# Appendix — Reporters Committee for Freedom of the Press v. American Telephone & Telegraph Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2033%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 440 U.S. 949 ## Text [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, Ve 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 a. 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 la la 8la 10la lb APPENDIX A (Opinion of the Court of Appeals for the District of Columbia Circuit) la United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 76-2057 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, ET AL., APPELLANTS V. 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. 2a 2 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 8a 3 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. da 4 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. 5a 5 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 6a 6 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, 8a 8 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. © J.A. 40. 9a 9 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. © JA. 7-15. 10a 10 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 ll 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 12 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 14 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. ut Lda } cr 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 16 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 17 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 18 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 19 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 20 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 21 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). © United States v. House, 524 F.2d 1035, 1044 (8rd Cir. 1975) (use of evidence obtained through summonsless seizure 22a 22 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 23 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 24 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 25 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 26 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 27 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 28 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- a 29a 29 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 30 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 32 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 33 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 34 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 35 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 36 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 37 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 38 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 39 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 40 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”). a 4la 41 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 42 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 43 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 44 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). LL ae 45a 45 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 46 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 47 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 48 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 49 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 50 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). SS 5la 51 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 52 “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 53 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 54 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 55 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 56 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 57 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 59 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 60 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 61 Wy 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2033%3A2. Public record. Not legal advice.