Appendix — Reporters Committee for Freedom of the Press v. American Telephone & Telegraph Co.

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[Supreme Court, U,

TT tLe D

NOV 9 1978

misc RODAK, JR., CLERK |

IN THE

Supreuwe Court of the United

OCTOBER TERM, 1978

No. 78-

—E8 -774

REPORTERS COMMITTEE FOR FREEDOM OF THE PREss, et al.,

Petitioners,

AMERICAN TELEPHONE & TELEGRAPH COMPANY, et al.,

Respondents,

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

APPENDIX

LLOYD N. CUTLER

; DAVID R. ANDERSON

Of Counsel: WILLIAM T. LAKE

JACK C, LANDAU WILLIAM J. KOLASKY, Jr.

The Reporters ALAN B. STERNSTEIN

Committee for . ,

Freedom of the Press W ILMER, Cl TLER & PICKERING

Px amr 1666 K Street, N.W.

1750 Pennsylvania Washine D.C. 20006

Avenue, N.W. ashington, D.C. 206

Washington, D.C. 20006 Counsel for Petitioners

November 9, 1978

TABLE OF CONTENTS

Appendix A (Opinion of the Court of Appeals for the

District of Columbia Circuit, August 11, 1978) ........

Opinion for the Court, Wilkey, J. 2.00.0... -

Concurring Opinion, Robinson, J. -.......000000000000000....

Dissenting Opinion, Wright, C.J. 20000000.

Appendix B (Judgment of the Court of Appeals for

the District of Columbia Circuit, August 11, 1978)...

Appendix C (Opinion of the District Court for the Dis-

trict of Columbia, August 17, 1976) 0.00000.

Appendix D (Judgment of the District Court for the

District of Columbia, August 17, 1976) —.....0000000......

Appendix E (“The Bee Censors Itself,” Sacramento

Pc TN ss ps ct cnenisacoupiuetebtndctccedeuss

Page

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APPENDIX A

(Opinion of the Court of Appeals

for the District of Columbia Circuit)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-2057

REPORTERS COMMITTEE FOR FREEDOM OF

THE PRESS, ET AL., APPELLANTS

AMERICAN TELEPHONE & TELEGRAPH COMPANY, ET AL.

Appeal from the United States District Court

for the District of Columbia

(D.C, Civil Action No. 74-1889)

Argued 18 October 1977

Decided 11 August 1978

Lloyd N. Cutler, with whom David R. Anderson, Ronald

J. Greene, William J. Kolasky, Jr., and Alan B. Stern-

stein were on the brief, for appellants.

David Ginsburg, with whom Lee R. Marks, James E.

Wesner, F. Mark Garlinghouse, James A, DeBots, and

Robert A, Keller were on the brief, for appellees Ameri-

can Telephone & Telegraph Company and Chesapeake &

Potomac Telephone Company.

D, Jeffrey Hirschberg, Attorney, Department of Justice,

with whom George W. Calhoun and Stanley Dalton

Wright, Attorneys, Department of Justice, were on the

brief, for appellee United States of America. Elizabeth

Gere Whitaker, Attorney, Department of Justice, also en-

tered an appearance for appellee United States of

America.

Before: WRIGHT, Chief Judge, ROBINSON and WILKEY,

Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

Opinion filed by Circuit Judge ROBINSON, concurring in

part and concurring in the result.

Dissenting opinion filed by Chief Judge WRIGHT.

WILKEY, Circuit Judge:* Plaintiffs in this action are

* Outline

Bi TE: IO svavsceceeiesenns cation, sieddiadaeiaiciauacemaiaeenmbeat

A. The Records in Question and Their Usefulness

in Law Enforcement . Pe Aieselli di AD aye a 4

B. Limitations on beiaiiciai — ‘“ AT&T

UN cc ccnsenssvscanmcoecsoatate ee 8

C. Impact on Journalists of Toll-Record hebisaien

Prior to the New Policy .. A a i)

D. Impact on Journalists of Toil-Record Sdinians

After the New PEE incsinsstcsdanne ee 13

II. STATE ACTION ............. Perea AY) sebbedeacen mueeccan 1

III]. PLAINTIFFS’ FOURTH AMENDMENT CLAIM us oo

two newspaper-publishing corporations;' twelve individual

journalists ;* and the “Reporters’ Committee for Freedom

of the Press,” a legal research and defense fund organiza-

tion established to protect the interests of the institutional

press. The defendants in this case are the American Tele-

phone and Telegraph Company (“AT&T”) and the Chesa-

peake and Potomac Telephone Company (‘‘C & P”). Plain-

tiffs brought suit in the District Court for declaratory

and injunctive relief, claiming that the First and Fourth

Amendments require that prior notice be provided to

them before defendants turn over their long distance tele-

Page

IV. PLAINTIFFS’ FIRST AMENDMENT CLAIMS 27

A. Plaintiffs’ “Balancing” Theory ........... Bh. thane 30

1. No Abridgment of Any Special Journalistic

Right or Privilege by Good Faith Subpoenas — 30

a. Relationship of First Amendment to Good

Faith Investigation .. mie 30

b. Relationship of First, Fouts, an Fifth

Amendments .................. 42

2. Case-by-Case Judicial aidaitiiaincel ak

precedented, Unnecessary, and Unworkable

Remedy ...... atime = a oAtckes ae

B. Plaintiffs’ “Screening” Theory 64

1. Abridgment of First Amendment Rights ea

Bad Faith Subpoenas ... - 64

2. Prior Judicial Savion ils Equitable

Remedy Unjustified Factually on this Sum-

mary Judgment Record 66

C. Summary ............ TEE EO

‘Dow Jones & Co., Inc. and The Knight Newspaper Group

of Knight-Ridder New spapers, Inc.

* Jack Anderson, Marquis W. Childs, Emmett Dedmon,

Richard Dudman, Morton Mintz, Bruce Morton, John Pierson,

James R. Polk, David E. Rosenbaum, Richard Salant, Daniel

Schorr, and Frederick Taylor.

phone billing records to Government law enforcement of-

ficials. The United States intervened as a party defend-

ant. The District Court denied plaintiffs’ motion for

summary judgment and granted the summary judgment

motion of defendants and of the United States. With re-

spect to plaintiffs Jack Anderson, Richard Dudman,

James R. Polk, David E. Rosenbaum and Knight News-

papers, we reverse the District Court and remand the

ease. We affirm the District Court’s grant of summary

judgment against the other plaintiffs.

I. THE FACTS

A. The Records in Question and Their Usefulness in

Law Enforcement

Telephone companies, like other businesses, maintain for

billing purposes records of the services they provide their

customers. Company billing records for local calls con-

tain only the total number of local message units charged

to a customer, but no details concerning specific calls.’

However, company billing records for long distance calls,

referred to as “toll calls,” contain, for each long distance

call charged to the customer’s number, a notation of the

number called and the date, time, and duration of the

call.‘ Telephone companies retain these “toll-call’” records

for a period of six (6) months.’ Telephone subscribers

are aware that these records are maintained, since they

receive copies of them with their phone bills each month.

For at least the past 50 years, state and federal law

enforcement officials have used information from tele-

phone company toll-billing records in criminal investiga-

‘ Joint Appendix (J.A.) 71.

*J.A. 70.

‘ J.A, 87-88. The six (6) month period is prescribed by Fed-

eral Communication Commission regulation. See 47 C.F.R.

Part 42.

tions and prosecutions. The telephone companies have

generally cooperated with law enforcement efforts and,

in response to official requests, have made their business

records available for inspection,

The toll-call records are useful investigative tools be-

cause the information they contain sometimes provides

circumstantial evidence that there has been contact be-

tween a subscriber and some other person. There are lim-

its on the usefulness of these records, however. Because

they reveal nothing regarding the content of the call, they

virtually never provide direct evidence of criminality.

Furthermore, it is relatively easy for subscribers to avoid

recordation of their long distance calls if they desire to

keep their telephonic contacts secret. Records relating to

a particular subscriber reflect only long distance calls

charged to the subscriber’s number. Thus, they cannot be

used to trace calls made to or from the subscriber's tele-

phone but charged to some other number. Moreover, toll

records are not maintained for pay phones or for individ-

ual extensions of general business telephones and thus can-

not be used to trace calls from such phones. Finally, as

already noted, toll-call records are maintained only

for six months and are not available for inspection once

that period has expired.

Despite these limitations, toll-billing records have be-

come an invaluable law enforcement aid. They have

been most successfully used in the investigation and

prosecution of organized crime and major narcotics of-

fenses.’ Law enforcement agencies and grand juries cur-

® The record does not indicate precisely when the practice of

inspecting toll-call records for law enforcement purposes com-

menced, but the first court of appeals case involving a chal-

lenge to evidence derived from such an inspection was decided

in 1929. See Blakeslee v. United States, 32 F.2d 15 (1st Cir.

1929).

’ The critical importance of toll call record evidence to crimi-

nal investigations was commented upon in the Affidavit of

Donald E. Campbell, Assistant United States Attorney in the

District of Columbia (J.A. 272-274) : rently issue subpoenas and summonses for toll-call records

At the present time, I am Chief of the Major Crimes

Division of the United’ States Attorney’s Office for the

District of Columbia. ...

Telephone toll records have been not only an invaluable

aid in carrying out the investigative responsibility of the

Major Crimes Division, but have also been critical evi-

dence in criminal prosecutions developed by this Division.

The continued access to such records, without advance

notice to subscribers, is absolutely necessary for law en-

forcement to successfully investigate and prosecute certain

criminal activity.

Subscriber and toll information without advance notice

to subscribers is critical in any major narcotic, gambling,

fencing, loansharking or corruption matter or any other

major ongoing conspiratorial or other criminal activity.

The upper echelons of the criminal community go to great

extremes to insulate themselves from detection by law

enforcement. However, these upper echelon individuals

must comiaunicate with those individuals on the “street”

who are doing their “bidding”, and who are visible to law

enforcement. For example, an individual is identified in

the D.C. area as a major drug trafficker, and drugs are

purchased from this individual by an undercover officer.

If law enforcement has conducted a detailed and careful

investigation, there will be a telephone on which this

trafficker has contacted his out-of-town supplier, because

no conspiracy can be carried forward without communica-

tion between the conspirators. Experience has shown that

a telephone is usually used by one of the parties to the

conspiracy to communicate to the principal receiver of a

large shipment of drugs, the time, place, and means of

arrival of the shipment. Therefore, the drug trafficker is

not arrested at this time and a careful review of toll rec-

ords is made. This may permit law enforcement to iden-

tify an individual in another part of the country who is

known to law enforcement in that area to be involved in

drugs. Then with this information as to the probable

identity of the supplier, law enforcement has a chance, by

using other investigative techniques, to develop a case

against the suppliers. Once probable identity has been

established, physical surveillance then becomes extremely

relevant to felony investigations at the rate of approxi-

mately 2,000-3,000 each month."

Defendant AT&T and the associated companies of the

Bell Telephone System operate a nationwide telecommuni-

eee ee

important, informants and undercover officers then Know

who they are looking for, etc,

In every case where law enforcement considers the use

of a Wire interception, toll records are not only one of the

critical factors in establishing probable cause, but are

probably the most revealing factor as to how successful

& Wire Intercept will be. If advance notice is given to the

subscriber that law enforcement is interested in his toll

records, the effectiveness of wire intercepts will be greatly

reduced. Advance notice to subscribers will only serve to

frustrate law enforcement in its effort to immobilize the

upper echelons of the criminal community and result in

more concentration on the lesser figures,

My experience indicates that prosecutors in this Office

are extremely cautious in subpoenaing toll records, I

know of no case in which toll records were subpoenaed

by an Assistant without sufficient information being pre-

sented to that Assistant so that he could properly conclude

that the individual was involved in some type of criminal

conduct and that the toll records were likely to advance

the criminal investigation. It has also been my experience

that very few subpoenas are issued for toll records in

situations where criminal acts have been completed. Toll

records obtained while certain criminal activity is still

ongoing are extremely valuable in that they provide

guidance to law enforcement as to the possible identity of

co-conspirators, With this information, other investiga-

tive techniques can then be used to establish the involve-

ment of co-conspirators. Access to these records in the

course of such an ongoing criminal conspiracy often pro-

vides law enforcement with a critical opportunity to cor-

‘ roborate and substantiate both the contacts between the

conspirators and the illegal purposes furthered by those

contacts.

* J.A. 227,

cations network. Defendant C & P is an associated com-

pany of the Bell System, providing telephone services for

the District of Columbia. AT&T has no telephone sub-

scribers and thus does not maintain subscriber billing

records. C & P, as an operating company, does maintain

such records in the ordinary course of its business,

B. Limitations on Disclosure Under the AT&T Policy

Before 1974 there was no uniform policy within the

Bell System governing the release of company billing

records to law enforcement officials. In March 1974, how-

ever, AT&T adopted throughout the System a formal

policy on the release of such records. This policy, which

is currently in effect, has three important provisions.

First, the policy prohibits the release of toll billing

records in the absence of a subpoena or summons, valid

on its face, issued under the authority of a statute, court,

or legislative body.’

Second, the policy requires that subscribers whose toll-

billing records have been subpoenaed in civil suits, non-

criminal investigations, and non-felony criminal investi-

gations be immediately notified upon receipt of the sub-

poena, the same day by telephone and, in addition, by

letter within 24 hours.’’ Both the oral and written notifi-

cation must include the approximate date on which the

company will furnish the toll-billing records.

Third, the policy requires that subscribers whose toll

records have been subpoenaed in felony investigations be

similarly notified, wnless the subpoena is accompanied by

a written certification stating (1) that the subpoena or

summons was issued pursuant to an official investigation

of a suspected felony or an official legislative investigation,

* J.A. 40.

and (2) that notification to the subscriber could impede

the investigation. Such a certification is effective for

90 days, and must be renewed by further certifications

in writing for successive 90-day periods. When a certifi-

cation period expires, the subscriber is to be notified of

the subpoena if he so requests or if he has previously

submitted to the company a general request for notifi-

cation."

The decision to adopt this policy originated solely with

AT&T; no Government official requested or prompted the

action. AT&T placed the new policy into effect on 1

March 1974.

C. Impact on Journalists of Toll-Record Subpoenas

Prior to the New Policy

In December 1973 plaintiffs wrote AT&T demanding

assurances that their toll-billing records—and those of

other journalists—would not be released to government

investigative agencies without prior notice to the journal-

ists concerned.’ Plaintiffs also demanded from AT&T

information concerning any past instances of Government

access to their toll-billing records. Although AT&T did

provide this latter information, it refused to give plain-

tiffs the assurances they demanded.

Finding this response inadequate, plaintiffs filed a com-

plaint in the District Court for the District of Columbia

on 27 December 1974, alleging that defendants’ policy

regarding the release of toll-call records violated their

First and Fourth Amendment rights.’’ The complaint

" J.A. 40-41,

* J.A. 106-116; 157-162,

13 J,A, 17-21.

“4 J.A, 20-22.

10a

sought a judicial declaration that it was unlawful for

defendants to release the toll-billing records of journalists

to government investigative agencies without prior noti-

fication to the journalists concerned. In addition, it prayed

for an injunction barring defendants from releasing plain-

tiffs’ records without such prior notice. The United States

intervened as a party defendant.

The record developed by plaintiffs in the course of a

massive discovery effort reveals that from January 1971

to March 1974, before AT&T’s new policy went into

effect, the Government issued approximately 75,000-

100,000 toll-record subpoenas.’ This reflects the im-

portance of these records as a tool in the investigation

of modern crime. The record further reveals, during this

same period, only five instances in which the toll-call

records of journalists were requested. This reflects the

relative impact of this investigative method on journalists.

Four of these cases involved grand jury subpoenas; one

involved an Internal Revenue Service summons. Jn each

of these five instances, the toll-call records were sought in

connection with a felony investigation. One subpoena

was issued in the course of an investigation into the

suspected theft of Government documents and the re-

ceipt of stolen documents, violations of 18 U.S.C. § 641; "

The figure of 75,000-100,000 is calelulated on the basis of

the 1974-75 rate of 2,000-3,000 subpoenas each month.

'' This subpeona was issued by a grand jury in connection

with an investigation into the theft and receipt of stolen

United States Government documents, a violation of 18 U.S.C.

$ 641, which provides that any person who “steals,” “converts”

or “sells” any “record” or “thing of value” of the United States

or who knowingly “receives” the same with intent to convert

it to his own use or gain, shall be imprisoned up to 10 years or

fined up to $10,000, or both.

