related story sharply critical of the requesting agency, a reasonable likelihood of impending injury — at least at the hands of the official who perpetrated the original misdeed — may be inferrible so long as the news project continues. Of course, a showing by the Government that illicit event was an unfortunate and isolated incident, the better to be dealt with internally, could embarrass the reporter’s claim to equitable relief, even against the wayward official. 37 But, as the Supreme Court has admonished, courts should “beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is a probability of resumption.” 38 If past incidents are to be discarded judicially, “the court must be satisfied that there is no reasonable expectation of future injurious conduct.” 39
Moreover, an actual instance of harassment might summon the equitable powers of the court in another respect. As we ourselves have declared, “[ajssuming a determination of constitutional violations, it is undeniable that the Federal courts having subject-matter jurisdiction also have broad equitable power to remedy and obviate all traces of the constitutional wrong.” 40 In so saying, we simply echoed the Supreme Court’s pronouncement that “[o]nce a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad” 41 — because “breadth and flexibility are inherent in equitable remedies.” 42 Consonantly with these principles, a reporter may be able to establish that an incident of harassment was so disruptive of his ongoing newsgathering activities — by virtue of the reluctance of his informants to communicate with him — that some assurance to assuage them against recurrence of the act is essential to effective pursuit of his reporting functions. The peculiar and devastating propensity of *1078 the injury alleged and substantiated, then, may justify some guaranty of prior notice, or even some amount of ex parte judicial oversight as an appropriate grant of equitable remediation, for as long as seems necessary to dissipate the impact of the wrongful conduct. 43
In still another respect, available relief will be shaped by the magnitude of the constitutional violation portended. It is well settled that a prospective order may run against only those who are privy to the violation. 44 Accordingly, before an injunction may be entered against an agency— qua agency — of the Government, involvement of its policymaking officials must ordinarily be shown. 45 In circumstances suggesting politically-motivated action — appellants’ principal concern — an inference of high-level participation might readily arise. The burden of producing evidence to dispel that inference would then fall upon the Government 46 and, within bounds, 47 the ultimate determination would be a factual one for the court. And even when a plaintiff is able to establish no more than involvement of a lone employee of the agency, he may have earned a conventional decree warding off future transgressions by that employee, and incidentally by any and all those “in active concert or participation” with knowledge of the court’s order. 48
I do not mean, of course, to suggest that a district court should ever award injunctive relief 49 when not persuaded that the exigencies of the case demand it. Without doubt, “unduly obstrusive or hasty judicial intervention can undermine the important values of [official] self-restraint and self-respect.” 50 I wish simply to emphasize the self-evident proposition that when “plaintiffs establish that a substantial threat of constitutional violations exist,” the importance of preserving official initiative “is not the sole consideration for the court.” 51 I think it bears elaboration, too, that the substantiality and imminency of the threat are not to be determined by talismanie rules, but — in the centuries-old equitable tradition — by careful examination and weighing of all relevant facts, tempered by a pragmatic sensitivity to what is at stake. If any one principle is paramount, it is that the hand of the judiciary will move no more or less surely or intrusively than the circumstances dictate, for only in this fashion courts can “protect the constitutional rights of citizens, while preserving the integrity and efficiency of the law enforcement authorities.” 52
*1079 In this doctrinal milieu, I think appellants can adequately guard against any appreciable inhibition on their newsgathering activities from ill-motivated governmental attempts to peruse their toll-billing records. Only five of the appellants, however, have endeavored to substantiate, or even to aver, any singular threat to their newsgathering efforts, and thus far have made only a lukewarm showing at that. All five allege that on one occasion, their records were obtained for political purposes, but none has recounted any substantial withering of confidential sources or even a single instance of informant-withdrawal clearly attributable to assertedly illegal conduct. 53 Indeed, the record evinces on the whole a strikingly meager impact on appellants’ constitutionally-protected endeavors stemming from governmental uses of toll-billing records in the course of criminal investigations. 54 Nonetheless, viewed liberally, the evidentiary showings of these five appellants are enough to entitle them to the opportunity to a fuller presentation at trial, and resultantly summary judgment as to them was inappropriate. Dismissal of the suit with respect to the others is, of course, without prejudice to any future attempt by them to obtain similar relief on a more particularized basis. So, as qualified by these observations, I concur in partial affirmance and remand of this case.
