Opinion · Court of Appeals for the D.C. Circuit

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

593 F.2d 1030

Type: Opinion
Court: Court of Appeals for the D.C. Circuit
Jurisdiction: Federal
Date: 1979-03-05
Topic: general

noting that “a telephone subscriber has no Fourth Amendment interest in local call records obtained by means of a pen register installed without his knowledge” | explaining that plaintiffs are usually required to show “a clear factual foundation” establishing “a pervasive pattern of past abuse” in order to prove that future harm is imminent | "journalists would have an effective remedy if bad faith harassing subpoenas were employed against them." | “journalists would have an effective remedy if bad faith harassing subpoenas were employed against them.” | “Only the most extraordinary circumstances warrant anticipatory judicial involvement in criminal investigations.”

Citator

Cited by: 65 opinions

REPORTERS COM. v. AM. TELEPHONE TELEGRAPH,593 F.2d 1030(D.C. Cir. 1978)

REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS ET AL., APPELLANTS, v. AMERICAN

TELEPHONE TELEGRAPH COMPANY ET AL.

No. 76-2057.

United States Court of Appeals, District of Columbia Circuit.

Argued October 18, 1977.

Decided August 11, 1978.

As Amended December 12, 1978.

Certiorari Denied March 5, 1979.

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Lloyd N. Cutler, Washington, D.C., with whom David R. Anderson, Ronald J. Greene, William J. Kolasky, Jr., Washington, D.C., and Alan B. Sternstein, Rockville, Md., were on the brief, for appellants.

David Ginsburg, Washington, D.C., with whom Lee R. Marks, James E. Wesner, Washington, D.C., F. Mark Garlinghouse, New York City, James A. DeBois, San Francisco, Cal., Robert A. Levetown, and John M. Kelleher, Washington, D.C., were on the brief, for appellees American Tel. Tel. Co. and Chesapeake Potomac Tel. Co.

D. Jeffrey Hirschberg, Atty. Department of Justice, Washington, D.C., with whom George W. Calhoun and Stanley Dalton Wright, Attys., Department of Justice, Washington, D.C., were on the brief, for appellee United States of America. Elizabeth Gere Whitaker, Atty. Department of Justice, Washington, D.C., also entered an appearance for appellee United States of America.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 74-1889).

Before WRIGHT, Chief Judge, ROBINSON and WILKEY, Circuit Judges.

Opinion for the Court filed by WILKEY, Circuit Judge.

Opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge, concurring in part and concurring in the result.

Dissenting opinion filed by J. SKELLY WRIGHT, Chief Judge.Page 1036

WILKEY, Circuit Judge:

[1] Plaintiffs in this action are two newspaper-publishing corporations;¹twelve individual journalists;²and the "Reporters' Committee for Freedom of the Press," a legal research and defense fund organization established to protect the interests of the institutional press. The defendants in this case are the American Telephone and Telegraph Company ("ATT") and the Chesapeake and Potomac Telephone Company ("CP"). Plaintiffs brought suit in the District Court for declaratory and injunctive relief, claiming that theFirstandFourthAmendments require that prior notice be provided to them before defendants turn over their long distance telephone billing records to Government law enforcement officials. The United States intervened as a party defendant. The District Court denied plaintiffs' motion for summary judgment and granted the summary judgment motion of defendants and of the United States. With respect to plaintiffs Jack Anderson, Richard Dudman, James R. Polk, David E. Rosenbaum and Knight Newspapers, we reverse the District Court and remand the case. We affirm the District Court's grant of summary judgment against the other plaintiffs.

[2] I. THE FACTS

[3] A.The Records in Question and Their Usefulness in LawEnforcement

[4] Telephone companies, like other businesses, maintain for billing purposes records of the services they provide their customers. Company billing records for local calls contain only the total number of local message units charged to a customer, but no details concerning specific calls.³However, company billing records for long distance calls, referred to as "tollcalls," contain, foreachlong distance call charged to the customer's number, a notation of the number called and the date, time, and duration of the call.⁴Telephone companies retain these "toll-call" records for a period of six (6) months.⁵Telephone subscribers are aware that these records are maintained, since they receive copies of them with their phone bills each month.