In November 1972 several hundred American Indians occu-

pied the U.S. Bureau of Indian Affairs building. The Wash-

ington, D.C., Metropolitan Police Department, Intelligence Sec-

lla

three of the subpoenas were issued in furtherance of

investigations into possible violations of the espionage

laws of the United States, 18 U.S.C. $$ 792-798;** and

tion, had an undercover agent inside the building among the

Indians. When the Indians eventually vacated the building,

they purloined and took with them Government property, in-

cluding official Government documents. The undercover agent

reported to his Section that the Indians had negotiated with

Jack Anderson, a journalist, for the purchase of some of these

stolen documents and that an Anderson employee was sched-

uled to receive the documents at the home of one of the Indian

leaders. This information was passed on to the FBI. The

Indian leader’s apartment building was placed under physical

surveillance. At the scheduled time, Mr. Les Whitten, an

Anderson employee, arrived at the apartment and was subse-

quently arrested there in apparent possession of the stolen

documents. Mr. Anderson’s and Mr.AWhitten’s toll-call records

were subpoenaed to obtain further evidence in the case (J.A.

260-66).

's In the first of these espionage cases, the toll-call record

subpoena was issued by a grand jury in connection with an

investigation into the unauthorized disclosure of a classified,

“eyes only” State Department cable, a possible violation of

18 U.S.C. § 793, which provides, inter alia, that any person in

lawful possession of any document relating to national defense,

knowing that such document could be used to the advantage of

any foreign nation, who willfully transmits the document to

any person not entitled to receive it, shall be imprisoned up to

10 years or fined up to $10,000, or both.

Jack Anderson wrote and published an article reporting on

the indiscretions of an A.I.D. official stationed in Kenya.

Anderson claimed in the article to have gleaned the informa-

tion from a classified State Department cable. Mr. Anderson

was not authorized to receive classified information. This cir-

cumstance suggested that a Government employee with access

to sensitive diplomatic cable traffic was conveying classified

information to unauthorized persons. The FBI commenced an

investigation to determine the identity of the Government em-

ployee. During the investigation the Government subpoenaed

Mr. Anderson’s toll records in an effort to determine whether

any State Department employees who had access to the cable

12a

one summons was issued in an investigation concern-

ing possible unauthorized disclosure of income tax return

information by an employee of the Internal Revenue Serv-

ice in violation of 26 U.S.C. § 7213."

had contacted Mr. Anderson prior to the article’s appearance.

(J.A. 219-26).

The second and third espionage cases related to the investi-

gation of Daniel Ellsberg for the unauthorized disclosure of

classified Government documents known as the “Pentagon

Papers.” The FBI received independent information indicat-

ing that “Knight Newspapers” and employees of the St. Louis

Post Dispatch may have obtained information from those

classified documents and may have been in telephonic contact

with the person who made the unauthorized disclosure. On

the basis of this information, the FBI obtained grand jury

subpoenas for the toll-call records of “Knight Newspapers”

and two employees of the St. Louis Post Dispatch. In his

deposition, Richard Dudman, one of the Dispatch’s employees,

bears out the accuracy of the Bureau’s lead:

There are cases, too, where an informant may have rea-

son to fear criminal prosecution because of what he tells

us. This was the situation when we were trying to find

someone who would give us copies of the Pentagon Papers,

which were classified top secret. Our eventual source for

some of those documents telephoned us anonymously from

pay stations, and we never did learn his identity. (J.A.

174).

The Ellsberg investigation resulted in an indictment; however,

the charges were dismissed during the trial. (J.A. 145).

'* This summons was issued by the Internal Revenue Service

in an investigation into possible violations of 26 U.S.C. § 7213

and 18 U.S.C. § 1905 by an IRS employee. The former statute

makes it a felony for any U.S. employee to disclose income tax

return information to any person not authorized to receive it;

the latter statute makes it a felony for any U.S. employee to

disclose to an unauthorized person financial and other confi-

dential information contained in reports filed with the Gov-

ernment.

In 1973, information came to the attention of the IRS indi-

cating that an IRS employee \ es divulging to a newspaper

D. Impact on Journalists of Toll-Record Subpoenas

After the New Policy

Since AT&T adopted its new toll-record policy in March

1974—over four years ago—approwimately 100,000-

150,000 toll-record subpoenas have been issued by the

Government in criminal investigations. The record re-

flects no instance during this period in which the toll

records of a journalist have been sought. Moreover, there

is no clear indication in the record that, under AT&T’s

new policy, a journalist would not receive timely notice

of any future subpoena directed at his records.

The dissent has attempted to expand the issues pre-

sented in this case by suggesting that plaintiffs’ toll rec-

ords are presently subject to subpoena without prior

notification in a broad range of civil and administrative

proceedings. This is pure speculation, and the propriety

of any such practice, if it does exist, is simply not raised

in the case at bar. The record indicates only that certain

plaintiffs have had their toll records subpoenaed in felony

investigations. Indeed, we do not find any evidence in thi

record that it is Government practice to subpoena toll-call

records in non-law enforcement matters. Not only does

the record fail to reveal any instance—hefore or after

reporter sensitive information regarding the criminal tax fraud

investigation of a prominent taxpayer then being conducted

by the Service’s Intelligence Division. Mr. David Rosenbaum,

a reporter for The New York Times, had contacted the tax-

payer and told him that he knew that a “full scale’ fraud

investigation was underway. The taxpayer’s attorney later

contacted Mr. Rosenbaum, and Mr, Rosenbaum recited par-

ticulars concerning the investigation and cited specific issues

raised during the audit. The taxpayer complained to the IRS

that his tax affairs were being leaked to the newspaperman.

Other evidence surfaced indicating that the investigation was

being compromised. The IRS issued a summons for the report-

er’s toll records in order to identify the culpable IRS em-

ployee. (J.A, 241-248).

lda

AT&T's new policy went into effect—in which a journa-

list’s toll reeords have been subpoenaed in connection

with something other than a felony investigation, but

it even fails to reveal an instance in which any per-

son's toll-call records have been subpoenaed in connec-

tion with a non-law enforcement proceeding. The record

evidence strongly suggests that virtually a@// toll-call ree-

ord subpoenas are issued in the course of felony investi-

gations. While the dissent grandly enumerates 47 agen-

cies that have subpoena power, the record shows that only

four agencies have actually subpoenaed toll records—the

Department of Justice, the Internal Revenue Service, the

Securities Exchange Commission, and the Department of

the Treasury—and these subpoenas appear to have been

issued in furtherance of law enforcement investigations.’

Thus, the central issue in this case is not whether

plaintiffs are entitled to prior notice of subpoenas issued

in civil or administrative proceedings, but rather whether

plaintiffs are entitled to prior notice of subpoenas issued

in the course of criminal investigations.

* J.A. 151-53. Moreover, even if the Government does sub-

poena toll records in civil and administrative matters, there

is no evidence that the notice procedures provided under

AT&T’s new policy do not give a customer sufficient oppor-

tunity to challenge government inspection of the records.

By its terms, the policy requires immediate telephonic notice

upon receipt of a subpoena and written notice within 24

hours of receipt. The notification must include the approxi-

mate date on which the company “vill” comply with the

subpoena. This strongly suggests that notice will usually

be prior to or contemporaneous with company release of

records, or, if not, at least within sufficient time to give a

customer the opportunity effectively to challenge government

inspection of the records. This was clearly the intent of

AT&T's policy, and there is no evidence that the policy does

not work this way in practice with respect to non-law enforce-

ment cases.

Lda

}

On 17 August 1976 the District Court granted defend-

ants’ motion for summary judgment, rejecting plaintiffs’

First as well as their Fourth Amendment claims. This

appeal followed.

Il. STATE ACTION

Before proceeding to the merits of plaintiffs’ claims,

we confront, in the case of AT&T, the threshold question

of “state action.” Plaintiffs have maintained, and AT&T

has vigorously denied,” that the latter’s cooperation with

the Government in unannounced releases of plaintiffs’

toll-billing records has so enmeshed AT&T in official ac-

tion as to assimilate its own conduct to that of the Gov-

ernment. The problem ought not detain us, however, be-

cause resolution of the governmental-action issue is by no

means essential to the outcome of this appeal or to prog-

ress of the case on remand. We see no occasion, then, to

adjudicate the knotty constitutional question this aspect

of the litigation tenders.

In several material respects, governmental action is

unquestionably involved in the practice plaintiffs chal-

lenge. The Government, through its agencies, itself seeks

the toll records; the Government itself shuns notice and

judicial pre-clearance thereof; and the Government’s po-

tential utilization of the acquired records—not AT&T’s

—is the consequence feared, by reporter and confidential

source alike. Governmental action thus pervades any

clandestine turnover to a degree more than ample to call

for constitutional serutiny.

It is evident, too, that AT&T’s role in this controversial

scenario, however collaborative, is but complementary and

secondary to that of the Government. As the Government

is a defendant in the case, any relief that plaintiffs con-

ceivably might secure can, and in our view should, be

"The Government has taken no position on this issue.

l6a

exacted from it. Were the propriety of advance notice

of the demand for a particular reporter’s toll records

ever established, certainly the Government could give it.

Just as clearly, were ex parte judicial approval to become

a prerequisite in any circumstances to release of the rec-

ords, the Government necessarily would be the initiating

party. And surely there is no impediment to enforcement

against the Government of any narrower injunctive rem-

edy to which plaintiffs may become entitled.”

Moreover, in the event that injunctive relief eventuates

in this litigation, either as an original matter or to effec-

tuate a declaratory judgment,” an order directed against

the Government will bind AT&T as well if only it is ap-

prised of it. Federal Civil Rule 65(d) provides that

[e|very order granting an injunction . . . is bind-

ing... upon the parties to the action, their officers,

agents, servants, employees, and attorneys and upon

those persons in active concert or participation with

them who receive actual notice of the order by per-

sonal service or otherwise.”

» See 28 U.S.C. §1331(a) (1976).

** See Powell v. McCormack, 395 U.S. 486, 499, 89 S.Ct.

1944, 1952, 23 L.Ed.2d 491, 504 (1969) (“declaratory judg-

ment can ... be used as a predicate to further relief, in-

cluding an injunction”); 10 C. Wright & A. Miller, Federal

Practice & Procedure, § 2751 at 866-867 (1973) (declaratory

judgment may be “supplemented either by damages or by

equitable relief even though coercive relief might have been

available at the time of the declaratory action’) (footnotes

omitted).

** Emphasis supplied. See generally Chase Nat’l Bank v.

City of Norwalk, 291 U.S. 481, 436-437, 54 S.Ct. 475, 477,

78 L.Ed. 894, 898 (1934); Environmental Defense Fund v.

EPA, 158 U.S.App.D.C. 1, 5, 485 F.2d 780, 784, aff'd, 412 U.S.

541, 93 S.Ct. 2770, 37 L.Ed.2d 140 (1973); Schwartz v. Gal-

veston Independent School Dist., 309 F.Supp. 1034, 1038 (S.D.

Tex. 1970); South Cent. Bell Tel. Co. v. Constant, Inc., 304

17a

It is perfectly obvious that the Government cannot gain

access to any toll-billing records save through AT&T.

By silently delivering those records at the Government’s

behest, AT&T is plainly in “active concert or participa-

tion” with the Government in the activity precipitating

plaintiffs’ grievance.» And if AT&T thus aided the breach

of a decree enjoining the Government’s unannounced and

unapproved acquisition of particular toll-billing records,

it would subject itself to appropriate sanctions.” It mat-

ters not that absent a cause of action against the Govern-

ment itself AT&T might entirely avoid plaintiffs’ suit ~

—a matter we do not address. AT&T’s amenability to the

injunction would arise in consequence of a command

F.Supp. 732 (E.D. La. 1969), aff'd, 437 F.2d 1207 (5th Cir.

1971); SEC v. Meyers, 285 F.Supp. 7438, 750 (D. Md. 1968);

7 J. Moore, Federal Practice Digest { 65.13 (2d ed. 1975).

*° See authorities cited supra note 24.

2° See authorities cited supra note 24, particularly South

Cent. Bell Tel. Co. Vv. Constant. There, prior to litigation, one

firm obtained a consent injunction prohibiting another firm

from employing the former’s name in advertisements or

statements to customers. The issue was whether a telephone

company with knowledge of the injunction was obligated to

take steps to prevent transmission, by use of its equipment,

of statements breaching the terms of the order. The District

Court held that it was, stating:

As soon as South Central Bell was apprised of the fact

that its subscriber, Constant, was by use of South Central

Bell’s equipment, violating the injunction imposed by the

Court, it had a duty not to act in any way in concert

with Constant to effectuate or perpetuate the violation.

South Central Bell had the means to prevent its equip-

ment from being used to violate the injunction, and its

failure to do so would, at the very least, have amounted

to a passive participation in the violation.

304 F.Supp. at 736. On appeal, the Fifth Circuit affirmed

without opinion. See note 24 supra.

27 See note 26 supra.

18a

properly leveled at the Government, and to assure that

it will be truly meaningful.

Because, then, plaintiffs can secure directly from the

Government any injunctive relief obtainable from AT&T,

and since obedience to any injunction running against

the Government can be exacted from AT&T on a noncon-

stitutional basis,** we perceive no compulsion to ascertain

whether AT&T’s conduct is constitutionally the equivalent

of governmental action for purposes of this case. We

adhere, then, to the settled principle that courts are not

to indulge in constitutional rulings absent “strict adjudi-

cative necessity,” * which we are unable to discern here.”

III. PLAINTIFFS’ FOURTH AMENDMENT CLAIM

Plaintiffs contend that AT&T’s policy in certain felony

cases of releasing toll-call records to investigators with-

out prior notice to the subscriber violates their Fourth

Amendment rights.** This claim clearly lacks any merit.

**To repeat, plaintiffs’ cause of action against the Gov-

ernment, of course, is constitutional in nature, but the re-

straint upon AT&T from Rule 65(d) would merely be inci-

dental to effectuation of appellants’ substantive claim. See

text supra following note 27.

2° Langston V. Johnson, 156 U.S.App.D.C. 5, 7, 478 F.2d

915, 917 (1973); see, e.g., Ashwander Vv. TVA, 297 U.S. 288,

346-347, 56 S.Ct. 466, 483, 80 L.Ed. 688, 711 (1936) (Bran-

deis, J., concurring).

°° The District Court made a conclusory finding that there

was “state action” in the adoption of AT&T’s policy. We have

no occasion to determine whether or not this conclusion was

correct.

* This Fourth Amendment claim was pressed in the District

Court, but plaintiffs seem to have largely abandoned it on this

appeal. However, this case involves the interplay of First and

Fourth Amendment protections and, therefore, a thorough

discussion of Fourth Amendment aspects of the case is desir-

19a

The Fourth Amendment strikes a balance between the

individual citizen’s interest in conducting certain affairs

in private and the general public’s interest in subjecting

possible criminal activity to intensive investigation. It

strikes this balance by securing for each individual a pri-

vate enclave—a “zone” bounded by the individual’s own

reasonable expectations of privacy.“ So long as the in-

dividual acts within this “zone of privacy”, his activities

are shielded from unreasonable Government investiga-

tion; ** any attempt by the Government to search for or

seize evidence from within this zone must be based on

“probable cause” and usually must be preceded by a

judicial determination that “probable cause” exists.

However, the protections afforded the privacy interests

able in order to lay the groundwork for analysis of plaintiffs’

First Amendment claims in the ensuing section.

** See, e.g., Terry V. Ohio, 392 U.S. 1, 9 (1968) (“[W]her-

ever an individual may harbor a reasonable ‘expectation of pri-

vacy’..., he is entitled to be free from unreasonable govern-

mental intrusion”); Katz v. United States, 389 U.S. 347, 351

(1967) (“[{T]he Fourth Amendment protects people, not

places. What a person knowingly exposes to the public, even

in his own home or office, is not a subject of Fourth Amend-

ment protection. But what he seeks to preserve as private,

even in an area accessible to the public, may be constitutionally

protected”); Warden v. Hayden, 387 U.S. 294, 301-304 (1967)

(“[The Fourth Amendment] was intended to protect against

invasions of ‘the sanctity of a man’s home and the privacies of

life’ from searches under indiscriminate, general authority. . ..

[T]he principal object of the Fourth Amendment is the pro-

tection of privacy rather than property... .”).

8 See, e.g., Katz Vv. United States, 389 U.S. 347 (1967) (Gov-

ernment eavesdropping violated privacy upon which petitioner

justifiably relied while using a public telephone booth).

%* See, e.g., United States v. United States District Court,

407 U.S. 297 (1972) (Fourth Amendment requires prior

judicial issuance of warrant for domestic security electronic

surveillance).