. The divergence of my view from Part IV of Judge Wilkey’s opinion is identified in note 4 infra.
. In Part I infra.
. In Part II infra.
. I do not join in Part IV(A)(l)(b) of Judge Wilkey’s opinion because the decisional alternative there discussed is unnecessary to disposition of this appeal. Moreover, the analysis appropriate for First Amendment issues concentrates on the burden inflicted on protected activities, and the result may not always coincide with that attained by application of Fourth Amendment doctrine.
. United States v. Miller, 425 U.S. 435 , 96 S.Ct. 1619 , 48 L.Ed.2d 71 (1976).
. See Part III of Judge Wilkey’s opinion.
. See Zurcher v. Stanford Daily, 436 U.S. 547 , 98 S.Ct. 1970 , 56 L.Ed.2d 525 (1978).
. See Part IV of Judge Wilkey’s opinion.
. Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972).
. Compare Anderson v. Sills:
The investigatory obligation of the police is surely no less extensive than the grand jury’s. Indeed, the preventive role of the *1072 police necessarily implies a duty to gather data along a still wider range.
56 N.J. 210 , 265 A.2d 678, 688 (1970).
. I am unmoved by appellants’ contention that, as a matter of Fifth Amendment due process, they are entitled to notice of individual records-requests and a pre-release opportunity to be heard. In the ordinary due process situation what may trigger a notice-hearing requirement is the well-nigh certainty that governmental action, unless stopped or set for naught, will devastate a protected liberty or property interest, and it matters not whether the action working the destruction was taken in good faith or bad. For example, dismissal from a tenured position deprives the employee of his job, whether or not the firing was proper, and it is that deprivation that engenders the right to be heard. See Board of Regents v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972); Goldberg v. Kelly, 397 U.S. 254 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970); Sherrill v. Knight, 186 U.S.App.D.C. 293 , 569 F.2d 124 (1977). In the situation confronting us, however, particular divulgences of toll-billing records will not predictably impose a burden upon appellants’ First Amendment newsgathering activities — their liberty interest. Certainly, the common knowledge that toll records are utilized by federal investigators, and the resultant general deterrence to informants desiring anonymity, would not necessitate due-process procedures accompanying records-releasing — for the simple reason that the burden does not emanate from each individual records-request, but from the Government’s general and broad-ranging practice. It is, moreover, unlikely that each request will become known to the implicated informants or that, even if so apprised, they will with any regularity discontinue telephonic communication with the reporter as a result. Though reporters assuredly might face burdens from harassment of sources by officials who learn their identities through toll records, such isolated impairment of the protected activity would not, under traditional doctrine, entitle the reporters to due process proceedings with respect to all of the requests, but only to case-by-case compensatory or preventive relief, see Part III infra. Compare Sherrill v. Knight, supra (denial of White House press pass, plainly inhibiting newsgathering activities, summons due process protections). See also Zurcher v. Stanford Daily, supra note 7 (police search of newsroom files does not constitute a prior restraint on press activities mandating notice and opportunity to be heard).
. See text infra at notes 13-19.
. Compare Zurcher v. Stanford Daily, supra note 7. That consequence may not be so readily tolerable outside the context of criminal investigation. The record in this case, however, does not sufficiently implicate noncriminal administrative investigations, see text of Judge Wilkey’s opinion at notes 6-10, so I need not elaborate.
