Unprivileged

Last night reader Leo McGinty promptly alerted us to yesterday’s Second Circuit decision involving the New York Times. Mr. McGinty wrote:

Today the Second Circuit reversed District Judge Sweet (2-1, Sack dissenting) and remanded for entry of a declaratory judgment to the effect that on the facts presented no recognized doctrine of qualified privilege is sufficient to quash or limit the grand jury subpoena issued by Patrick Fitzgerald’s office for reporters’ telephone records. This is the case where NY Times reporters Judith Miller and Philip Shenon are alleged to have received confidential tips in advance of FBI searches of two foundations putatively acting as fronts for terrorist organizations. The reporters then allegedly tipped the two foundations to the imminent searches of their offices and the freezing of their assets. The government sought telephone and other records related to the reporters’ confidential sources. The Second Circuit holding is in line with the holding of the D.C. Circuit in the earlier “Judith Miller” case. The opinion reads like a (narrow) victory for common sense. Hopefully it and subsequent grand jury proceedings will further expose the twisted culture of the Times.

The Second Circuit decision is available on the Second Circuit Web site here. Today’s New York Sun carries an excellent story by Joseph Goldstein on the decision: “Court hands New York Times a setback in Miller case.”

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