20a

of the individual by the Fourth Amendment are neces-

sarily limited by the public’s interest in effective law

enforcement; the Fourth Amendment does not insulate

all personal activity from official scrutiny. Just as it

creates ‘zones of privacy”, it also demarcates appropriate

areas for investigation, in the sense that it allows the

Government relatively free access to evidence located out-

side the individual’s “zone of privacy.” *

Every individual must from time to time reach beyond

his private enclave, draw other people into his activities,

and expose his activities to public view. In any normal

life, even in pursuing his most private purposes, the in-

dividual must occasionally transact business with other

people. When he does so, he leaves behind, as evidence

of his activity, the records and recollections of others.

He cannot expect that these activities are his pri-

vate affair. To the extent an individual knowingly ex-

poses his activities to third parties, he surrenders Fourth

Amendment protections, and, if the Government is sub-

sequently called upon to investigate his activities for

possible violations of the law, it is free to seek out these

third parties, to inspect their records, and to probe their

recollections for evidence.”

*° See, e.g., United States v. Dionisio, 410 U.S. 1 (1973)

(compelled furnishing of voice exemplars did not violate

Fourth Amendment since no person has reasonable expectation

of privacy in physical characteristics of his own voice) ; United

States v. White, 401 U.S. 745 (1971) (use of informants’ and

undercover agents’ testimony does not violate Fourth Amend-

ment protections since “inescapably one... must realize and

risk that his companions may be reporting to the police’).

*6 “No man is an island, entire of itself; every man is a piece

of the Continent, a part of the main.”—John Donne (Devo-

tions XVII).

5? See, e.g., United States v. Miller, 425 U.S. 485 (1976);

Lewis Vv. United States, 385 U.S. 206 (1966); Hoffa v. United

States, 385 U.S. 293 (1966).

2la

In a sense, then, the Fourth Amendment carries with

it both a promise and a warning. It promises each in-

dividual that there is a zone in which he may conduct

his affairs in private, shielded from unwarranted investi-

gative scrutiny, and yet it warns each individual that,

once he projects his activities beyond this private en-

clave, the Government is free to scrutinize them for law

enforcement purposes.

These principles, consistently adhered to by the Su-

preme Court, are the basis for the well-settled rule that

a person has no expectation of privacy in the business

records of a third party and, therefore, has no interest

protected by the Fourth Amendment in such records.”

Accordingly, it has been consistently held by the Supreme

Court” and the Courts of Appeals*” that a person has

* United States v. Miller, 425 U.S. 435 (1976).

°° United States Vv. Miller, 425 U.S. 485 (1976) (bank deposi-

tor has no Fourth Amendment interest in bank records relat-

ing to his transactions) ; Donaldson v. United States, 400 U.S.

517 (1971) (taxpayer has no standing to challenge IRS sum-

mons directed at employer’s records relating to taxpayer) ; id.

at 587 (Douglas, J. concurring) (“[I]t is difficult to see how

the summoning of a third party, and the records of a third

party, can violate the rights of a taxpayer, even if a criminal

prosecution is contemplated or in progress. There is no right

to be free from incrimination by the records or testimony of

others.) ; First National Bank v. United States, 267 U.S. 576

(1925), aff’g without opinion 295 F. 142 (S.D. Ala. 1924)

(taxpayer has no Fourth Amendment basis for challenging

internal revenue summons directed at third-party bank rec-

ords relating to taxpayer). Cf. California Bankers Ass’n V.

Shultz, 416 U.S. 21 (1974); Couch v. United States, 409 U.S.

322 (1973) (taxpayer has no Fourth or Fifth Amendment

right to contest a third party summons directed at taxpayer’s

accountant, even when it required production of taxpayer’s

own records); Wilson v. United States, 221 U.S. 361 (1911)

(corporation president has no Fourth Amendment interest in

corporation’s business records).

1975) (use of evidence obtained through summonsless seizure

22a

no Fourth Amendment basis for challenging subpoenas

directed at the business records of a third party, and,

hence, has no right to notice of such subpoenas.

of bank records did not violate bank depositors’ Fourth or

Fifth Amendment rights: “Certainly it would be difficult...

to imagine on what basis we could hold that the taxpayers,

when they made their bank deposits and invoked the bank’s

assistance in collecting third party negotiable instruments, en-

tered a constitutionally protected zone of privacy.”); United

States v. Continental Bank & Trust Co., 503 F.2d 45 (10th Cir.

1974) (taxpayers not entitled to notice of IRS summons

directed at bank records relating to them, since they had no

interest in such records that could be vindicated through in-

tervention) ; Scarafiotti v. Shea, 456 F.2d 1052 (10th Cir. 1972)

(mandamus unavailable to compel revenue agent to provide

notice of investigative activities involving third parties) ; Har-

ris V. United States, 413 F.2d 316 (9th Cir. 1969) (bank de-

positor had no constitutional basis for challenging summons

directed at bank records relating to him); Galbraith v. United

States, 387 F.2d 617, 618 (10th Cir. 1968) (bank customer had

no constitutional standing to challenge SEC administrative

summons of bank records relating to him: “The guarantees of

the Fourth and Fifth Amendment are essentially personal

privileges that cannot be projected to the seizure of papers

and effects of another or to suppress incriminating aspects of

such records’) ; Application of Cole, 342 F.2d 5, 7-8, (2d Cir.),

cert. denied, 381 U.S. 950 (1965) (IRS was not obligated

to notify taxpayers of an administrative summons which

called for the production of bank records relating to them:

“[{AJll of the records, documents and papers which were the

subject matter of the summons were the property of the Bank

on whom the summons was served. None of the material

sought belonged to the taxpayers or involved the work product

of their attorneys. They have no interest in any of them in

the sense that they had a right to any of them. Under these

circumstances the Commissioner had no duty to give advance

notice to the taxpayers or their counsel of his intention to

examine a third party and the third party’s own records and

papers.”) (emphasis supplied); McMann v. SEC, 87 F.2d

377 (2d Cir.) (L. Hand, J.), cert. denied, 301 U.S. 684

(1937) (customer held not entitled to prevent brokers from

28a

In the most recent Supreme Court case of United

States v. Miller, the Treasury Department presented

to banks at which respondent maintained accounts grand

jury subpoenas requiring the production of “all records

of |respondent’s| accounts.” The banks promptly com-

plied, though no notice of the subpoenas had been given

respondent. Upon being charged with conspiracy to de-

fraud the United States of tax revenues, respondent made

a pre-trial motion to suppress the bank documents, urg-

ing that the subpoenas were defective. The District Court

denied respondent’s motion but was reversed by the Court

of Appeals which held that the Government had violated

respondents’ Fourth Amendment rights. The Supreme

Court reversed the Court of Appeals, holding that the

District Court had properly denied respondent’s motion

to suppress since respondent possessed no Fourth Amend-

ment interest in the bank documents. The Court further

concluded that, since respondent had no interest that

could be vindicated by a challenge to the subpoena, re-

spondent had no right to notice of the subpoenas.”

The Court’s decision highlights the principle that “what

a person knowingly exposes to the public... is not a

subject of Fourth Amendment protection”: “

Respondent urges that he has a Fourth Amend-

ment interest in the records kept by the banks be-

cause they are merely copies of personal records that

were made available to the banks for a limited pur-

pose and in which he has a reasonable expectation of

complying with SEC subpoenas for copy of customer’s ac-

count on grounds that subpoenas infringed constitutional

rights of customer).

*. 425 U.S. 435 (1976).

*? Id. at 442-45.

[d. at 443 n.5; 445.

* Katz v. United States, 389 U.S. at 351.

24a

privacy .... But in Katz the Court .. . stressed

that “[w]hat a person knowingly exposes to the pub-

lic . . . is not a subject of Fourth Amendment pro-

tection.” ....

Even if we direct our attention to the original

checks and deposit slips, rather than to the micro-

film copies actually viewed and obtained by means of

the subpoena, we perceive no legitimate “expecta-

tion of privacy” in their contents... .

The depositor takes the risk, in revealing his

affairs to another, that the information will be con-

veyed by that person to the government. This Court

has held repeatedly that the Fourth Amendment

does not prohibit the obtaining of information re-

vealed to a third party and conveyed by him to

government authorities, even if the information is

revealed on the assumption that it will be used only

for a limited purpose and the confidence placed in

the third party will not be betrayed.

Since no Fourth Amendment interests of the de-

positor are implicated here, this case is governed

by the general rule that the issuance of a subpoena

to a third party to obtain the records of that party

does not violate the rights of a defendant, even if a

criminal prosecution is contemplated at the time the

subpoena is issued.*

The general rule that a person has no Fourth Amend-

ment basis for challenging subpoenas directed at the

business records of third parties has been directly applied

to toll-billing records maintained by telephone companies.“

A telephone subscriber is fully aware when he places

a long distance call that the telephone company will make

** United States Vv. Miller, 425 U.S. at 442-444 (citations and

footnotes cmitted) (emphasis added).

*° See cases cited at note 49, infra.

25a

a record of the call, that the record is the company’s

property, and that the Government has ready access to the

record for law enforcement purposes. On this basis the

courts have uniformly held that subscribers have no

Fourth Amendment basis for challenging Government in-

spection of their toll records, since subscribers, like bank

depositors, have taken the risk in revealing their affairs

to third parties that the information will be conveyed

by that person to law enforcement officials, either volun-

tarily or in response to compulsory process.

Accordingly, in upholding a felony conviction based in

part on evidence derived from toll-call records, the Ninth

Circuit in United States v. Fithian“ stated:

The introduction into evidence of telephone company

records of calls from appellant’s residence did not

violate his Fourth Amendment rights. The expecta-

uon of privacy attaching to telephone conversations

relates to the content of the conversations themselves

and not to the fact that a conversation took place.

No one justifiably could expect that the fact that a

particular call was placed will remain his private

affair when business records necessarily must contain

this information.”

The courts have invariably taken this position.” These

** 452 F.2d 505 (9th Cir. 1971).

** Td. at 506.

** United States v. Lustig, 555 F.2d 737, 747 n.10 (9th Cir.

1977, cert. deni:d, —— U.S. —— (1978) (“It is well estab-

lished that the ‘expectation of privacy’ only extends to the

content of telephone conversations, not to records that con-

versations took place.’’); United States v. Baxter, 492 F.2d

150, 167 (9th Cir. 1978) cert. denied, 416 U.S. 940 (1974)

(“[T]he test of whether a seizure prior to adherence to

judicial processes violates the Fourth Amendment is whether

there is an invasion of the defendant’s ‘constitutionally justi-

fiable expectations of privacy’ .... Telephone subscribers

26a

precedents soundly dispose of plaintiffs’ Fourth Amend-

ment claim.

are fully aware that records will be made of their toll calls.

This Court has held that the expectation of privacy protected

by the Fourth Amendment attaches to the content of a tele-

phone conversation not to the fact that a conversation took

place. The defendants have failed to show a violation of

their Fourth Amendment rights.”); United States v. Fithian,

452 F.2d 505 (9th Cir. 1971); Nolan v. United States, 423 F.2d

1031 (10th Cir. 1969), cert. denied, 400 U.S. 848 (1970) (use

of telephone company toll records at trial and before grand

jury to show interstate calls between defendant’s telephone and

that of an alleged co-conspirator did not constitute a violation

of the Fourth Amendment); United States v. Covello, 410

F.2d 536, 542 (2d Cir.), cert. denied, 396 U.S. 879 (1969)

(“{[T]he keeping of toll records is a necessary part of the

ordinary course of the telephone company’s business and is

necessary in order that the company may substantiate its

charges to its customers, Toll records are kept for all telephone

subscribers and are not kept just for subscribers being investi-

gated by officers of the law, or ones suspected of criminal pro-

clivities. The subscriber is fully aware that such records will

be made, and the records of the telephone company so kept in

the ordinary course of the company’s business are entitled to

the same evidentiary treatment as the records of other busi-

nesses.”’); United States Vv. Gallo, 123 F.2d 229 (2nd Cir. 1941)

(L. Hand, Swan, A. Hand, J.J.) (“When a person takes up a

telephone he knows that the company will make, or may make,

some kind of a record of the event, and he must be deemed to

consent to whatever record the business convenience of the

company requires.”’); United States v. Kohne, 347 F.Supp. 1178

(W.D. Pa. 1972). See also the following cases upholding ad-

missibility of toll-call-billing records in criminal trials: Wood

v. United States, 84 F.2d 749 (5th Cir.), cert. denied, 299

U.S. 589 (1936); Brink v. United States, 60 F.2d 2321 (6th

Cir.), cert. denied, 287 U.S. 667 (1932); United States v.

Radov, 44 F.2d 155 (8rd Cir. 1930); Blakeslee v. United States,

32 F.2d 15 (1st Cir. 1929).

It has also been held that a telephone subscriber has no

Fourth Amendment interest in local call records obtained by

means of a pen register installed without his knowledge.

Hodge V. Mountain States Tel. & Tel. Co., 555 F.2d 254 (9th

27a

IV. PLAINTIFFS’ First AMENDMENT CLAIMS “

Plaintiffs contend that, as journalists, they are entitled

under the First Amendment to prior notice of toll-call-

record subpoenas issued in the course of felony investiga-

tions, even if citizens in general have no such right.”

Plaintiffs base this claim on two separate and distinct

theories.

The first theory relates to the impact of good faith

toll-call-record subpoenas on plaintiffs’ First Amendment

rights and the need for judicial balancing before such

records are released to Government investigators. Plain-

tiffs develop this theory as follows:

(1) The First Amendment guarantees journalists

the freedom to gather information from clandestine

sources.

(2) Because toll-call records may disclose the iden-

tity of a clandestine source, this freedom is abridged

whenever the Government gains access to a jour-

nalist’s toll records, even where access is gained in

the course of a good faith felony investigation.

(3) In order to determine whether this infringe-

ment on First Amendment rights is justified, the

Cir. 1977); United States v. Clegg, 509 F.2d 605 (5th Cir.

1975).

°° Judge Robinson concurs in all of Part IV, with the excep-

tion of my analysis of the relationship between the First,

Fourth, and Fifth Amendments (subsection IV.A.1.b.) which

he finds unnecessary to our decision. While there may be slight

differences in emphasis on the First Amendment issues be-

tween my opinion for the Court and Judge Robinson’s concur-

ring opinion, we believe our views are basically consistent. I

am in fundamental agreement with Judge Robinson’s discus-

sion of the remedial issue (Part II of the concurring opinion)

which amplifies my own (Part IV.B of this opinion).

" Brief for Appellants at 21-28.

28a

Government’s investigation “interests” must be ju-

dicially balanced in each case against the journalist’s

First Amendment “interests”.

(4) A journalist, therefore, must receive prior no-

tice of a toll-record subpoena so that he may chal-

lenge the subpoena and thus prompt the requisite

judicial balancing before the records are released.

The second theory relates to the impact of bad faith

toll-call-record subpoenas on plaintiffs’ First Amendment

rights and the need for judicial screening before such

records are released to Government investigators. Plain-

tiffs develop this theory as follows:

(1) Government investigators have in the past sub-

poenaed journalists’ toll-call records, not in further-

ance of good faith felony investigations, but as

part of politically-motivated efforts to interfere with

their news-gathering activities.

(2) Such bad faith subpoenas abridge journalists’

First Amendment right to gather information from

clandestine sources.

(3) In order to protect journalists from such in-

fringements in the future, it is necessary for the

judiciary to superintend investigations of journalists

in order to screen out bad faith subpoenas.

(4) A journalist, therefore, must receive prior no-

tice of a toll-call-record subpoena so that he may

challenge the subpoena and thus prompt the requisite

judicial screening before the records are released.

Common to both theories is the proposition that journal-

ists have a right under the First Amendment to gather

information from clandestine sources. However, there is

a clear distinction between the two theories, regarding

both the type of Government action which supposedly

abridges this right and the kind of judicial action neces-

sary to remedy the abridgment. According to the first

theory, plaintiffs’ rights are abridged by any and all toll-

29a

call-record subpoenas, and the appropriate remedy is a

judicial balancing of legitimate interests of the Govern-

ment against those of the journalist. According to the

second theory, plaintiffs’ rights are abridged by bad faith

toll-call-record subpoenas and the appropriate remedy is

a judicial screening of all subpoenas in order to winnow

those issued for illegitimate reasons.” Each theory in-

volves separate and distinct issues.

Unfortunately, plaintiffs have quite confounded the

two, repeatedly carrying over considerations relevant to

one in an effort to bolster the other. This totally ignores

the principle the Supreme Court specifically noted in

Branzburg v. Hayes” that First Amendment challenges

to good faith investigative action and First Amendment

challenges to bad faith investigative action “pose wholly

different issues for resolution.” * This opinion follows

the Supreme Court, analyzing each of plaintiffs’ theories

separately.

Before proceeding, however, it is important to note

that the dissent apparently does not grasp the signifi-

cance of this bifurcated analysis. It suggests that all it

is required to do here is to declare that plaintiffs are

entitled to prior notice of toll-record subpoenas. Appar-

ently, it believes that it can make this pronouncement

im vacuo, without addressing whether or not there is actu-

ally a need for case-by-case judicial balancing or screen-

ing. In the dissent’s view, these latter issues are not

immediately relevant and can be left to future resolution.