. See Branzburg v. Hayes, supra note 9, 408 U.S. at 702, 92 S.Ct. at 2667-2668, 33 L.Ed.2d at 652-653 (“[i]f newsmen’s confidential sources are as sensitive as they are claimed to be, the prospect of being unmasked whenever a judge determines the situation justifies it is hardly a satisfactory solution to the problem[;j [f]or them, it would appear that only an absolute privilege would suffice”), citing Note, Reporters and Their Sources: The Constitutional Right to a Confidential Relationship:
Under the case-by-case method of developing rules, it will be difficult for potential informants and reporters to predict whether testimony will be compelled since the decision will turn on the judge’s ad hoc assessment in *1073 different fact settings of “importance” or “relevance” in relation to the free press interests. A “general” deterrent effect is likely to result. . . . Leaving substantial discretion with judges to delineate those “situations” in which rules of “relevance? or “importance” apply would therefore seem to undermine significantly the effectiveness of a reporter-informer privilege.
80 Yale L.J. 317 , 341 (1970). See also Zurcher v. Stanford Daily, supra note 7, 436 U.S. at 563-564 , 98 S.Ct. at 1982 , 56 L.Ed.2d at 542 .
. Branzburg v. Hayes, supra note 9.
. Additionally, the only way a reporter could possibly protect confidential informants from discovery through his own compelled testimony would be to remain ignorant of the informant’s identity or identifying characteristics, knowledge of which likely would be essential to enable the reporter to confirm the reliability of the source.
It is true, as the dissent points out, that our holding precludes a reporter from assuring his sources that judicial procedures will invariably be exhausted prior to release of toll billing records. See 192 U.S.App.D.C. at-, 593 F.2d at 1091, (dissenting opinion). That observation, however, simply does not address the issue whether governmental acquisition of toll records burdens news-gathering as severely as does compelling reporters personally to betray their sources, so as to justify provision of judicial procedures at all.
. Though the general public may not gain knowledge of informants’ identities, the records-requesting officials may, but apart from the general deterrence problem, see text supra at note 9, that itself would impose no burden unless the officials act on their knowledge. Of course, investigative officers may pursue leads obtained from the records and, in so doing, contact reporters’ informants, with a resultant chilling effect on those particular sources. But it is not likely that investigators will with any frequency indiscriminately contact informants not possibly possessing relevant information, both because of the risk of impeding the investigation by undue publicity and simply because of the administrative disutility. The record on appeal does not indicate that the contrary proposition is a realistic or substantial contingency. Nor is the likelihood of avoidable mistaken follow-ups sufficiently great to imbue each request for records with constitutional significance. See generally note 11 supra.
. Compare Bates v. City of Little Rock, 361 U.S. 516 , 80 S.Ct. 412 , 4 L.Ed.2d 480 (1960); NAACP v. Alabama, 357 U.S. 449 , 78 S.Ct. 1163 , 2 L.Ed.2d 1488 (1958); Watkins v. United States, 354 U.S. 178 , 77 S.Ct. 1173 , 1 L.Ed.2d 1273 (1957); Sweezy v. New Hampshire, 354 U.S. 234 , 77 S.Ct. 1203 , 1 L.Ed.2d 1311 (1957). See also Buckley v. Valeo, 424 U.S. 1, 64-74 , 96 S.Ct. 612, 656-661 , 46 L.Ed.2d 659, 713-719 (1976).
Appellants have averred, however, that many of the released toll-records remain in government files, freely accessible to governmental agents. Reply Brief for Appellants at 15. The proper vehicle for ventilation of that grievance is a suit for expungement of the records, or perhaps some lesser limitation on dissemination. See, e. g., Peters v. Hobby, 349 U.S. 331, 348-349 , 75 S.Ct. 790, 799 , 99 L.Ed. 1129, 1142 (1955); Sullivan v. Murphy, 156 U.S.App.D.C. 28, 58 , 478 F.2d 938, 968 , cert. denied, 414 U.S. 880 , 94 S.Ct. 162 , 38 L.Ed.2d 125 (1973); Finley v. Hampton, 154 U.S.App.D.C. 50 , 473 F.2d 180 (1972); United States v. McLeod, 385 F.2d 734, 749-750 (5th Cir. 1967); Wilson v. Webster, 467 F.2d 1282, 1283-1284 (9th Cir. 1972).