[5] For at least the past 50 years, state and federal law enforcement officials have used information from telephone company toll-billing records in criminal investigations and prosecutions.⁶The telephone companies have generally cooperated with law enforcement efforts and, in response to official requests, have made their business records available for inspection.

[6] The toll-call records are useful investigative tools because the information they contain sometimes provides circumstantial evidence that there has been contact between a subscriber and some other person. There are limits 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 reflectonlylong distance callscharged to the subscriber's number.Thus, they cannot be used to trace calls made to or from the subscriber's telephone but charged to some other number. Moreover, toll records arePage 1037not maintained for pay phones or for individual extensions of general business telephones and thus cannot 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.

[7] Despite these limitations, toll-billing records have become an invaluable law enforcement aid. They have been most successfully used in the investigation and prosecution of organized crime and major narcotics offenses.⁷Law enforcement agencies and grand juries currently issue subpoenas and summonses for toll-call records relevant to felony investigations at the rate of approximately 2,000-3,000 each month.⁸

[8] Defendant ATT and the associated companies of the Bell Telephone System operate a nationwide telecommunications network.Page 1038Defendant C P is an associated company of the Bell System, providing telephone services for the District of Columbia. ATT has no telephone subscribers 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.

[9] B.Limitations on Disclosure Under the ATT Policy

[10] 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, however, ATT adopted throughout the System a formal policy on the release of such records. This policy, which is currently in effect, has three important provisions.

[11] First, the policyprohibitsthe 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.⁹

[12] Second, the policy requires that subscribers whose toll-billing records have been subpoenaed in civil suits, non-criminal investigations, and non-felony criminal investigations beimmediately notifiedupon receipt of the subpoena, the same day by telephone and, in addition, by letter within 24 hours.¹⁰Both the oral and written notification must include theapproximate date on which the company will furnish thetoll-billing records.

[13] Third, the policy requires that subscribers whose toll records have been subpoenaed infelonyinvestigations be similarly notified,unlessthe subpoena is accompanied by a written certification stating (1) that the subpoena or summons was issued pursuant to anofficial investigation of a suspected felonyor an official legislative investigation, and (2) thatnotificationto 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 certification 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 notification.¹¹

[14] The decision to adopt this policy originated solely with ATT; no Government official requested or prompted the action.¹²ATT placed the new policy into effect on 1 March 1974.

[15] C.Impact on Journalists of Toll-Record Subpoenas Prior tothe New Policy

[16] In December 1973 plaintiffs wrote ATT 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 journalists concerned.¹³Plaintiffs also demanded from ATT information concerning any past instances of Government access to their toll-billing records.¹⁴Although ATT did provide this latter information, it refused to give plaintiffs the assurances they demanded.

[17] Finding this response inadequate, plaintiffs filed a complaint 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 theirFirstandFourthAmendment rights.¹⁵The complaint sought a judicial declaration that it was unlawful for defendants to release the toll-billing records of journalists to government investigative agencies without prior notification to the journalists concerned. In addition, it prayed for an injunction barring defendants from releasing plaintiffs' records without such prior notice. The United States intervened as a party defendant.Page 1039

[18] The record developed by plaintiffs in the course of a massive discovery effort reveals that from January 1971 to March 1974, before ATT's new policy went into effect, the Government issuedapproximately 75,000-100,000toll-record subpoenas.¹⁶This reflects the importance of these records as a tool in the investigation of modern crime. The record further reveals, during this same period,only fiveinstances 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.In each of these five instances, thetoll-call records were sought in connection with a felonyinvestigation.One subpoena was issued in the course of an investigation into the suspected theft of Government documents and the receipt of stolen documents, violations of18 U.S.C. § 641;¹⁷three 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;¹⁸andPage 1040one summons was issued in an investigation concerning possible unauthorized disclosure of income tax return information by an employee of the Internal Revenue Service in violation of26 U.S.C. § 7213.¹⁹

[19] D.Impact on Journalists of Toll-Record Subpoenas After theNew Policy

[20] Since ATT adopted its new toll-record policy in March 1974 — over four years ago —approximately 100,000-150,000toll-record subpoenas have been issued by the Government in criminal investigations. The record reflectsno instanceduring this period in which the toll records of a journalist have been sought. Moreover, there is no clear indication in the record that, under ATT's new policy, a journalist would not receive timely notice of any future subpoena directed at his records.