*? By use of the term “bad faith’ we mean to include not

only investigations actuated by bad intentions but also in-

vestigations that probe at will without relation to law en-

forcement needs and that expose for the sake of exposure.

See Branzburg Vv. Hayes, 408 U.S. 665, 700 (1972).

°° 408 U.S. 665 (1972).

* Id, at 707.

30a

Yet, this is placing the cart before the horse. The ex-

istence of a right to prior notice is predicated precisely

on the supposed need for case-by-case judicial balancing

or screening. Prior notice is merely a procedural device,

the only function of which is to trigger judicial supervi-

sion of subpoenas—supervision that necessarily involves

either the balancing or screening functions of the court.

Accordingly, if it can be demonstrated that there is

no need for case-by-case balancing and no warrant for

case-by-case screening, then the rationale for providing

prior notice evanesces. We conclude first, that there is no

need for case-by-case balancing in criminal investigations

and, second, that no justification for case-by-case screen-

ing has been made thus far in this case.

A. Plaintiffs’ “Balancing” Theory

In treating plaintiffs’ first theory, two issues must be

addressed: first, whether Government access to toll call

records in the course of a good faith felony investigation

actually “abridges” a “freedom” guaranteed plaintiffs

under the First Amendment; and second, if so, whether

prior judicial balancing on a case-by-case basis is an ap-

propriate judicial response.

1. No Abridgment of Any Special Journalistic

Right or Privilege by Good Faith Subpoenas

a. Relationship of First Amendment to Good

Faith Investigation

Plaintiffs contend that the First Amendment guaran-

tees “journalists” the right to gather information from

secret sources, and that this right implies a further

right to maintain the secrecy of those sources."* They

°* Brief for Appellants at 14: “The Supreme Court in Pranz-

burg explicitly recognized that reporters have a First Amend-

assert that these rights are abridged whenever the

Government gains access to toll-call records, or pre-

sumably to any other third-party information which

might disclose the identity of their secret sources.” Thus,

plaintiffs, who have neither a property nor a privacy in-

terest in the business records of the defendant telephone

companies,” clain: nevertheless to have a “First Amend-

ment interest” in tiese records. This “interest”, accord-

ing to plaintiffs, entitles them to bar Government access

to these records even during good faith felony investi-

gations.

The enormity of this claim can best be comprehended

by considering the following fact situation which, though

hypothetical, is patterned after the five actual instances

of toll-call record subpoenas presented in this case.

Suppose that an employee in the Internal Revenue

Service’s regional office in Atlanta, Georgia, decides that

he is going to make public embarrassing information

from the income tax return of a highly prominent citizen.

He knows that it is a felony for an IRS employee to

disclose tax return information to an unauthorized per-

son, and that it is also a felony for any person to

whom such information has been disclosed thereafter to

publish it.” Therefore, the employee naturally desires

to avoid detection and plans to act cautiously. He places

a long distance telephone call to a journalist in Wash-

ment interest, personal to themselves, in maintaining the con-

fidentiality of their news sources.”

“ Brief for Appellants at 11: “The Court [in Branzburg}

recognized that valid First Amendment interests are involved

whenever the confidentiality of a journalist’s sources are

threatened... .” (emphasis added).

* See Part III of this opinion.

* See 26 U.S.C.A. § 7213(a) (1) (West Supp. 1977).

% See Id. § 7218(a) (3) (West Supp. 1977).

32a

ington, D.C., informing him of his designs, and the jour-

nalist says he will consider the matter. Later, the jour-

nalist calls the employee and sets up a meeting in Wash-

ington. On the agreed date, the employee takes a plane

to Washington, and registers in a local hotel. Later, he

takes a taxicab from the hotel to a rendezvous at the

journalist’s own home. He is seen by one of the journal-

ist’s neighbors as he enters the journalist’s home. During

his meeting with the journalist, the employee asks for and

receives the journalist’s assurances that he will not dis-

close the employee’s identity even under compulsion. On

this basis, the employee delivers the information to the

journalist who subsequently publishes it.

When the information appears in the journalist’s col-

umn, it is obvious to Government law enforcement of-

ficials that at least one and possibly two felonies have

been committed, and appropriate officers set about in-

vestigating the suspected crimes. From the nature of the

published information itself, the investigators ascertain

that the unauthorized disclosure was made from the At-

lanta office. The investigatory problem becomes linking

an employee at that office with the Washington journalist.

There are two ways in which this can be done. The

most direct way is to have the grand jury subpoena the

journalist and compel him to disclose his source. The

Supreme Court in Branzburg v. Hayes” expressly held

that this may be done—that the journalist may not refuse

to disclose his source. According to the Court, the jour-

nalist may be required to testify in any and all good

faith criminal investigations—there is no case-by-case

consideration given to a claim of privilege. Good faith

investigation interests always override a journalist’s in-

terest in protecting his source.”

408 U.S. 665 (1972).

" Id. at 690.

| |

33a

There is also a more indirect way for the investigators

to proceed. They can seek out third-party information

connecting the journalist with an employee in the Atlanta °

office. Here, there are at least five sets of third-party

business records which, to varying degrees, provide evi-

dence of such a link: (1) the journalist’s toll-call rec-

ords, (2) the toll-call records of employees in the At-

lanta office, (3) the airline records for Atlanta to Wash-

ington flights, (4) the Washington hotel records, and

(5) the taxicab company’s records. There are also at

least two witnesses whose personal recollections may pro-

vide evidence of such a link: (1) the taxicab driver, and

(2) the journalist’s neighbor.

Plaintiffs’ position is that the journalist in this hypo-

thetical situation has “First Amendment interests” in

these five sets of business records and the testimony of

these two witnesses, and that his “interests” may out-

weigh the Government’s need for this evidence. Thus,

according to plaintiffs the Government would be required

to notify the journalist before it could seek access to any

of these records or witnesses, in order to give the journal-

ist the opportunity to vindicate his supposed First Amend-

ment right to maintain the secrecy of his sources. In

short, plaintiffs claim that journalists have the unprece-

dented privilege of suppressing the records and testimony

of third parties to whom they and their sources have

carelessly revealed incriminating information.

In our view, plaintiffs’ position is based on erroneous

propositions. First, 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. Second, Government ac-

cess to third-party evidence in the course of a good faith

felony investigation in no sense “abridges” plaintiffs

information-gathering activities.

dda

Branzburg Vv. Hayes is dispositive on the first point. In

Branzburg journalists had established confidential rela-

tionships with certain sources. Through grand jury sub-

poenas ad testificandum, the Government sought to com-

pel the journalists to betray these confidences and to dis-

close the identity of their sources. The journalists moved

to quash the subpoenas, contending that the First Amend-

ment gave rise to a testimonial privilege, that is, a

right to protect the secrecy of their sources, The jour-

nalists contended, just as plaintiffs here contend, that if

journalists were compelled to identify their sources, in-

formants would refuse to furnish information in the fu-

ture, and that this would interfere with the free flow of

information protected by the First Amendment.

The Court expressly rejected this claim, holding that

journalists had no special First Amendment right to

maintain the secrecy of their sources in the face of a

good faith felony investigation.“ The Court found that

the possibility that a source might refuse or be reluc-

tant to furnish information to a journalist out of fear

that his identity might be revealed was at best a “bur-

den” on the First Amendment right to gather news.”’

The Court further stated that “{i]t is clear that the First

Amendment does not invalidate every incidental burden-

ing of the press... ,”’“ and that the “burden” of dis-

closing the identity of a source was not constitutionally

suspect and therefore did not require a privileged posi-

tion for newsmen.*’

Branzburg involved good faith subpoenas ad testifican-

dum directed at the journalists themselves. It is logically

Td.

*§ Id. 682.

“ Id.

°° Id. at 682, 698-699.

35a

inescapable that if, as held, journalists have no right to

resist such subpoenas, then they certainly have no right

to resist yood faith subpoenas duces tecum directed at a

third-party’s business records. Not only is the logic in-

escapable, but, in fact, the Court in Branzburg did spe-

cifically uphold the propriety of identifying sources

through such independent means. The Court stated:

. if the authorities independently identify the

informant, neither his own reluctance to testify nor

the objection of the newsman would shield him... ,

whatever the impact on the flow of news or on his

future usefulness as a secret informant.”

Thus, both logic and the Court’s plain statement clearly

refute plaintiffs’ claim that “journalists” have a special

right to resist good faith subpoenas directed at third-

party records.

There is another reason that plaintiffs’ reliance on

Branzburg v. Hayes, for the principle that journalists

have a right to protect the secrecy of their sources from

identification by third parties, is so ironic. The journal-

ists in Branzburg did not assert an absolute testimonial

privilege, but asserted, inter alia, that the Government

should be required to seek out third party sources of evi-

dence before being permitted to compel the journalists

themselves to identify their sources. In other words, the

journalists in Branzburg sought protection only from

being themselves compelled to disclose their sources;

they did not claim any right to prevent third parties from

identifying their sources; indeed, they insisted that the

Government be forced to seek out third parties from

whom they could obtain the necessary evidence. It is

curious, then, that plaintiffs here rely on Branzburg for

the proposition that the First Amendment entitles them to

reach out and suppress the testimony of third parties

* Id. at 695.

36a

whom they have injudiciously made witting of their

secrets.”

* Plaintiffs and the dissent characterize the instant case

as involving the integrity of “confidential relationships’ be-

tween journalists and their sources and contend that the

journalists’ right to notice of third-party subpoenas derives

from a right to preserve the “confidentiality” of their sources.

For example, plaintiffs assert:

It is the confidentiality of their news sources that plain-

tiffs are entitled to protect. Plaintiffs have been injured

by the invasion of confidentiality that resulted from

previous disclosures of toll records. (Reply Brief of

Appellants at 16.)

In the same vein, the dissent states:

... [TJhere [can be no] doubt that newsgathering

encompasses contacts with confidential sources of infor-

mation. ... And the circumstances of this case, more

strikingly than testimony before a grand jury, betray the

potential for substantial infringement of this confiden-

tiality.... (Dissent at 13.)

These characterizations are disingenuous and seriously mis-

leading. In point of fact, this case, unlike Branzburg v. Hayes,

does not involve “confidential relationships’; it involves non-

confidentiai third-party information.

A “confidential” relationship exists in the law only where

parties undertake to keep some matter secret from the rest

of the world, and “confidentiality” exists only between those

parties. Ordinarily mutual promises of secrecy have no legal

significance; the state may compel each party to betray the

confidence of the other in order to obtain evidence in criminal

proceedings. In a very narrow class of cases, however, mu-

tual promises of secrecy are respected in order to foster

certain socially important relationships. In these cases, the

law will protect one party to the relationship from voluntary

or compelled betrayal by the other; that is, it recognizes only

that one party has the “privilege” of preventing the other

party from testifying about the secret matter. This is a

“testimonial privilege,” and this is the privilege that journal-

ists unsuccessfully claimed in Branzburg v. Hayes. That case

involved Government efforts to compel journalists themselves

to betray their sources’ confidences. Here, there is no such

ee —

37a

It is thus clear from Branzburg and related cases that

the freedom to gather information guaranteed by the

First Amendment is the freedom to gather information

subject to the general and incidental burdens that arise

from good faith enforcement of otherwise valid criminal

and civil laws that are not themselves solely directed at

curtailing the free flow of information.** The broad

compulsion; neither journalists nor their sources are being

compelled to reveal any confidence. Rather, the Government

is collecting third-party information. The law does not pro-

tect parties to a “confidential” relationship from compromise

by neutral third-parties to whom they have knowingly im-

parted their secret. This risk of compromise is entirely

within the parties own control. It is an elementary prin-

ciple that when parties to a “confidential” relationship reveal

their secret to third parties, the confidentiality is destroyed,

and the Government is free to exact the information from

third parties without violating any of the policies which

may have initially given rise to a testimonial privilege. In

short, the law will only go so far as to protect each party

from betrayal by the other, but it will not extend the web

of secrecy to third parties.

In this case, plaintiffs claim that the mere fact of their

relationship with certain sources is “confidential”. If this

is true, then plaintiffs must keep this fact secret in order to

preserve “confidentiality”. However, plaintiffs and their

sources have contacted each other through the facilities of

third parties, without taking available precautions to protect

their identities. In so doing, they have knowingly assumed

the risk of disclosure by placing in the hands of those third

parties documentary evidence that their relationship exists.

Under these circumstances, plaintiffs cannot appeal to the

“confidentiality” of their relationships to bar Government

access to this third-party evidence. See generally, 8 Wigmore,

Evidence §§ 2285-2241 (McNaughten rev.ed. 1961).

“ See Zurcher v. Stanford Daily, Nos. 76-1484, 76-1600

(U.S. Sup. Ct. 31 May 1978) (rejecting journalists’ assertion

that search of newspaper office for mere evidence pursuant

to a warrant violated First Amendment); Pell v. Procunier,

417 U.S. 817, 883 (1974) (rejecting media plaintiffs’ assertion

38a

scope of acceptable government investigation, so necessary

to the secure enjoyment of all liberties, unavo'dably places

a burden on all citizens. It is difficult, though not im-

possible, to establish absolutely secret contacts with other

people. The freedom that “journalists” enjoy with re-

spect to their news gathering is subject to this burden.

The First Amendment does not guarantee plaintiff “jour-

nalists,” or other citizens, a special right to immunize

themselves from good faith investigation simply because

they may be engaged in gathering information. Thus,

the Government’s good faith inspection of defendant tele-

phone companies’ toll call records does not infringe on

plaintiffs’ First Amendment rights, because that Amend-

ment guarantees no freedom from such investigation.

Moreover, it is clear that Government access to de-

fendants’ toll call records in no sense “abridges” plain-

tiffs’ news-gathering activities within the meaning of the

First Amendment. Not every Government action that

that face-to-face interviews with designated prison inmates

were such an effective and superior method of news-gathering

that its curtailment amounted to unconstitutional state inter-

ference with a free press: “It has generally been held that

the First Amendment does not guarantee the press a consti-

tutional right of special access to information not available

to the public generally,” quoting Branzburg); Saxbe V.

Washington Post Co., 417 U.S. 848 (1974); Zemel v. Rusk,

381 U.S. 1, 16-17 (1965) (sustaining Government refusal

to validate passports to Cuba even though that restriction

“rendered less than wholly free the flow of information con-

cerning that country”) (“[{T]he right to speak and publish

does not carry with it the unrestrained right to gather infor-

mation.”’); Estes v. Texas, 381 U.S. 532, 539-40 (1965); Asso-

ciated Press Vv. NLRB, 301 U.S. 108, 1382-133 (1937) (‘The

publisher of a newspaper has no special immunity from the

application of general laws. He has no special privilege to

invade the rights and liberties of others. He must answer for

libel. He may be punished for contempt of court. He is sub-

ject to the antitrust laws. Like others he must pay equitable

and non-discriminatory taxes on his business.”’)

39a

affects, has an impact on, or indeed inhibits First Amend-

ment activity constitutes the kind of “abridgment” con-

demned by the First Amendment. Historically considered,

freedom of the press means primarily, although not ex-

clusively, immunity from prior restraints or censorship,”

but the guarantee also affords protection from the imposi-

tion of post-publication sanctions and punishments.”

Additionally, in recent years, the Supreme Court has

found in a number of cases that constitutional violations

may arise from the deterrent, or “chilling”, effect of gov-

ernmental action that falls short of a direct prohibition

against the exercise of First Amendment rights. Yet

not every Government action that has an inhibiting or

constrictive impact on First Amendment activity is said

therefore to have an impermissible “chilling effect.” The

constrictive impact must arise from the present or fu-

ture exercise, or threatened exercise, of coercive power.”

As the Supreme Court stated in Laird v. Tatum: ™

In none of these [previous “chilling effect”] cases,

however, did the chilling effect arise merely from the

individual’s knowledge that a governmental agency

was engaged in certain activities or from the indi-

°° See Lovell Vv. Griffin, 303 U.S. 444 (1988); Near v. Minne-

riety U.S. 697 (1931); Schenk v. United States, 249 U.S. 47

: Chaplinsky v. New Hampshire, 315 U.S. 568, 572 n.8

(1942).

"E.g., Baird vy. State Bar of Arizona, 401 U.S. 1 (1971);

Keyishian V. Board of Regents, 385 U.S. 589 (1967); Lamont

V. Postmaster General, 381 U.S. 301 (1965); Baggett v. Bullitt,

3877 U.S. 360 (1964).

" B.g., NAACP. V. Alabama, 357 U.S. 449 (1958) (con-

tempt citation); Dombrowski v. Pfister, 380 U.S. 479 (1965)

(criminal prosecution); Baird v. State Bar of Arizona, 401

U.S. 1 (1971) (exclusion from profession).