. Branzburg v. Hayes, supra note 9, 408 U.S. at 710, 92 S.Ct. at 2671, 33 L.Ed.2d at 656 (Powell, J., concurring).
. The realities of the situation would probably make resort to ex parte proceedings the rule rather than the exception because most likely the Government would establish a reasonable need for secrecy in the vast majority of cases.
. See, e. g., Zurcher v. Stanford Daily, supra note 7; First Nat’l Bank v. Bellotti, 435 U.S. 765, 796-802 , 98 S.Ct. 1407, 1426-1429 , 55 L.Ed.2d 707, 730-733 (1978) (concurring opinion); Pell v. Procunier, 417 U.S. 817 , 94 S.Ct. 2800 , 41 L.Ed.2d 495 (1974); Branzburg v. Hayes, supra note 9.
. See Part II infra.
. See note 26 infra.
. See Branzburg v. Hayes, supra note 9, 408 U.S. at 698-699, 92 S.Ct. at 2665, 33 L.Ed.2d at 649 (“[fjrom the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished”); id. at 706, 92 S.Ct. at 2669, 33 L.Ed.2d at 654 (“the press has at its disposal powerful mechanisms of communication and is far from helpless to protect itself from harassment or substantial harm”).
. See, e. g., Rizzo v. Goode, 423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976); Socialist Worker’s Party v. Attorney General, 419 U.S. 1314 , 95 S.Ct. 425 , 42 L.Ed.2d 627 (1974) (Marshall, J., as circuit justice) (application for stay); Allee v. Medrano, 416 U.S. 802 , 94 S.Ct. 2191 , 40 L.Ed.2d 566 (1974); Sullivan v. Murphy, supra note 18, 156 U.S.App.D.C. at 55 , 478 F.2d at 965 ; Gomez v. Wilson, 155 U.S.App. D.C. 242, 246-247, 477 F.2d 411, 415-416 (1973); Long v. District of Columbia, 152 U.S. App.D.C. 187, 469 F.2d 927 (1972). See generally, e. g., Connecticut v. Massachusetts, 282 U.S. 660, 674 , 51 S.Ct. 286, 291 , 75 L.Ed. 602, 609 (1930); Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 307 (D.D.C.), aff’d, 179 U.S.App. D.C. 22, 548 F.2d 977 (1976); 11 C. Wright & A. Miller, Federal Practice & Procedure, § 2942 at 369 (1973). See also O’Shea v. Littleton, 414 U.S. 488 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974); Laird v. Tatum, 408 U.S. 1 , 92 S.Ct. 2318 , 33 L.Ed.2d 154 (1972).
. See, e. g., Socialist Worker’s Party v. Attorney General, supra note 25; Laird v. Tatum, supra note 25 ; Washington Free Community, Inc. v. Wilson, 157 U.S.App.D.C. 360 , 484 F.2d 1078 (1973); Philadelphia Yearly Meeting of the Religious Soc’y of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975); Anderson v. Sills, supra note 10; cf. Allee v. Medrano, supra note 25.
. Carroll v. Associated Musicians, 206 F.Supp. 462, 478 (S.D.N.Y.), aff'd, 316 F.2d 574 (2d Cir. 1962); see, e. g., SEC v. Culpepper, 270 F.2d 241 , 249-250 (2d Cir. 1959); SEC v. Okin, 139 F.2d 87, 88 (2d Cir. 1943); United States v. Sars of La., Inc., 324 F.Supp. 307, 310 (E.D.La. 1971); SEC v. Dott, 302 F.Supp. 169, 171 (S.D.N.Y.1969); United States ex rel. Brown Bros. Grading Co. v. F. D. Rich Co., 285 F.Supp. 572, 577 (D.S.C.1968); First Nat’l Bank v. First Bank Stock Corp., 197 F.Supp. 417, 428 (D.Mont.1961).