[21] The dissent has attempted to expand the issues presented in this case by suggesting that plaintiffs' toll records are presently subject to subpoena without prior notification in a broad range of civil and administrative proceedings. This ispurespeculation, 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 notfind any evidence in the record that it is Government practice tosubpoena toll-call records in non-law enforcement matters.Not only does the record fail to revealany instance—before orafter ATT's new policy went into effect— in which a journalist's toll records have been subpoenaed in connection with something other than a felony investigation, but it even fails to reveal an instance in whichany person'stoll-call records have been subpoenaed in connection with a non-law enforcement proceeding. The record evidence strongly suggests that virtuallyalltoll-call record subpoenas are issued in the course of felony investigations. While the dissent grandly enumerates 47 agencies that have subpoena power, the record shows thatonlyfour agencieshave 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.²⁰Page 1041

[22] Thus, the central issue in this case isnotwhether 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.

[23] On 17 August 1976 the District Court granted defendants' motion for summary judgment, rejecting plaintiffs' First as well as theirFourthAmendment claims. This appeal followed.

[24] II. STATE ACTION

[25] Before proceeding to the merits of plaintiffs' claims, we confront, in the case of ATT, the threshold question of "state action." Plaintiffs have maintained, and ATT has vigorously denied,²¹that the latter's cooperation with the Government in unannounced releases of plaintiffs' toll-billing records has so enmeshed ATT in official action as to assimilate its own conduct to that of the Government. The problem ought not detain us, however, because resolution of the governmental-action issue is by no means essential to the outcome of this appeal or to progress of the case on remand. We see no occasion, then, to adjudicate the knotty constitutional question this aspect of the litigation tenders.

[26] In several material respects, governmental action is unquestionably involved in the practice plaintiffs challenge. The Government, through its agencies, itself seeks the toll records; the Government itself shuns notice and judicial pre-clearance thereof; and the Government's potential utilization of the acquired records — not ATT'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 scrutiny.

[27] It is evident, too, that ATT'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 conceivably might secure can, and in our view should, be 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, wereex partejudicial approval to become a prerequisite in any circumstances to release of the records, the Government necessarily would be the initiating party. And surely there is no impediment to enforcement against the Government of any narrower injunctive remedy to which plaintiffs may become entitled.²²

[28] Moreover, in the event that injunctive relief eventuates in this litigation, either as an original matter or to effectuate a declaratory judgment,²³an order directed against the Government will bind ATT as well if only it is apprised of it. Federal Civil Rule 65(d) provides that

[e]very order granting an injunction . . is binding . . . 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 personal service or otherwise.²⁴

Page 1042

[29] It is perfectly obvious that the Government cannot gain access to any toll-billing records save through ATT. By silently delivering those records at the Government's behest, ATT is plainly in "active concert or participation" with the Government in the activity precipitating plaintiffs' grievance.²⁵And if ATT 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.²⁶It matters not that absent a cause of action against the Government itself ATT might entirely avoid plaintiffs' suit²⁷— a matter we do not address. ATT's amenability to the injunction would arise in consequence of a command properly leveled at the Government, and to assure that it will be truly meaningful.

[30] Because, then, plaintiffs can secure directly from the Government any injunctive relief obtainable from ATT and since obedience to any injunction running against the Government can be exacted from ATT on a nonconstitutional basis,²⁸we perceive no compulsion to ascertain whether ATT'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 adjudicative necessity,"²⁹which we are unable to discern here.³⁰

[31] III. PLAINTIFFS'FOURTHAMENDMENT CLAIM

[32] Plaintiffs contend that ATT's policy in certain felony cases of releasing toll-call records to investigators without prior notice to the subscriber violates theirFourthAmendment rights.³¹This claim clearly lacks any merit.