8 408 U.S. 1, 11 (1972).

40a

vidual’s concomitant fear that, armed with the fruits

of those activities, the agency might in the future

take some other and additional action detrimental to

that individual. Rather, in each of these cases, the

challenged exercise of governmental power was regu-

latory, proscriptive, or compulsory in nature, and the

complainant was either presently or prospectively

subject to the regulations, proscriptions, or compul-

sions that he was challenging.

In the instant case, the Government action challenged

by plaintiffs is the mere gathering of evidence from third

parties. As the Supreme Court expressly | stated in

Branzburg. such investigation imposes no restrictions, pri-

or restraint, or sanctions on journalists’ information

gathering.“* Furthermore, in this case, unlike Branzburg,

there is no effort to compel the journalists themselves to

disclose the identity of their sources. Plaintiffs in this

case are neither presently or prospectively subject to

“regulation, proscription or compulsion” as a result of the

Government action they here challenge. Consequently, it

cannot be asserted that Government access to defendants’

toll-call records “abridges’” plaintiffs’ First Amendment

news-gathering rights.

In sum, then, the two propositions underlying plaintiffs’

first theory are erroneous. The First Amendment does

not guarantee journalists the right to preserve the secrecy

of their sources in the face of good faith criminal investi-

gation. Moreover, Government inspection of third-party

records, while it may inhibit plaintiffs’ news-gathering

activity, does not impermissibly abridge such activity.

Hence, journalists in this context have no “First Amend-

™ 408 U.S. at 680-81, 699-700. See Zurcher v. Stanford Daily,

Nos. 76-1484, 76-1600, slip op. at 18 (U.S. Sup. Ct. 31 May

1978) (“Not every seizure, and not even most, will impose a

prior restraint. And surely a warrant to search newspaper

premises for criminal evidence . . . carries no realistic threat

of prior restraint or of any direct restraint whatsoever”).

4la

ment interest” in third-party records which disclose the

identity of a secret source and, consequently, have no

First Amendment right to notice of subpoenas directed at

such records.’’ In other words, the First Amendment does

* The dissent’s reasoning proceeds in three steps. First, it

contends that plaintiffs have a First Amendment right to

gather information; second, it asserts that this information-

gathering right includes a right to collect information from

secret sources; and, third, it reasons that any government

action which threatens to compromise the secrecy of a source

necessarily invades the right to collect information from se-

cret sources. The dissent discusses these points in terms of

“interests.” Thus, it concludes that plaintiffs have First

Amendment “interests” in their toll-call records and that

these “interests” are implicated whenever the Government

obtains access to these records. Further, the dissent suggests

that we in the majority must agree that plaintiffs’ First

Amendment “interests” are threatened by the Government’s

toll-record subpoena practice. Dissent at 16-17, 31. In fact, we

do not agree and, in our view, the dissent’s conclusions gloss

over the truly difficult issues posed.

When the dissent speaks in terms of First Amendment

“interests,” we assume it is referring to First Amendment

“rights.” We agree with the dissent that the First Amend-

ment extends some protection to newsgathering. To this ex-

tent, it may be said that plaintiffs have First Amendment

“rights” or “interests” in newsgathering. But the existence

of this right does not necessarily mean that plaintiffs have a

First Amendment “right” or “interest” in using their tele-

phones immune from the prospect of good faith toll-record

subpoenas. The issue in this case is precisely whether or not

toll-record subpoenas abridge the right to gather information

that is guaranteed by the First Amendment. If these sub-

poenas abridge that right, then plaintiffs would have a First

Amendment “interest” in their toll-call records, and the pro-

cedural protections called for by the dissent would be appro-

priate. However, if these subpoenas do not abridge the right

to gather information, then plaintiffs would not have a First

Amendment “interest” in their toll-call records. It is our

position that the subpoena practices reflected in this record

do not abridge the right to gather information that is guar-

42a

not guarantee a journalist, or any other citizen, the free-

dom to collect information immune from good faith crimi-

nal investigation by means which accord with Fourth and

Fifth Amendment protections. Nor does it insulate a

journalist, or any other citizen, from the general and sub-

jective inhibitions that naturally arise from the prospect

of such investigation—inhibitions to which all citizens are

subject in every field of endeavor.

b. Relationship of First, Fourth, and Fifth

Amendments ™

The issues raised by plaintiffs’ first theory may be

viewed from a somewhat different perspective. I believe

that plaintiffs’ claims pose fundamental questions con-

cerning the interplay of First, Fourth and Fifth Amend-

ment protections. Essentially, plaintiffs contend that par-

ticular good faith investigative actions inhibit, and there-

by infringe upon, their information-gathering activities.

anteed by the First Amendment. Hence, in the factual cir-

cumstances of this case, we do not agree with the dissent that

plaintiffs have First Amendment “interests” in their toll-call

records. We have reached this conclusion through a two-part

analysis by which we have focused, first, on the scope of the

right to gather information itself and, second, on the nature™™

of the impact that the challenged government practice has

on that right.

The dissent has attempted to magnify the impact that the

Government’s subpoena practice has on plaintiffs newsgather-

ing, claiming that plaintiffs have been “restrained” and “fore-

closed” from using the telephone. Dissent at 24. This claim

is simply not true. Plaintiffs are no more foreclosed from

using the telephone by the prospect of toll-record subpoenas

than they are foreclosed from using the streets. by the pros-

pect of physical surveillance, See footnote 54 of Judge Robin-

son's concurring opinion.

* Judge Robinson does not join in the analysis in this par-

ticular subsection IV.A.1.b., finding it unnecessary to our

decision.

43a

Specifically, plaintiffs complain that the investigative ac-

tion has “intruded into”, “invaded” or “penetrated” ac-

tivity which is secret or private.

As already demonstrated, to the extent plaintiffs have

exposed their activities to third parties they had no

protectable privacy interests in them under the Fourth

Amendment." The crux of plaintiffs’ argument, then, is

that they have a right to establish relationships in secret

under circumstances in which the Fourth Amendment

ensures no secrecy and that they have a right to engage

in furtive action free from investigative scrutiny within

an arena ordinarily open to such scrutiny. In short,

plaintiffs claim that the zone of privacy guaranteed them

by the Fourth and Fifth Amendments does not give them

adequate privacy within which to conduct clandestine

collection and that they, apart from other citizens, must

have a broader zone of privacy.

The question thus presented is this: Does the First

Amendment afford plaintiffs this extra margin of privacy

by imposing substantive or procedural limitations on good

faith criminal investigative action above and beyond the

limitations imposed by the Fourth and Fifth Amend-

ments? I believe the answer must be no.

The Supreme Court has repeatedly emphasized that one

of the main reasons for adoption of the Fourth Amend-

ment was to provide citizens with the privacy protection

necessary for secure enjoyment of First Amendment

liberties."* First Amendment values permeate the Fourth

* See Part III of this Opinion.

See Zurcher Vv. Stanford Daily, Nos. 76-1484, 76-1600

(U.S. Sup. Ct. 31 May 1978); United States v. United States

District Court, 407 U.S. 297 (1972); Stanford v. Texas, 379

nes. (1965); Marcus v. Search Warrant, 367 U.S. 717

44a

Amendment. To a somewhat lesser extent, the same can

be said of the Fifth Amendment.” In my view, the

guarantees of the Fourth and Fifth Amendments achieve

their purpose and provide every individual with sufficient

protection against good faith investigative action for the

full enjoyment of his First Amendment rights of expres-

sion. To the extent an individual insists that he must

shield himself from the prospect of good faith investiga-

tion and operate in secrecy in order to exercise effectively

particular First Amendment liberties, he must find that

shield and establish that secrecy within the framework

of Fourth and Fifth Amendment protections. This is not

to say that the First Amendment never gives rise to any

privacy-type interests apart from those secured by the

Fourth and Fifth Amendments. It does mean, however,

that such interests are overridden in criminal cases by

the public’s interest in effective law enforcement investi-

gation at least insofar as they go beyond protections al-

ready afforded by the Fourth and Fifth Amendments,

In several cases the Supreme Court has dealt with

situations in which law enforcement investigative action

undertaken in good faith has had an impact on First

Amendment activity.” In these cases involving “a con-

vergence of First and Fourth Amendment values”, the

Court has held that First Amendment interests are to be

safeguarded by strict adherence to Fourth Amendment

See generally, 8 Wigmore, Evidence §§ 2214, 2251 (Me-

Naughton rev, ed, 1961),

” F.g., Zurcher Vv, Stanford Daily, Nos, 76-1484, 76-1600

(U.S. Sup. Ct. 31 May 1978); United States v. United Stater

District Court, 407 U.S, 297 (1972); Stanford v. Texas, 3879

U.S. 476 (1965). See also United States v. Ramsey, 481 U.S.

606 (1977); Roaden Vv. Kentucky, 418 U.S, 496 (19738).

45a

standards.“ Significantly, the Court has not concluded

that the First Amendment interests themselves give rise

to additional protections against good faith investigative

action above and beyond those afforded by the Fourth

Amendment.” Nor has the Court concluded that persons

"' See cases cited at note 78, supra, See also In re Possible

Violations of 18 U.S.C. 371, 641, 1508, 564 F.2d 567 (D.C.

Cir, 1977).

"To be distinguished are two lines of cases:

One line of cases deals with the use of warrants, not as

means of investigation, but rather as direct means of prior

restraint, In these cases the seizures were not to obtain evi-

dence, but directly to suppress the circulation of printed mat-

ter. See, e.g., Marcus Vv. Search Warrant, 867 U.S, 717 (1961)

(seizure of 11,000 copies of 280 allegedly “obscene” publica-

tions); A Quantity of Copies of Books Vv. Kansas, 378 U.S, 205

(1964) (seizure of 1,715 copies of 31 allegedly obscene publi-

cations). These cases, therefore, do not apply to investigative

action that effects no prior restraint on First Amendment

activity,

The second line of cases deals with associational privacy.

The First Amendment prohibits the use of compulsion to exact

from individuals (or groups) the wholesale disclosure of their

associational ties where such inquiry is not germane to the

determination of whether a crime has been committed, See,

¢.9., DeGregory V, Attorney General of New Hamnshire, 888

U.S. 825 (1966); Bates v. Little Rock, 861 U.S. 516 (1960);

N.A.A.C.P. Vv. Alabama, 357 U.S. 449 (1958); Watkins v.

United States, 8354 U.S. 178 (1957). In such cases, the chal-

lenged governmental action is not strictly investigative; the

probing is not germane to the detection of specific criminal

conduct and is frequently conducted in public so that the

information obtained by the government is simultaneously

and indiscriminately broadcast to the publie at large, In

these cases, the First Amendment gives rise to a personal

testimonial privilege, similar to the privilege against self-

incrimination, by which the individual or group can fend

off such interrogation, See 8 Wigmore, Evidence §$§ 2214,

2251. These cases have no applicability to good faith criminal

investigative efforts. Branzburg V. Hayes, 408 U.S, 665, 700

(1972). Cf. Wilkinson v. United States, 8365 U.S. 399 (1961);

46a

engaging in certain types of First Amendment activity

have broader Fourth Amendment rights than other

citizens.

The proposition that the First Amendment offers no

procedural or substantive protections against good faith

criminal investigative activity beyond that afforded by

the Fourth and Fifth Amendments is directly supported

by the Supreme Court’s recent decision in Zurcher v,

Stanford Daily.’ Indeed, this seems to be the tacit basis

of the decision, In that case police had searched the of-

fices of the Stanford Daily newspaper pursuant to a

warrant issued on probable cause to believe that there

were photographs on the premises that would identify

the perpetrators of certain felonies. The members of the

Daily staff were not themselves involved in the criminal

activity under investigation, After the search, the Daily

and members of its staff brought a civil action seeking

declaratory and injunctive relief under 42 U.S.C, § 1983

against the police. The complaint alleged that the search

of the Daily’s office had deprived the newsmen under

color of state law of rights secured them by the First,

Fourth, and Fourteenth Amendments. The journalists

asserted, inter alia, that where an innocent object of a

third-party search is a newspaper, the First Amendment

requires that evidence in the newspaper’s possession be

obtained by a subpoena duces tecum rather than by a

Barenblatt Vv, United States, 360 U.S, 109 (1959). Moreover,

these cases recognize only a personal testimonial privilege to

resist compelled self-disclosure. They do not apply to the good

faith collection of information from third parties. If they were

so construed, it would be impossible for law enforcement

officials to investigate organizations suspected of criminal

activity or individuals who could be linked to such organiza-

tions, Closely related to this line of cases are cases involving

sweeping legislative investigations of First Amendment ac-

tivity. See United States v. Rumely, 845 U.S. 41 (19538).

** Nos, 76-1484, 76-1600 (U.S. Sup. Ct. 31 May 1978).

47a

search warrant unless the police make a clear showing

that the evidence would be destroyed. The district court

granted the journalists declaratory relief, and the court

of appeals affirmed, The Supreme Court reversed,

Significantly, the Supreme Court's decision analyzes

the protections available to the journalists entirely with-

in the framework of the Fourth Amendment. Observing

that the Fourth Amendment was adopted largely in re-

sponse to a history of conflict between the Crown and the

press, the Court reaffirmed the principle that {where

the materials sought to be seized may be protected by the

First Amendment, the requirements of the Fourth

Amendment must be applied with ‘scrupulous exacti-

tude’’’..' Thus, the Court held that the protections to be

afforded the journalists were to be found in rigorous

application of Fourth Amendment standards, Implicit in

this decision is the conclusion that, in this type of case,

the existence of First Amendment “interests” does not

give rise to any substantive or procedural protections

above and beyond those afforded by the Fourth Amend-

ment, The Court stated:

Neither the Fourth Amendment nor the cases re-

quiring consideration of First Amendment values in

issuing search warrants, however, call for imposing

the regime ordered by the District Court. Aware of

the long struggle between Crown and press and desir-

ing to curb unjustified official intrusions, the Framers

took the enormously important step of subjecting

searches to the test of reasonableness and to the gen-

eral rule requiring search warrants issued by neutral

magistrates, They nevertheless did not forbid war-

rants where the press was involved, did not require

special showings that subpoenas would be impractical,

and did not insist that the owner of the place to be

searched, if connected with the press, must be shown

to be implicated in the offense being investigated,

‘7d. (slip opinion) at 16.

48a

Further, the prior cases do no more than insist that

the courts apply the warrant requirements with par-

ticular exactitude when First Amendment interests

would be endangered by the search."

Justice Powell’s concurring opinion is even more explicit:

If the Framers had believed that the press was

entitled to a special procedure, not available to others,

when government authorities required evidence in its

possession, one would have expected the terms of the

Fourth Amendment to reflect that belief. As the

opinion of the Court points out, the struggle from

which the Fourth Amendment emerged was that be-

tween Crown and press. The Framers were painfully

aware of that history, and their response to it was

the Fourth Amendment. Hence, there is every reason

to believe that the usual procedures contemplated by

the Fourth Amendment do indeed apply to the press,

as to every other person.

. . » [CJonsiderations such as these are the prov-

ince of the Fourth Amendment. There is no author-

ity either in history or in the Constitution itself for

exempting certain classes of persons or entities from

its reach.”

Circuit court cases also support the proposition that the

First Amendment affords no procedural or substantive

protection against good faith criminal investigative ac-

tivity beyond that afforded by the Fourth and Fifth

Amendments. Most analagous to the case at hand are the

so-called “mail cover” cases. A “mail cover” is an in-

vestigative technique involving the screening and analysis

of the envelope exteriors of all mail addressed to a par-

ticular recipient. By this means, investigators can de-

termine, for each item of mail, the city from which the

** Id. at 16-17.

Id, at 2 (concurring opinion).

—_~—

49a

mail was sent, the date on which it was sent, and, if a

return address is provided, the name and address of the

sender. No warrants are required to initiate a “mail

cover”. Thus, “mail covers” provide essentially the same

information concerning mail communication as toll-call

record inspections provide concerning long distance tele-

phone communication. Criminal defendants have at-

tempted to suppress evidence derived from mail covers on

the grounds that such warrantless mail surveillance vio-

lated their Fourth Amendment rights.

The courts have uniformly rejected this argument.”

Just as courts have held that a person’s expectations of

privacy concerning telephone communication attach only

to the contents of the conversation and not to the fact the

communication was made, so also the courts have held

that a person may reasonably expect privacy only with

respect to the contents of an envelope and not with re-

spect to information knowingly exposed to third parties

on the envelope’s exterior. Anticipating plaintiffs’ argu-

ment in this case, individuals have argued that, even

though “mail covers” may not violate the Fourth Amend-

ment, they nevertheless violate the First Amendment by

“chilling” free communication through the mails. There

is no doubt that communication through the mails is a

First Amendment right guaranteed by both the free

speech and press guarantees“ and is “almost as much

st Lustiger V. United States, 386 F.2d 1382, 139 (9th Cir.