. I divorce myself at the outset from any notion that the prescreening device appellants contend for would summon any really novel exertion of judicial authority. A prescreening remedy, in my view, would constitute no more or less than an exercise of the “large discretion” of the district courts “to model their judgments to fit the exigencies of the particular case.” International Salt Co. v. United States, 332 U.S. 392, 401 , 68 S.Ct. 12, 17 , 92 L.Ed. 20 , 28 (1947). See also United States v. Crescent Amusement Co., 323 U.S. 173, 185 , 65 S.Ct. 254, 260 , 89 L.Ed. 160, 170 (1944). The scope of an equitable decree is to be measured by the needs of the successful litigant for remediation, see infra, and the basic problem here is the caliber of the showing on that score, not the power of the judiciary to fashion effective relief.
. 7 J. Moore, Federal Practice Digest ¶ 65.-18[3] at 65-133 (2d ed. 1975); see e. g., Hecht Co. v. Bowles, 321 U.S. 321, 329 , 64 S.Ct. 587, 592 , 88 L.Ed. 754, 760 (1974); Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U.S. 334 , 53 S.Ct. 602 , 77 L.Ed. 1208 (1933); Sterling v. Constantin, 287 U.S. 378, 403-404 , 53 S.Ct. 190, 197 , 77 L.Ed. 375, 388 (1932); 11 Wright & Miller, supra note 25 , § 2942 at 367-368.
. Acevedo v. Bookbinders & Mach. Operators, 196 F.Supp. 308, 314 (S.D.N.Y.1961).
. See Harris Stanley Cole & Land Co. v. Chesapeake & O. Ry. Co., 154 F.2d 450, 453 (6th Cir.), cert. denied, 329 U.S. 761 , 67 S.Ct. 111 , 91 L.Ed. 656 (1946); Clemmons v. Congress of Racial Equality, 201 F.Supp. 737, 752 (E.D.La.1962). See also Brick v. Hirsch, 331 F.2d 251, 255 (7th Cir. 1964); cf. Conservation Counsel of N.C. v. Costanzo, 398 F.Supp. 653, 674 (E.D.N.C.), aff 'd, 528 F.2d 250 (4th Cir. 1975).
. Clemmons v. Congress of Racial Equality, supra note 31, 201 F.Supp. at 752 .
. The possible long-term effects of harassment in the context at bar might satisfy the irreparability requirement, and provide as well some justification for less hesitant judicial action. Perpetration of a pattern of intrusions, each exacting a permanent and egregious injury to appellants and the public, is a result to be vigorously resisted rather than invariably demanded before relief will be afforded. To be sure, a factual presentation convincingly depicting a reasonable likelihood of imminent, not distant, danger is an indispensable prerequisite to prospective relief. See text supra at note 27. But the requirement might be met in particular cases by advertence to all the facts and circumstances, see text infra at notes 35-39, and when that is possible a supplicant should not be sent away to incur repetitive and crippling injury before “preventive” measures are taken.
If appellants can substantiate their claims of probable and severe long-term impairment of their newsgathering operations, they might have an even stronger case than the appellees in Allee v. Medrano, supra note 25 . Efforts to organize a union were temporarily suspended through persistent police harassment, but injunctive relief would enable the appellees “to regain [their First Amendment] rights and continue furthering their cause by constitutional means” 416 U.S. at 815 , 94 S.Ct. at 2200, 40 L.Ed.2d at 580 .
. See note 33 supra.
. See, e. g., Rizzo v. Goode, supra note 25; Allee v. Medrano, supra note 25 ; Sullivan v. Murphy, supra note 18; Gomez v. Wilson, supra note 25; Long v. District of Columbia, supra note 25; cf. Louis v. S.S. Baune, 534 F.2d 1115, 1122 (5th Cir. 1976).