[33] TheFourthAmendment 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 private enclave — a "zone" bounded by the individual'sPage 1043own reasonable expectations of privacy.³²So long as the individual acts within this "zone of privacy", his activities are shielded from unreasonable Government investigation;³³any attempt by the Government to search for or seize evidence fromwithinthis zone must be based on "probable cause" and usually must be preceded by a judicial determination that "probable cause" exists.³⁴However, the protections afforded the privacy interests of the individual by theFourthAmendment are necessarily limited by the public's interest in effective law enforcement; theFourthAmendment does not insulateallpersonal 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 locatedoutsidethe individual's "zone of privacy."³⁵

[34] 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.³⁶In any normal life, even in pursuing his most private purposes, the individual 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 private affair.To the extent an individualknowingly exposes his activities to third parties, he surrendersFourthAmendment protections, and, if the Government issubsequently called upon to investigate his activities forpossible violations of the law, it is free to seek out thesethird parties, to inspect their records, and to probe theirrecollections for evidence.³⁷

[35] In a sense, then, theFourthAmendment carries with it both a promise and a warning. Itpromiseseach individual that there is a zone in which he may conduct his affairs in private, shielded from unwarranted investigative scrutiny, and yet itwarnseach individual that, once he projects his activities beyond this private enclave, the Government is free to scrutinize them for law enforcement purpose.

[36] These principles, consistently adhered to by the Supreme Court, are the basis for the well-settled rule that a person has no expectation of privacy in the businessPage 1044records of a third party and, therefore, has no interest protected by theFourthAmendment in such records.³⁸Accordingly, it has been consistently held by the Supreme Court³⁹and the Courts of Appeals⁴⁰that a person has noFourthAmendment basis for challenging subpoenas directed at the business records of a third party, and, hence, has no right to notice of such subpoenas.

[37] In the most recent Supreme Court case ofUnited States v.Miller,⁴¹the 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 complied, though no notice of the subpoenas had been given respondent. Upon being charged with conspiracy to defraud the United States of tax revenues, respondent made a pre-trial motion to suppress the bank documents, urging that the subpoenas were defective. The District Court denied respondent's motion but was reversed by the Court of Appeals whichPage 1045held that the Government had violated respondents'FourthAmendment 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 noFourthAmendment interest in the bank documents.⁴²The Court further concluded that,since respondent had no interestthat could be vindicated by a challenge to the subpoena,respondent had no right to notice of the subpoenas.⁴³

[38] The Court's decision highlights the principle that "what a person knowingly exposes to the public . . . is not a subject ofFourthAmendment protection":⁴⁴

Respondent urges that he has aFourthAmendment interest in the records kept by the banks because they are merely copies of personal records that were made available to the banks for a limited purpose and in which he has a reasonable expectation of privacy . . . . But inKatzthe Court . . . stressed that "[w]hat a person knowingly exposes to the public . . . is not a subject ofFourthAmendment protection."

Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually viewed and obtained by means of the subpoena, we perceive no legitimate "expectation of privacy" in their contents. . . .

The depositor takes the risk, in revealing hisaffairs to another, that the information will beconveyed by that person to the government. This Courthas held repeatedly that theFourthAmendment doesnot prohibit the obtaining of information revealed toa third party and conveyed by him to governmentauthorities, even if the information is revealed onthe assumption that it will be used only for alimited purpose and the confidence placed in thethird party will not be betrayed.

. . . . .

Since noFourthAmendment interests of the depositor 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.⁴⁵

[39] The general rule that a person has noFourthAmendment basis for challenging subpoenas directed at the business records of third parties has been directly applied to toll-billing records maintained by telephone companies.⁴⁶A telephone subscriber is fully aware when he places a long distance call that the telephone company will make 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 noFourthAmendment basis for challenging Government inspection 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 voluntarily or in response to compulsory process.

[40] Accordingly, in upholding a felony conviction based in part on evidence derived from toll-call records, the Ninth Circuit inUnited States v. Fithian⁴⁷stated:

The introduction into evidence of telephone company records of calls from appellant's residence did not violate hisFourthAmendment rights. The expectation of privacy attaching to telephone conversations relates to the content ofPage 1046the 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.⁴⁸

[41] The courts have invariably taken this position.⁴⁹These precedents soundly dispose of plaintiffs'FourthAmendment claim.

[42] IV. PLAINTIFFS'FIRSTAMENDMENT CLAIMS⁵⁰

[43] Plaintiffs contend that, as journalists, they are entitled under theFirstAmendment to prior notice of toll-call-record subpoenas issued in the course of felony investigations,even ifcitizens in general have no such right.⁵¹Plaintiffs base this claim on two separate and distinct theories.