1967) (“fT]he Fourth Amendment does not preclude postal

inspectors from copying information contained on the outside

of sealed envelopes in the mail”); Canaday v. United States,

878 F.2d 751, 760 (9th Cir. 1967); United States v. Shwartz,

283 F.2d 107 (3rd Cir. 1960); United States v. Costello, 255

F.2d 876 (2d Cir. 1958).

** See Lamont V. Postmaster General, 381 U.S. 301 (1965).

50a

a part of free speech as the right to use our tongues.” ™

Nevertheless, the courts have held that “mail covers”

violate no First Amendment right.”

The principle that the First Amendment offers no pro-

cedural or substantive protection from good faith criminal

investigation beyond that afforded by the Fourth and Fifth

Amendments is also reflected in cases involving inform-

ants and undercover agents." Law enforcement investi-

gators regularly collect information from informants and

undercover agents concerning the activities, conversations,

and associations of individuals and groups.” No warrant

is required when Government investigators solicit infor-

mation from an informant or place an undercover agent.

This practice was challenged in a series of Supreme Court

eases. In Lopez v. United States,’ defendant in a bribery

trial objected to the introduction into evidence of tape

recordings of an incriminating conversation between him-

self and an IRS agent in defendant’s private office. The

recordings were made by a tape recorder in the agent’s

*° Milwaukee Social Democratic Club Pub. Co. v. Burleson,

255 U.S. 407, 437 (1921) (Holmes, J., dissenting) quoted with

approval in Blount v. Riggs, 400 U.S. 410, 416 (1971).

” Cohen V. United States, 378 F.2d 751, 760 (9th Cir. 1967).

ie See United States v. White, 401 U.S. 745 (1971); Lewis

V. United States, 385 U.S. 206 (1966); Hoffa v. United States,

yet 293 (1966); Lopez v. United States, 373 U.S. 427

IDe ?

o For example, informants are the primary source of infor-

mation in approximately 85 percent of intelligence investiga-

tions conducted by the Federal Bureau of Investigation, as

compared with 5 percent in which the primary source is elec-

tronic surveillance. Senate Select Comm. to Study Govern-

mental Operations with Respect to Intelligence Activities, Sup-

plementary Detailed Staff Reports on Intelligence Activities

and the Rights of Americans, S.Rep.No. 755, 94th Cong., 2d

Sess. 228 (1976).

** 373 U.S. 427 (1963).

5la

pocket. Justice Brennan argued, in dissent, that such

covert investigative practices threatened First Amend-

ment liberties: “{T]here is a grave danger of chilling

all private, free, and unconstrained communication if

secret recordings, turned over to law enforcement officers

by one party to a conversation, are competent evidence of

any self-incriminating statements the speaker may have

made.” ’* Implicitly rejecting this position, the majority

held that the recordings of defendant’s conversation were

properly admitted into evidence and that the secret re-

cording of defendant did not violate defendant’s constitu-

tional rights.

Similarly, in United States v. White,” Justice Douglas

argued that a criminal suspect’s First Amendment rights

were violated when his conversations with an informant

were electronically monitored by Government agents

through a transmitter installed on the informant:

Monitoring, if prevelant, certainly kills free discourse

and spontaneous utterances. Free discourse—a First

Amendment value—may be frivolous or serious,

humble or defiant, reactionary or revolutionary, pro-

fane or in good taste; but it is not free if there is

surveillance.

. .. + [M]ust everyone live in fear that every

word he speaks may be transmitted or recorded and

later repeated to the entire world? I can imagine

nothing that has a more chilling effect on people

speaking their minds and expressing their views on

important matters.”

The Court implicitly rejected this First Amendment argu-

ment in upholding the constitutionality of employing

™ Id. at 452, 469-71.

* 401 U.S. 745 (1971).

[d. at 762-65 (Douglas, J., dissenting).

52a

“wired” informants,” stating: ‘“Inescapably, one con-

templating illegal activities must realize that his com-

panions may be reporting to the police.”

Finally, cases involving physical surveillance support

the principle that the First Amendment affords no pro-

tection against good faith criminal investigative activity

beyond that afforded by the Fourth and Fifth Amendment.

Courts have held that physical surveillance consistent with

Fourth Amendment protections and in connection with a

bona fide law enforcement investigation does not violate

First Amendment rights, even though it may be directed

at communicative or associative activities and even though

it may inhibit such activities.” Thus, in Oaks v. United

States,’ the Ninth Circuit upheld the conviction of a

leader of a tax rebellion group for failure to file an in-

come tax return, rejecting defendant’s contention that

IRS surveillance had violated his First Amendment rights.

IRS undercover agents had infiltrated the Tax Rebellion

** Id. at 752-53.

% Jd. at 752.

” See, e.g., Oaks V. United States, 527 F.2d 937, 941 (9th

Cir, 1975), cert. denied, 426 U.S. 952 (1976) (surveillance by

undercover agent of public meetings of tax rebellion group).

Cf. Fifth Avenue Peace Parade Comm. V. Gray, 480 F.2d 326

(2d Cir. 1973), cert. denied, 415 U.S. 948 (1974) (no justi-

ciable controversy where chilling effect claimed to stem from

examination of bank records of antiwar organizer, ascertain-

ment of number of buses obtained to transport demonstrators,

and observation of bus departures) ; Philadelphia Yearly Meet-

ing of the Religious Society of Friends v. Tate, 519 F.2d 1335

(3d Cir. 1975) (no judicially cognizable chilling effect where

surveillance activities were limited to police photographing

and gathering data at public meetings); Donahue v. Duling,

465 F.2d 196 (4th Cir. 1972) (no judicially cognizable chilling

effect where uniformed police photographed those present at a

public demonstration).

100 §27 F.2d 937 (9th Cir. 1975).

ccs aaa aa ein Ummm i ieee

58a

Committee of which defendant was a member, attended

various meetings of the Committee, and submitted re-

ports on the activities of the Committee and its members,

including defendant. The Court stated:

Nor do we find that the surveillance of the meet-

ings of the Tax Rebellion Committee by the under-

cover agents was improper. The meetings were open

to the public and the participants were openly advo-

cating the willful violation of Internal Revenue laws.

The risk of surveillance of meetings of this type

must be assumed. No interest legitimately protected

by the First and Fifth Amendments is involved.’

The principle is clear. To the extent individuals de-

sire to exercise their First Amendment rights in private,

free from possible good faith law enforcement investiga-

tion, they must operate within the zone of privacy secured

by the Fourth Amendment. When individuals expose their

activities to third parties, they similarly expose these

activities to possible Government scrutiny. The miere

prospect that such investigation may occur or, indeed,

the actual conduct of such investigation does not ‘‘chill”

or otherwise abridge First Amendment rights, even though

it may give rise to subjective inhibitions for those who

desire to avoid the prospect of investigation altogether.

Plaintiffs in this case insist that the mere fact of a

relationship between themselves and certain sources must

be secret. If this is so, then plaintiffs and their sources

have the burden of establishing that secrecy within the

limits of Fourth and Fifth Amendment protections. This

may be difficult, but it is not impossible. All citizens

when they choose to act surreptitiously are put to some

inconvenience; they must lower their voices, put little or

nothing in writing, speak and meet outside the presence

of third parties; these simple precautions are commonly

101 Td. at 941.

54a

used, whether the ends be lofty or evil. Plaintiffs are

no exception simply because they are “journalists.”

The plaintiffs’ and the dissent’s position is that the First

Amendment does afford additional protections against

good faith criminal investigation beyond those provided

by the Fourth and Fifth Amendment. In skeletal form,

their position is that when particular investigative action

“implicates” First Amendment activities, then its utility

must be judicially balanced against the First Amendment

“interests” it may affect before it may be put into effect.

However, it is clear from a moment’s reflection that this

position is wholly untenable.

In Katz v. United States, the Supreme Court observed

that all investigative action intrudes upon privacy to some

extent." The same can be said for the relationship be-

tween investigation and First Amendment activity; that

is, all investigative action affects or “implicates” First

Amendment activity. After all, the First Amendment is

not the personal preserve of “journalists”. It covers al-

most all forms of expression; it covers associative ac-

tivities; it covers religious activities. All citizens have

First Amendment rights and each one’s rights are as

precious as the other’s. Each time law enforcement of-

ficers arrest an individual, they place restraints on First

Amendment activity. Does this mean that before an ar-

rest can be made there must be a hearing at which the

State’s “interest” in making the arrest is judicially bal-

anced against the consequent inhibitions on First Amend-

ment rights? Each time law enforcement officers place a

suspect under physical surveillance or make inquiries and

collect information on a suspect, they “implicate” First

Amendment rights. Does this mean that before the police

2 389 U.S. 347, 350 n.5 (1967) (“Virtually every govern-

mental action interferes with personal privacy to some degree.

The question in each case is whether that interference violates

a command of the United States Constitution.’’)

= See ee

55a

can take this fundamental investigative action there must

be a hearing at which the particular utility of these acts

is judicially balanced against the First Amendment

“interests” they may affect? Each time the Govern-

ment solicits information from an informant or places

an undercover agent it “implicates” First Amendment

rights. Does this mean that before such action is taken

there must be a hearing at which the Government’s “in-

terest’ in taking these actions is judicially balanced

against the First Amendment activities ‘implicated’?

And each time the police obtain a warrant for more in-

trusive investigation, such as for wiretaps or searches,

First Amendment rights are “implicated.” Does this mean

that in addition to determining the probable cause re-

quired by the Fourth Amendment the issuing magistrate

must a/so balance First Amendment interests? Of course,

the practical consequence of such a regime would be the

complete and absolute stultification of law enforcement.

If this is indeed what the First Amendment means,

then I am surprised we have not heard of it sooner.

Think of all those unfortunates in prison who would be

free men today if the dissent had its way and if they but

had the foresight to anticipate these plaintiffs and base

their evidentiary challenges on First rather than Fourth

Amendment grounds.

The only way in which plaintiffs and the dissent could

avoid this denouement is to limit these First Amend-

ment protections only to some individuals; or perhaps

only to some species of First Amendment activities; or

perhaps only to some individuals in some activities. In

other words, under plaintiffs’ approach the courts would

have to decide that certain individuals’ F'irst Amendment

rights are more important than those of others, and that

certain First Amendment activities are more important

than others. Presumably, the more significant individuals

and the more significant activities would have greater

protections from good faith investigation.

56a

How would this gradation be made without doing vio-

lence to the First Amendment itself? If the First Amend-

ment protects “journalists” from third-party subpoenas,

how about ministers, priests and rabbis? How about

authors, teachers, social workers and publishers? How

about labor unionites, Democrats, Republicans and sorority

sisters? If the First Amendment shields ‘news gather-

ing” from good faith investigation, how about other kinds

of First Amendment activity? How about all forms of

associational activity? Are the associational activities of

organized crime shielded from good faith investigation? If

the police issue third-party subpoenas for information

bearing on the “membership” of a suspected organized

crime “family,” must prior notice be given the “family”

so that it can challenge the subpoena in order to preserve

the “confidentiality” of its members? Why dismiss this

out of hand? Are there no genuine associational rights

“implicated” in such a case?

In Branzburg, the Supreme Court recognized that it

would be improper, as well as impracticable, to define

the categories of persons entitled to insist on the balanc-

ing procedures sought in that case:

Sooner or later, it would be necessary to define

those categories of newsmen who qualified for the

privilege, a questionable procedure in light of the

traditional doctrine that liberty of the press is the

right of the lonely pamphleteer who uses carbon pa-

per or a mimeograph just as much as of the large

metropolitan publisher who utilizes the latest photo-

composition methods. . . . The informative function

asserted by representatives of the organized press

in the present cases is also performed by lecturers,

political pollsters, novelists, academic researchers, and

dramatists. Almost any author may quite accurately

assert that he is contributing to the flow of informa-

tion to the public, that he relies on confidential

sources of information, and that these sources will

57a

be silenced if he is forced to make disclosures before

a grand jury.’

In sum, the approach urged by plaintiffs and the dis-

sent must inevitably result in one of two consequences.

Either all people at all times will have the First Amend-

ment balancing protection against good faith investiga-

tion, in which case law enforcement will be completely

throttled. Or, certain people at certain times will be en-

titled to such protection, in which event first the police

and then the courts will be obliged in each case to deline-

ate the individuals and species of activity entitled to

protection, and this, in turn, will necessarily require dis-

tinguishing “real” from “sham” First Amendment claims.

In my view, neither approach is acceptable, in theory or

in practicality.

2. Case-by Case Judicial Balancing—an Unprece-

dented, Unnecessary, and Unworkable Remedy

Even if it is assumed arguendo that plaintiffs have

established an abridgment of a First Amendment “in-

terest,” this does not necessarily mean that the judicial

response sought by plaintiffs is appropriate. Plaintiffs

contend that there must be a case-by-case balancing of

the Government’s investigative interests against their

First Amendment interests as journalists whenever the

Government seeks access to their toll-call records in the

course of a good faith felony investigation.’* We know of

no authority supporting the proposition that any such

balancing must be performed on a case-by-case basis, and

neither plaintiffs nor the dissent cites any.’

8 408 U.S, at 704-705,

'* Brief for Appellants, 28-33,

“° The dissent stresses the need for “judicial superintend-

ence” of actions which may impinge on First Amendment

It is at this point that plaintiffs’ and the dissent’s con-

fusion between the balancing function of the court and

4s sereening function becomes evident. Apparently the

source of this confusion is a single paragraph in the

Branzburg decision, The Court in Branzburg determined

that good faith criminal investigation interests always

override a journalist's interest in preserving the secrecy

of his sourees. The Court observed that there was no

question but that the particular subpoenas in question

were issued in qood faith and it held that the First

Amendment offers no protestion from such good faith

investigative efforts. The Court exp hicitly re jected @ CASC-

hyecase balancimna approach, which absolut ely refutes the

Jnintiffs’ and the dissent’s position on good faith Inves-

igations, At the very end of its decision, the Court

rights. (Dissent at 19). It cites, rnter alia, the following en

Rantam Books, Ine. Vv. Sullivan, 872 U.S. 58 (1963) ; ¢ arvoll V.

President and Comm'rs of Princess Anne, 395 U.S. 175

(1968): Freedmen V. Marylend, 880 U.S, 51 (1965), All these

causes, however, inv Ived ystems of State re qulation Which

imposed prior restraints on expression pre dicated on a faetual

het rminat on that thi Suppre . ed ‘ xpression Wits ?) oft protect»

d by the First Amendment. These cases stand for the propo-

sition that uch systems must assure an “almost immediate

iudicial determination of the validity of the restraint. This

determination is a factual determination as to whether a par-

ticular form of expression is protected or not under the First

Amendment: it does not involve a case-by-case balancing of

the quantum of “interests” Ina protected form of eXpression

against the quantum of governme ytal interests in infringing

oy that expression, Thus, in Bantam Books, Inc., the Court

did not sugvest that the merits of a particular obscene publi-

cation be balanced in each case against the Governme nt’s in-

terest in suppressing that publication. This was not why the

Court stated that “judicial superintendence” was necessary.

Rather, it was declared necessary to ensure that either before

or soon after a prio restraint was placed on an allege ‘dly

obscene publication, there be a procedurally adequate hearing

at which the facet of obscenity could be determined.

59a

commented on the possible impact of bad faith subpoenas

on journalists’ First Amendment rights:

Finally, as we have earlier indicated, news gather-

ing is not without its First Amendment protections,

and grand jury investigations if instituted or con-

ducted other than in good faith, would pose wholly

different issues for resolution under the First Amend-

ment. Official harassment of the press undertaken

not for purposes of law enforcement but to disrupt a

reporter’s relationship with his news sources would

have no justification.'”

By these comments, the Court was merely indicating that

journalists would have an effective remedy if bad faith

harassing subpoenas were employed against them. The

remedy suggested was a screening remedy, and it was

available on a case-by-case basis because the Court would

necessarily be called upon to enforce the subpoenas on a

case-by-case basis. Thus, the Court did not contemplate

‘ase-by-case ba/ancing at all, for if subpoenas were issued

in bad faith, there would be no legitimate Government

interest to balance against the journalist’s interests;

‘ather it would be a question of screening out bad faith

subpoenas,"

' 408 U.S. 707-708 (Footnote omitted).