. See text infra at notes 44-48. The cases demanding proof of a pattern generally involve requests for orders broadly enjoining an entire agency of Government rather than simply the wrongdoing officers. See authorities cited supra note 35. Even absent a demonstration of repetitious violations, though, an evidentiary showing may be strong enough to implicate high-level officials, see text infra at notes 44-48, but ordinarily that will not be so. See Note, The Federal Injunction as a Remedy for Unconstitutional Police Conduct, 78 Yale L.J. 143 , 151-152 (1968). Apart from the problem of ensuring that only those who are culpable will be enjoined, broad department-wide relief carries a greater risk of undue intrusion on governmental affairs. That may be of decisional importance in particular cases. See Rizzo v. Goode, supra note 25 . The remedy found too extensive there, “significantly revising the internal procedures of the Philadelphia police department, was indisputably a sharp limitation on the department’s ‘latitude in the “dispatch of its own internal affairs.” ’ ” 423 U.S. at 379 , 96 S.Ct. at 608, 46 L.Ed.2d at 574, quoting Sampson v. Murray, 415 U.S. 61, 83 , 94 S.Ct. 937, 950 , 39 L.Ed.2d 166, 183 (1974), in turn *1077 quoting, Cafeteria Workers v. McElroy, 367 U.S. 886, 896 , 81 S.Ct. 1743, 1749 , 6 L.Ed.2d 1230, 1237 (1961). See also Lewis v. Hyland, 554 F.2d 93 , 101 n.24 (3d Cir.), cert. denied, 434 U.S. 931 , 98 S.Ct. 419 , 54 L.Ed.2d 291 (1977).
Additionally, the pattern cases generally have had no occasion to consider whether the peculiarities and circumstantial context of a single instance of harassment can ever substantiate an inference that the event was not isolated— in the sense of aberrational and nonrecurrent— but instead was the first, or indeed the first-detected, transgression in a likely succession of serious violations. A facts-and-circumstances analysis was suggested by the Third Circuit in Lewis, supra, which declined to rule that a district court abused its discretion in denying injunctive relief against individual troopers when the record suggested that violations by them had been no more than “random acts,” 554 F.2d at 101 & n.24. Moreover, an injunction against individual police officers in that case would have impinged intolerably on their daily law-enforcement functions. See id. at n.24. The court quoted the district court approvingly, however, to the effect that “the court would [not] hesitate to shape such relief if future misconduct on the part of the named defendants is brought to its attention.” Id.
. See text infra at notes 44-48.
. United States v. Oregon State Medical Soc’y, 343 U.S. 326, 333 , 72 S.Ct. 690, 696 , 96 L.Ed. 978, 988 (1952); accord, United States v. Richberg, 398 F.2d 523, 530 (5th Cir. 1971); United States v. Sars of La., Inc., supra note 27, 324 F.Supp. at 310 ; 11 C. Wright & A. Miller, supra note 25 , § 2942 at 371-372.
. 11 C. Wright & A. Miller, supra note 25 , § 2942 at 371-372. See also note 27 supra and accompanying text.
. Sullivan v. Murphy, supra note 18, 156 U.S. App.D.C. at 56, 478 F.2d at 966 .
. Swann v. Charlotte-Mechlenburg Bd. of Educ., 402 U.S. 1, 15 , 91 S.Ct. 1267, 1276 , 28 L.Ed.2d 554, 566 (1971); cf. Rizzo v. Goode, supra note 25, 423 U.S. at 377 , 96 S.Ct. at 607, 46 L.Ed.2d at 573 (Swann does not support the imposition of prophylactic measures following constitutional wrongs when the decree interferes with internal policies of an executive department and the order ensnares officials not implicated in the violations, because federal “judicial powers may be exercised only on the basis of a constitutional violation,” quoting Swann v. Charlotte-Mechlenburg Bd. of Educ., supra, 402 U.S. at 16 , 91 S.Ct. at 1276 , 28 L.Ed.2d at 566 ).