? Justice Powell’s concurring opinion in BPranzburg is fully

consistent with this analysis. It focuses on the concluding por-

tion of the Court’s opinion and reiterates that there is a rem-

edy available to reporters in the event of bad faith harassment:

As indicated in the concluding portion of the opinion, the

Court states that no harassment of newsmen will be toler-

ated. Indeed, if the newsman is called upon to .. . impli-

cate[] confidential source relationships without a legiti-

mate need of law enforcement, he will have access to the

Court on a motion to quash ... . 408 U.S. at 709-10 (em-

phasis added).

Although Justice Powell refers to case-by-case “balancing,” it

is clear that he is actually referring to the availability of jndi-

60a

The competing interests assertedly at stake in this case

can easily be balanced and resolved once and for all.

Indeed, if one reads Branzburg, as plaintiffs do, as in-

volving the balancing of interests virtually identical to

those here, then it is significant that the Court bal-

anced these interests but once. The question presented

in the instant case is simply whether the public interest

in ensuring the effectiveness of good faith felony in-

vestigations is sufficient to override the burden on news-

gathering which is said to result from permitting Gov-

ernment inspection of toll-call records which might dis-

close the identity of journalists’ secret sources. In our

view, Branzburg dictates an outcome in favor of law-

enforcement “interests.”

In the first place, the burden placed on journal-

ists by Branzburg is substantially more onerous than

the burden that would be placed on them by being sub-

‘ . “a d

ial case-by-case screening out of bad faith “improper an

prejudicial” interrogation. Indeed, this court has already so

interpreted Justice Powell’s opinion in Jn re Possible Viola-

tions of 371, 641, 1503, 564 F.2d 567 (D.C, Cir. 1977):

The Branzburg decision did not leave newsmen com-

pletely without protection from indiscriminate probing for

news sources. In particular, the Court observed that

official harassment of the press undertaken solely to dis-

rupt a reporter’s relationship with news sources would

clearly be subject to judicial control. In a separate opin-

ion, Mr. Justice Powell, who also concurred in the opin-

ion of the Court, emphasized and elaborated upon this

aspect of the majority opinion... .

We conclude that Branzburg squarely rejected the very

privilege appellant asserts that it established. A newsman

can claim no general immunity, qualified or otherwise,

from grand jury questioning. On the contrary, like all

other witnesses, he must appear and normally must an-

swer. If the grand jury’s questions are put in bad faith

for the purpose of harassment, |e can call on the courts

for protection.

6la

ject to toll-call-record inspections. There is no way for

journalists to circumvent the rigors of Branzburg. They

can take every secrecy precaution and be as discrete

as possible, and still be directly compelled to disclose

their secrets, In contrast, the real burden that the possi-

bility of toll-eall-record inspections places on journalists

is mere inconvenience. Journalists and sources can eas-

ily take steps to avoid detection. It is therefore highly

questionable that existing accessibility of toll-call records

deters or inhibits potential sources any more than they

are already inhibited by the Branzburg rule.

In the second place, it remains unclear how often and to

what extent informers are actually deterred from furnish-

ing information by the mere fact that toll-call records

may be subpoenaed by the Government. The record does

not provide even one genuine instance of such inhibi-

tion.’ More significantly, the plaintiffs’ own affidavits in-

dicate that sources generally are apprehensive about the

circumspection of the journalists themselves, and coop-

erate only on the basis of the journalist’s personal as-

surance of confidentiality; there is no indication that

sources are especially inhibited by the contingency of

toll-call record subpoenas any more than they are by the

prospect of third-party detection in general.

Finally, as the Branzburg Court pointed out, it is

difficult to take seriously claims that toll-record sub-

poenas will appreciably constrict the flow of information

to journalists.” Journalists’ records have been subject to

such subpoenas for 50 years, and during this time, “the

press has flourished” *” and so has its use of confidential

sources.’ Indeed, plaintiffs’ own affidavits aver that the

'°* See discussion at pp. 72-73, infra.

°° 408 U.S. 698-699.

110 Jd,

m Td,

62a

§2

number of sources using telephones has steadily and

dramatically increased in recent years, belying the no-

tion that the existing accessibility of toll-call records has

curtailed the flow of information. It is therefore clear

that “existing constitutional rules have not been a serious

obstacle to either the development or retention of confi-

dential news sources by the press”.’* In the face of these

considerations, if a balance must be struck, then it must

be struck in favor of the general public’s interest in effec-

tive law enforcement investigations.

Under the approach urged by plaintiffs and the dissent

courts will be required to enter into a balancing effort in

each case to determine whether a particular journalist’s

“interest” in suppressing toll-call record data outweighs

the Government’s “interest” in gathering such evidence.

The Court in Branzburg was similarly requested to adopt

a case-by-case balancing approach with respect to jour-

nalists’ claims of testimonial privilege.""’ The Court stated:

“We are unwilling to embark the judiciary on a long

and difficult journey to such an uncertain destination.” '

The Court realized that administration of such a case-by-

case approach “would present practical and conceptual

difficulties of a high order.” ''’

One problem, as the Court in Branzburg recognized, is

that a case-by-case balancing approach will require courts

to devise criteria for estimating the relative exigency of

a particular good faith investigation:

Thus, in the end, by considering whether enforce-

ment of a particular law served a “compelling” gov-

ernmental interest, the courts would be inextricably

involved in distinguishing between the value of en-

ue 5G

8 Td. at 680.

"4 Td, at 703-04.

115 Jd,

63a

€2

forcing different criminal laws. By requiring testi-

mony from a reporter in investigations involving

some crimes but not in others, they would be mak-

ing a value judgment that a legislature had de-

clined to make, since in each case the criminal law

involved would represent a considered legislative

judgment, not constitutionally suspect, of what con-

duct is liable to criminal prosecution. The task of

judges, like other officials outside the legislative

branch, is not to make the law but to uphold it in

accordance with their oaths.'”

A second problem is that a court will have to devise

criteria for estimating the relative importance of certain

information-gathering activities.’ Are a novelist’s in-

terests in protecting his sources less compelling than a

newspapei’s? Is a small-town reporter’s interest in pro

tecting his sources as compelling as a national newspaper

reporter's? Is the seerecy of a source who provides in-

formation on international matters more important than

the secrecy of a source who only provides information on

national or local affairs? In short, courts will be placed

in the position of assigning different “values” to various

exercises of First Amendment rights.

Finally, these mystical distinctions and calculations

would become even more obscure in the context of the es

parte hearing suggested by the dissent. How will the court

in an cv parie hearing come to know the “quantum” of

“press” Interests in any particular case? How will the

Government necessarily know? How is the court going to

balance anything if it does not know what to put on one

side of the scale? '"

In sum, then, where the Government subpoenas a jour-

nalist’s toll-call records in the course of a criminal inves-

Td. at 705.

''? See id. at 705 n.40.

64a

tigation, there is no need for a case-by-case balancing of

the Government’s interests against those of the journalist.

If any balancing is necessary at all, it has already been

done and the balance has been struck in favor of the gov-

ernment. Therefore, plaintiffs’ theory that journalists are

entitled to notice of third-party subpoenas in order to

secure case-by-case balancing must fail. Since there is

no need for case-by-case balancing, there is no need for

prior notice.

B. Plaintiffs’ “Screening” Theory.

In treating plaintiffs’ second theory, two issues must

be addressed: first, whether plaintiffs’ First Amendment

rights would be abridged by defendant telephone com-

panies’ compliance with toll-call-record subpoenas issued

in bad faith as part of an effort to harass plaintiffs and

interfere with their sources of information; and second,

if so, whether prior judicial screening of toll-call-record

Subpoenas is an appropriate remedy.

1, Abridgment of First Amendment Rights by Bad

Faith Subpoenas

When used in good faith, investigative techniques such

as physical surveillance, the gathering of third-party

information through interrogation or subpoena, the col-

lection of information from informants and the placement

of undercover agents are all proper police activities

that violate no constitutional rights of the suspects

involved. However, all investigative techniques are sub-

ject to abuse and can conceivably be used to oppress

citizens and groups, rather than to further proper law

enforcement goals. In some cases, bad faith use of these

techniques may constitute an abridgement of the First

Amendment rights of the citizens at whom they are

directed, be they “journalists” or less exalted citizens.’

"8 See Allee V. Medrano, 416 U.S. 802 (1974); Hague v.

CIO, 307 U.S. 496 (1989).

65a

Plaintiffs contend that, in the past, the Government has

issued subpoenas for their toll-call records, not in further-

ance of bona fide felony investigations, but in order to

harass plaintiffs in their journalistic information-gather-

ing activities. Plaintiffs assert that these bad faith sub-

poenas violated their First Amendment rights. Whether

or not these particular allegations are true, there can be

no doubt that, as a general proposition, such bad faith

action would constitute an abridgment of a journalist’s

First Amendment rights at /eas! in some cases, if not in

every case.'’’ In Branzburg, the Supreme Court specific-

ally stated that the First Amendment protected news-

gathering from such abusive assaults:

|Njews gathering is not without its First Amend-

ment protections, and grand jury investigations if in-

stituted or conducted other than in good faith, would

pose wholly different issues for resolution under the

First Amendment. Official harassment of the press

undertaken not for purposes of law enforcement but

to disrupt a reporter’s relationship with his news

sources would have no justification.’

Thus, while the First Amendment does not immunize

the information-gathering activities of a journalist or

any other citizen from good faith law enforcement inves-

tigation, it does protect such activities from official

harassment. Unlike good faith investigation to which all

citizens are subject, official harassment places a special

burden on information-gathering, for in such cases the

ultimate, though tacit, design is to obstruct rather than

to investigate, and the official action is proscriptive

rather than observatory in character. Thus, plaintiffs’

initial premise that bad faith toll-record subpoenas may

operate as an abridgment of their First Amendment

rights is correct.

1° Branzburg V. Hayes, 408 U.S. 665, 707-08 (1972).

20 Td, (footnote omitted).

66a

2. Prior Judicial Screening—an Equitable Remedy

Unjustified Factually on this Summary Judgment

Record

Plaintiffs have not sought damages for the past in-

stances of bad faith harassment which they allege.

Rather, plaintiffs have sought extraordinary prospective

relief by which they are to be protected from future sub-

poenas—a procedural remedy by which piaintiffs must be

notified of any subpoena directed at their toll-call records

so that they may prompt a judicial determination as to

whether or not the subpoena has been issued in connec-

tion with a bona fide investigation. In short, plaintiffs

seek an ongoing judicial audit of future government

investigations in order to screen out bad faith subpoenas.

Such extraordinary anticipatory relief cannot be justi-

fied merely on the ground that toll-record subpoenas

might possibly be abused in the future so as to effect

an infringement of plaintiffs’ First Amendment rights.

If the mere possibility of future government misconduct

were sufficient to warrant such prophylactic relief, then

the courts would be called upon to superintend virtually

all investigative activity. Much more than the mere

possibility of future official misconduct is needed to

justify this type of judicial intervention.

It is fundamental that in order to obtain the kind of

equitable relief sought in this case, a plaintiff “must

show not only that there is an imminent threat of harm

but also that the threatened harm is irreparable.” “' A

party invoking equitable intervention in the criminal in-

vestigative process has a particularly heavy burden, Only

the most extraordinary circumstances warrant anticipa-

tory judicial involvement in criminal investigations.

121 O, Fiss, Injunctions 9 (1972) (emphasis added). See u/so

Younger V. Harris, 401 U.S. 87 (1971); Dombrowsii V. Pyister,

380 U.S. 479 (1965).

67a

Even where federalism concerns are absent, the funda-

mental concept of separation of powers dictates judicial

restraint. The powers of criminal investigation are com-

mitted to the Executive branch. The balance between

the Executive and Judicial branches would be profoundly

upset if the Judiciary assumed superintendence over the

law enforcement activities of the Executive branch upon

nothing more than a vague fear or suspicion that its

officers will be unfaithful to their oaths or unequal to

their responsibility. As the Supreme Court stated in

Laird v. Tatum:

Carried to its logical end, this approach [of judicial

supervision of military intelligence activities | would

have the courts as virtually continuing monitors of

the wisdom and soundness of Executive action; .. .

it is not the role of the judiciary, absent actual

present or immediately threatened injury resulting

from unlawful governmental action.

Since plaintiffs in this case contend that their First

Amendment rights are violated by bad faith subpoenas

122 408 U.S. 1, 15 (1972). See also Socialist Workers Party

v. Attorney General, 510 F.2d 253 (2d Cir. 1974) (injunc-

tion against FBI surveillance of SWP convention held abuse

of discretion), application for stay denied, 419 U.S. 1314

(1974) (Justice Marshall, as circuit justice) (“(Ojur abhor-

rence for abuse of governmental investigative authority can-

not be permitted to lead to an indiscriminate Willingness to

enjoin undercover investigation of any nature, whenever a

countervailing First Amendment Claim is raised.”).

The broad power in the police and the grand jury to probe

widely for evidence of crime is vital because the ability of

the police to go directly to the suspect or his property for

evidence of guilt is significantly limited by Fourth and Fifth

Amendment protections. The Government is therefore re-

mitted to more extensive surveillance and circumstantial in-

vestigation to detect criminality. A court should not interdict

these investigations in the absence of clear proof of bad faith

or arbitrariness.

68a

issued for harassment purposes, then in order to justify

anticipatory relief each individual plaintiff must show (1)

that there is an imminent threat that the Government

will subpoena his toll records in bad faith, (2) that such

subpoena will cause him substantial and irreparable harm,

and (3) that his remedy at law is inadequate. And, still,

a grant of anticipatory relief is a matter of equitable dis-

cretion and must depend in each case on an assessment

of all relevant circumstances. In order to meet this bur-

den, plaintiffs contend that the past instances of toll-

record subpoenas reflected in the record establish a pat-

tern of bad faith harassment; that this pattern indicates

the imminence of future bad faith subpoenas; that such

subpoenas will cause irreparable injury; and that, hence

they are entitled to equitable relief to prevent the recur-

rence of irreparable injury which is clear and imminent.

This case comes before us on cross motions for sum-

mary judgment. Under Rule 56(c) of the Federal Rules

of Civil Procedure, summary judgment is to be rendered

only when there is ‘‘no genuine issue as to material fact’’

and “the moving party is entitled to judgment as a matter

of law.” As this Court recently stated:

In assessing the motion, all “inferences to be drawn

from the underlying facts contained in [the mo-

vant’s|] materials must be viewed in the light most

favorable to the party opposing the motion.” Indeed,

“the record must show the movant’s right to |sum-

mary judgment] ‘with such clarity as to leave no

room for controversy’, and must demonstrate that

his opponent ‘would not be able to | prevail] under

9 99

any discernible circumstances’,

Summary judgment is unavailable if it depends

upon any fact that the record leaves susceptible of

dispute. Facts not conclusively demonstrated, but

essential to the movant’s claim, are not established

merely by his opponent’s silence; rather, the movant

must shoulder the burden of showing affirmatively

69a

the absence of any meaningful factual issue. That

responsibility may not be relieved through adjudica-

tion since “{t]he court’s function is limited to ascer-

taining whether any factual issue pertinent to the

controversy exists [and] does not extend to the res-

olution of any such issue.” ***

Applying these principles to the case at bar, it is clear

that the District Court was correct in granting defend-

ants’ motion for summary judgment with respect to ten

of the 15 plaintiffs, namely, The Reporters’ Committee

for Freedom of the Press, Dow Jones & Co., Inc., Mar-

quis W. Childs, Emmett Dedmon, Morton Mintz, Bruce

Morton, John Pierson, Richard Salant, Daniel Schorr, and

Frederick Taylor. These plaintiffs failed to adduce any

evidence from which it could be inferred that their toll-

call records had ever been subpoenaed in bad faith in the

past or that their records were in imminent danger of

being subpoenaed in bad faith in the future. Therefore,

the District Court’s summary judgment against these ten

plaintiffs is affirmed.

However, the remaining five plaintiffs have adduced

evidence that their toll-call records were inspected by the

Government in the past. Viewing this evidence in the

light most favorable to plaintiffs, it is at least a possible

inference that the Government acted in bad faith in issu-

ing these past subpoenas. Also, it is possible that, upon

further proof, the circumstances of these past inspections

might indicate the :mminence of further abuse. Though

it is a close question, it appears that these five plaintiffs

have adduced just enough evidence to withstand defend-

ants’ motion for summary judgment. Therefore, the Dis-

trict Court’s action in granting summary judgment

against these five is reversed.

123 National Association of Government Employees Vv. Camp-

bell, No. 76-2010, slip op. at 8-9 (D.C. Cir. 9 May 1978) (foot-

notes omitted).

70a

Furthermore, it is clear that the District Court acted

properly in denying plaintiffs’ motion for summary judg-

ment. At this stage, the five remaining plaintiffs have

failed to lay an adequate foundation for the exceptional

remedy they seek. Since plaintiffs have relied on the oc-

currence of past abuses to justify equitable intervention,

then the critical factual issue in the case is whether there

indeed has been official abuse in the past. Only when this

factual issue has been resolved in favor of plaintiffs does

the remedial issue arise as to whether the past misconduct

is sufficient to warrant the extraordinary relief sought.

Yet, this critical factual issue is in genuine dispute. The

defendant United States emphatically claims that the five

past subpoenas directed at plaintiffs’ toll-call records were

all issued in connection with bona fide felony investiga-

tions, i.e., there has been no pattern of official abuse in

the past which could possibly justify the anticipatory re-

lief sought by plaintiffs. Affidavits, depositions, and an-

swers to interrogatories all present information support-

ing this contention. Plaintiffs, on the other hand, assert

that in these past instances “the Government had, at most,

only a highly tenuous law enforcement justification for

seeking to scrutinize plaintiffs’ news-gathering activi-

ties.” *** Therefore, this case must be remanded to the

District Court. If the remaining plaintiffs determine to

pursue this suit, then the issue of bad faith must be

resolved in the District Court. If on remand the District

Court finds no record of past abuse, and no other basis

to anticipate impending future misconduct, then plaintiffs

will have failed on their claim for equitable relief. If,

however, the District Court finds that there has been a

pattern of abuse in the past, then the appropriate judi-

cial response must be determined at that time.

In sum, then, while we accept the notion that otherwise

legitimate investigative techniques may be abused in such

4 Brief for Appellants at 8.

Tla

a way as to abridge the First Amendment rights of the

persons at whom they are directed, and while we also

accept the proposition that harassing toll-record subpoenas

can abridge journalists’ First Amendment rights, we be-

lieve that there is a genuine dispute in this case as to

Whether past toll record subpoenas were in bad faith,

and therefore any equitable relief predicated on a finding

of past official abuse is premature.

It must be stressed that even if the remaining plaintiffs

establish, and the District Court finds, that there have

been past instances of abuse, it does not necessarily mean

that each plaintiff will be entitled to prior notice of fu-

ture subpoenas. As already stated, in order to obtain the

kind of anticipatory relief sought in this case, each indi-

vidual plaintiffs must show not only that le personally

faces an imminent threat of harm but also that the

threatened harm 7s irreparable. In addition, each plain-

tiff must show that his remedy at law is inadequate. As

the record now stands, plaintiffs have not made a sufficient

showing as to any of these requirements.

First, there is little indication in the record that plain-

tiffs have suffered, are suffering, or will suffer substan-

tial and irreparable harm. Plaintiffs have alleged that

substantia! injury occurs to their journalistic activities

by disclosure of their telephone billing records. Plaintiffs

have attempted io elevate that allegation to the level of

an uncontroverted fact, by stating:

There can be no question bui that serious and ir-

reparable jury {sic| is done to a reporter’s First

Amendment rights when the Government obtains un-

supervised access to his toll reecords.**’

However, the information developed in the course of dis-

covery so far provides no clear evidence that either past

instances of such disclosure or the prospect of future

'* Brief for Appellants at 22.

72a

disclosure have caused such injuries. To support an alle-

gation that disclosure of toll-billing records “drastically

curtails” plaintiffs’ ability to gather news, individual

plaintiffs provided only their conclusions of what would,

could, or might happen if sources could not be guaranteed

confidentiality. In each case plaintiffs were merely specu-

lating.**”

Even as to past injury, no plaintiff has demonstrated

that he has ever lost a source as a result of a bad faith

subpoena of his telephone billing records. The United

States directed interrogatories to each plaintiff inquiring

as to loss of sources from toll record inspection. Each

plaintiff responded that the inquiry was not applicable.

Two plaintiffs did indicate that information from con-

fidential sources ceased at times coincident with the secur-

ing of telephore billing records by federal investigators.

In other words, plaintiffs have provided only two in-

stances over a five year period to support their claim

that disclosure to others of toll-call records effects a

“drastic curtailment” of their journalistic functions.

Even in these two instances, however, the plaintiffs’

failed to show that the injury resu/ted from federal law

enforcement access to telephone toll-billing records. In

the first instance, plaintiff David E. Rosenbaum stated:

In one instance, I stopped contacting one source

after learning of an Internal Revenue Service sub-

poena for my telephone records because of concern

that our relationship might jeopardize his career.’*’

Clearly this unilateral decision by Mr. Rosenbaum to

terminate a reporter-source relationship is not sufficient

evidence to support a contention that a source has been

chilled.

126 YA. 167-198.

127 J.A. 188. ‘ .

73a

In the second instance, plaintiff Jack Anderson re-

sponded that in the course of a federal law enforcement

investigation in which toll-billing records were utilized,

some of his sources were questioned. He further stated

that: “With only one exception, I never received any

information from any of the sources again.” *** However,

in responding to inquiry as to whether the refusal of any

source to provide further information could be attributed

to this disclosure he responded, “I do not know whether

these sources stopped or refused to provide further in-

formation, or whether they simply never again had any

information which they wished to provide to me.” * This

conclusion certainly does not support an allegation of

injury as to his ability to gather and disseminate news

as a result of governmental access to toll-billing records.

As exemplified by the foregoing references to the record,

it is clear that plaintiffs have thus far failed to provide

sufficient factual support for their assertion that unsuper-

vised toll-record subpoenas result in substantial and ir-

reparable injury to their news-gathering activities. At

this stage, that assertion remains nothing more than

speculation.’”

Moreover, plaintiffs have so far failed to demonstrate

an “imminent threat of harm.” In order to meet the

imminency requirement, plaintiffs in general have usually

been required to show a pervasive pattern of past abuse

such as will indicate a continuing program of miscon-

duct.'** Courts have frequently denied anticipatory relief

128 J.A. 267.

139 JA. 267.

180 Cf. Branzburg V. Hayes, 408 U.S. at 693-694.

131 Rizzo V. Goode, 423 U.S. 362, 373-75 (1976); Allee v.

Medrano, 416 U.S. 802, 815 (1974); Lewis v. Kugler, 446

F.2d 1343 (3d Cir. 1971); Lankford v. Gelston, 364 F.2d 197

(4th Cir. 1966).

74a

when plaintiffs have failed to establish such a pattern."

In Long v. District of Columbia, the proprietor of a

jewelry store had reported to the police that plaintiff, a

“suspicious person,” was in his store. On the basis of this

report, the police initiated an investigation, went to the

store and frisked plaintiff. Plaintiff “sought to enjoin the

police from stopping and frisking individuals in any

manner not in accord with their constitutional rights,

alleging the actions complained of ... to be typical and

to be violative of constitutional rights.” '* In denying

relief this Court said:

Considerations of policy dictate that the courts

act cautiously in granting injunctions against police

action, A court should not bind the hands of the

police on the mere possibility that certain conduct

may be repeated. To do so would unnecessarily in-

volve the courts in police matters and dictate action

in situations in which diseretion and flexibility are

most important. lv order for a court to grant an

injunction, there should he a showing that there is

a substantial risk that fulure riolations will oceeur.

In order to show a substantial likelihood of future

conduct. a clear patiern of harassment must he

shown. Nuch ‘! nattern should consist of frequent

acts of misconduct hy police officers, which acts were

known to the superior officers of the police force.'”

Although establishing a pattern of past abuse has been the

most common way of showing imminency, it is by no

182 Rizzo V. Goode, 423 U.S. 362 (1976); Long V. District of

Columbia, 169 F.2d 927 (D.C. Cir. 1972); Wilson v. Webster,

315 F.Supp. 1104 (C.D. Cal. 1970), vacated and re manded,

467 F.2d 1282 (9th Cir. 1972) (denial of inipfction held

proper): Hughes V. Rizzo, 282 F.Supp. 881 (E.Dé Pa. 1968).

133 469 F.2d 927 (D.C. Cir. 1972).

134 Td, at 929.

135 Td, at 932.

75a

means the only way to meet that requirement; the appro-

priate manner of demonstration depends on the circum-

stances of each case.” Still, the cases involving patterns

of past misconduct do illustrate that a clear factual foun-

dation must be laid in order to warrant prospective relief

of the kind sought here.

In this case, plaintiffs have alleged only five instances of

misconduct over a five year period.’ Most significantly,

there have been no toll-record subpoenas directed at plain-

tiffs, and—as far as the record indicates—any other

journalist, since 1 March 1974, over four years ago.

Since that date AT&T has had in effect a new policy

providing for notice to subscribers of toll-record sub-

poenas except in cases where the Government certifies

that notice could interfere with an ongoing investigation.

Moreover, the Department of Justice has issued guide-

lines under which certification generally is not to be

made in cases involving completed offenses.** There is no

indication that under this new regime notice will be

withheld from journalists in the future. It is thus clear

that plaintiffs have so far failed to demonstrate that the

alleged threat of future harm is, in any sense, clear and

imminent—for this must be tested relative to the new

AT&T policy effective 1 March 1974, not by practices

undeniably abandoned.“

136 See part II of Judge Robinson's opinion.

‘87 Brief for Appellants at 7.

138 JA. 165.

99 See Zurcher v. Stanford Daily, Nos. 76-1484, 76-1600

(U.S. Sup. Ct. 31 May 1978) (“The fact is that respondents

. . . have pointed to only a very few instances in the entire

United States since 1971 involving the issuance of warrants

for searching newspaper premises. This reality hardly sug-

gests abuse; and if abuse occurs, there will be time enough to

deal with it.’’)

T6a

Finally, plaintiffs have not shown that their remedy

at law is inadequate. Under AT&T’s new policy, plain-

tiffs will always be able to discover that a Government

subpoena has been issued for their toll-call records. By

placing their names on file with their telephone com-

panies, plaintiffs can assure that they will be notified

of a certificated subpoena as soon as the 90-day period

and subsequent extensions, if any, expire. This guar-

antees that plaintiffs will have the opportunity to bring

post hoc Bivens-type damage suits in any case in which

they believe the Government was acting in bad faith.

Thus, the inevitability of damage suits would pose a

significant deterrent to future Government misconduct,

making totally unnecessary any type of equitable relief.

The dissent’s position in this regard is unsound.

According to the dissent, a plaintiff must show only two

things in order to be entitled to the extraordinary pros-

pective relief sought in this case: first, that he has a

First Amendment right, and, second, that there exists an

investigative technique that might possibly be used in bad

faith so as to abridge that right. Under this approach,

once a plaintiff has shown the existence of a right and

the mere possibility of its infringement, he becomes en-

titled to insist that the Judicial branch superintend gov-

ernment investigations in order to prevent this hypo-

thetical abuse.

This position is in direct conflict with the most funda-

mental tenets of equity and a series of Supreme Court

cases, most notably Rizzo v. Goode,'* Allee v. Medrano,™

and Laird v. Tatum.’ These cases reflect the well-

established principle that judicial supervision of police

10 423 U.S. 362 (1976).

‘41 416 U.S. 802 (1974).

12 408 U.S. 1 (1972).

aaa tiene eat ee, iia ioe,

77a

activity predicated on the prospect of future abuse must

be based on the imminence of future misconduct. The

mere possibility of future misconduct is simply not

enough.

Beyond the fact that it is utterly in conflict with the

authorities, the dissent’s approach would have the most

absurd and pernicious practical consequences. Up until this

time, it has been the law that a court would not assume

prior review of government investigative action simply

because it feared future misconduct; it would require a

clear showing that such misconduct was a real and immi-

nent prospect. The dissent’s position would completely do

away with this threshold. It would require only the exist-

ence of a constitutional right and the possibility of its

abridgment. It would not base its anticipatory interven-

tion into police investigative action on an actual past

abridgment of rights, nor on a present abridgment of

rights, nor on a probability of future abridgment of rights,

but rathe: on a mere possibility of future abridgment of

rights. This approach has no logical stopping point. There

is no person in the United States who cannot meet these

criteria.

Any person can establish the existence of a First

Amendment right and of an investigative technique that

could possibly be employed in bad faith so as to violate

that right. Consider the following example. Suppose that

some recognized leader of organized crime in the United

States files suit in district court for a declaratory judg-

ment that he must receive prior notice of any physical

surveillance conducted against him. He claims (1) that

he has a First Amendment right to association and (2)

that physical surveillance could be used against him in

bad faith, not for any legitimate law enforcement pur-

pose, but rather to harass him in his personal relation-

ships. He alleges, quite reasonably, *hat the very possi-

bility of abusive surveillance deters people from associat-

78a

ing with him. He alleges further that each time he is

placed under physical surveillance he suffers irreparable

harm to his assaciational rights because some of his con-

fidential associates are exposed. He moves for summary

judgment. Under the dissent’s approach there is no prin-

cipled reason why this organized crime figure would not

be automatically entitled to precisely the same anticipa-

tory remedy sought by the “conceded journalists” in the

instant case. Why should he not be able to insist on prior

notice, or at least ex parte judicial oversight, of any physi-

cal surveillance directed at him?

It is not normally the role of the courts to hover over

law enforcement officers, reviewing, approving, and moni-

toring each step of a criminal investigation in order to

satisfy itself that the officers are acting in good faith.

The dissent declares its willingness to engage in this

kind of supervision and to assume the administration of

criminal investigations based solely on its own suspicion

that the officers who are constitutionally charged with law

enforcement responsibility will not be equal to the task

and will act in bad faith as often as not. The dissent

seems surprised that we are willing to permit Executive

officials to perform their constitutional function and exer-

cise their discretion without a prior judicial determina-

tion that they are acting in good faith. But in our view

it is to these officers that the investigative power is com-

mitted in the first instance by law, and it is in these offi-

cers that it should rest in the first instance until an ade-

quate reason for judicial preemption is established.

C. Summary

Plaintiffs have contended that they have a right to re-

ceive prior notice of toll-record subpoenas issued in

the course of criminal investigations. They have predi-

cated this right on the supposed necessity for case-by-

case judicial balancing (on the theory that good faith

79a

subpoenas may abridge their First Amendment rights)

and on the supposed necessity for case-by-case judicial

screening (on the theory that bad faith subpoenas may

abridge their First Amendment rights).

First, by now it is undeniably clear that there is no

need for case-by-case balancing where toll-record sub-

poenas have been issued in criminal investigations. It

is undeniably clear because, one, good faith subpoenas

do not abridge plaintiffs’ First Amendment rights and,

two, any judicial balancing of interests that may be

called for need only be performed once, and such balance

is to be struck in favor of the public’s interest in effective

law enforcement.

Second, it is also undeniably clear that plaintiffs have

not yet established their entitlement to a case-by-case

screening of toll-record subpoenas. While we have agreed

in theory that subpoenas issued in bad faith may in some

cases abridge First Amendment rights, all precedent for-

bids the Judiciary to assume superintendence of criminal

investigations merely on the suspicion that Executive offi-

cers may act in bad faith in the future, and only permits

such judicial intervention when a plaintiff establishes a

clear and imminent threat of such future misconduct.

Plaintiffs here have so far failed to lay an adequate

foundation for such judicial intervention. The five re-

maining plaintiffs will have the opportunity to meet this

heavy burden on remand.

Affirmed in part

and

Remanded in part

8la

ROBINSON, Circuit Judge, concurring in part and con-

curring in the result: I agree that appellants have not es-

tablished 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 war-

vanted, the constitutional interests appellants assert. In

the same breath i hasten to acknowledge that certain

of the appellants have brought forth enough to demon-

strate 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,’ 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’* and what considerations might bear

on the proceedings on remand.’

As a preliminary matter, I think it is relevant, though

by no means dispositive, that appellants lack a constitu-

tionally protectable interest in the privacy—simply for

privacy’s sake—of their toll records.* The proposition

that news reporters, who may have occasion to contact

confidential sources by long-distance telephone, are with-

‘ 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)(1)(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 concen-

trates on the burden inflicted on protected activities, and the

result may not always coincide with that attained by appli-

cation of Fourth Amendment doctrine.

82a

out reasonable expectations in that regard may not seem

entirely self-evident. But as, by my reading, the Su-

preme Court’s decision in Miller® inescapably applies to

the situation at bar,’ 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 ju-

dicial oversight akin to that exercised over warrant ap-

plications,’ 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.’

I agree also that under Branzburg”’ 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." No more than grand jury inquiries

can governmental investigations into criminality be halted

by impenetrable walls thrown up about reporters and

their secret sources.'' I would add that the breadth of

° United States v. Miller, 425 U.S. 485. 96 S 6

L.Ed.2d 71 (1976). ’ ) Ct. 1 19, 18

"See Part III of Judge Wilkey’s opinion.

*See Zurcher v. Stanford Daily, ——- U.S. —~—, 98 S.C

1970, —— L.Ed.2d —— (1978). basa

‘See Part IV of Judge Wilkey’s opinion.

* Branzburg V. Hayes, 408 U.S. 665. 92 S.Ct. 2

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