. Swann v. Charlotte-Mechlenburg Bd. of Educ., supra note 41, 402 U.S. at 15 , 91 S.Ct. at 1276 , 28 L.Ed.2d at 566 .
. “[T]he prospective features of a final injunctive decree are subject to vacation or modification when warranted by equitable principles in the light of changed conditions.” 7 J. Moore, supra note 29 65.08 at 87-88 (emphasis in original); see Fed.R.Civ.P. 60(b)(5).
. See note 41 supra.
. See Rizzo v. Goode, supra note 25 ; Long v. District of Columbia, supra note 25; Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966). See generally Note, supra note 36.
. Compare Sullivan v. Murphy, supra note 18, 156 U.S.App.D.C. at 29, 32 , 478 F.2d at 967, 970 .
. Compare Rizzo v. Goode, supra note 25 , with id., 423 U.S. at 381-387 , 96 S.Ct. at 609-612, 46 L.Ed.2d at 575-579 (dissenting opinion).
. See Fed.R.Civ.P. 65(d). See also Lewis v. Kugler, 446 F.2d 1343 , 1351 n.17 (3d Cir. 1971) (“should the court find that, unknown to their superiors, deprivations of constitutional rights are perpetrated by only a few [officers], it might be possible to fashion a remedial order only with respect to those defendants”).
. Worth mentioning is that in some circumstances a declaratory judgment might serve a plaintiff nearly as well as a more coercive remedy. Of course, equitable principles have a role in the grant of declaratory relief, and an injunction may follow on its heels. See Samuels v. Mackell, 401 U.S. 66 , 91 S.Ct. 764 , 27 L.Ed.2d 688 (1971). More usually, however, since the plaintiffs legal rights would be well settled, the action would be for an injunction to enforce their threatened breach.
. Long v. District of Columbia, supra note 25, 152 U.S.App.D.C. at 194, 469 F.2d at 934 (concurring opinion); accord, Washington Free Community, Inc. v. Wilson, supra note 26, 157 U.S.App.D.C. at 364 , 484 F.2d at 1082 .
. Lewis v. Kugler, supra note 48 , 446 F.2d at 1352 .
. Id.
. See 192 U.S.App.D.C. at -, 593 F.2d at 1067-1068 (Wilkey opinion).
. See Parts I(C)(D), IV(D)(2) of Judge Wilkey’s opinion. Assuredly, appellants manifestly have failed to establish a need for the across-the-board prescreening remedy they seek. From all that appears, the practice appellants challenge operates neither directly nor indirectly “to foreclose them from engaging in news-gathering activities,” as the dissent suggests. See -U.S.App.D.C. at-, 593 F.2d at 1091. The Government has not undertaken to forbid or even to regulate appellants’ use of the telephone. And the record reflects little more than appellants’ surmise that informants generally will decline to respond to reporter-initiated long-distance calls unless we construct prospective protections. Indeed, appellants’ averments that they can and do engage often in telephonic communication with sources evidence an absence of ill effects from the disputed practice on their newsgathering pursuits. I realize that it may be difficult to establish the evils of chill and harassment in the ordinary evidentiary way, but when a substantial impairment of First Amendment activities is not fairly evident on the face of the challenged practice, courts need more than broad unsupported assertions by the parties regarding how others might react. Compare Buckley v. Valeo, supra note 18, 424 U.S. at 73-74 , 96 S.Ct. at 660-661, 46 L.Ed.2d at 718-719. My observations concern, of course, appellants’ insistence upon a prescreening remedy available even to those among them who have stated no facts indicating actual adverse experiences. The allegations of those remaining — while, as they now stand, are inadequate to justify prescreening, either for themselves individually or as a matter of general applicability — are sufficient to survive summary judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9465569. Public record. Not legal advice.