[44] The first theory relates to the impact ofgood faithtoll-call-record subpoenas on plaintiffs'FirstAmendment rights and the need for judicialbalancingbefore such records are released to Government investigators. Plaintiffs develop this theory as follows:

(1) TheFirstAmendment guarantees journalists the freedom to gather information from clandestine sources.

(2) Because toll-call-records may disclose the identity of a clandestine source, thisPage 1047freedom is abridgedwheneverthe Government gains access to a journalist's toll records, even where access is gained in the course of agood faithfelony investigation.

(3) In order to determine whether this infringement onFirstAmendment rights is justified, the Government's investigation "interests" must be judiciallybalanced in each caseagainst the journalist'sFirstAmendment "interests".

(4) A journalist, therefore, must receive prior notice of a toll-record subpoena so that he may challenge the subpoena and thus prompt the requisite judicialbalancingbefore the records are released.

[45] The second theory relates to the impact ofbad faithtoll-call-record subpoenas on plaintiffs'FirstAmendment rights and the need for judicialscreeningbefore such records are released to Government investigators. Plaintiffs develop this theory as follows:

(1) Government investigators have in the past subpoenaed journalists' toll-call records, not in furtherance of good faith felony investigations, but as part of politically-motivated efforts to interfere with their news-gathering activities.

(2) Suchbad faithsubpoenas abridge journalists'FirstAmendment right to gather information from clandestine sources.

(3) In order to protect journalists from such infringements in the future, it is necessary for thejudiciary to superintend investigationsof journalists in order toscreen outbad faith subpoenas.

(4) A journalist, therefore, must receive prior notice of a toll-call-record subpoena so that he may challenge the subpoena and thus prompt the requisite judicialscreeningbefore the records are released.

[46] Common to both theories is the proposition that journalists have a right under theFirstAmendment to gather information from clandestine sources.However, there is a clear distinctionbetween the two theories, regarding both the type of Governmentaction which supposedly abridges this right and the kind ofjudicial action necessary to remedy the abridgment.According to the first theory, plaintiffs' rights are abridged byany andalltoll-call-record subpoenas, and the appropriate remedy is a judicialbalancingof legitimate interests of the Government against those of the journalist. According to the second theory, plaintiffs' rights are abridged bybad faithtoll-call-record subpoenas and the appropriate remedy is a judicialscreeningof all subpoenas in order to winnow those issued for illegitimate reasons.⁵²Each theory involves separate and distinct issues.

[47] 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 inBranzburg v.Hayes⁵³thatFirstAmendment challenges togood faithinvestigative action andFirstAmendment challenges tobadfaithinvestigative action "pose wholly different issues for resolution."⁵⁴This opinion follows the Supreme Court, analyzing each of plaintiffs' theories separately.

[48] Before proceeding, however, it is important to note that the dissent apparently does not grasp the significance 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. Apparently, it believes that it can make this pronouncementin vacuo,without addressing whether or not there is actually a need for case-by-case judicial balancing or screening. In the dissent's view, these latter issues are not immediately relevantPage 1048and can be left to future resolution. Yet, this is placing the cart before the horse.The existence of a right to prior noticeis predicated precisely on the supposed need for case-by-casejudicial balancing or screening.Prior notice is merely a procedural device, the only function of which is to trigger judicial supervision of subpoenas — supervision that necessarily involves either the balancing or screening functions of the court.

[49] Accordingly, if it can be demonstrated that there isno needfor case-by-case balancing andno warrantfor 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 screening has been made thus far in this case.

[50] A.Plaintiffs' "Balancing" Theory

[51] In treating plaintiffs' first theory, two issues must be addressed: first, whether Government access to toll-call records in the course of agood faithfelony investigation actually "abridges" a "freedom" guaranteed plaintiffs under theFirstAmendment; and second, if so, whether priorjudicial balancingon a case-by-case basis is an appropriate judicial response.

[52] 1.No Abridgment of Any Special Journalistic Right orPrivilege by Good Faith Subpoenas

[53] a.Relationship ofFirstAmendment to Good FaithInvestigation

[54] Plaintiffs contend that theFirstAmendment guarantees "journalists" the right to gather information from secret sources, and that this right implies a further right to maintain the secrecy of those sources.⁵⁵They assert that these rights are abridgedwheneverthe Government gains access to toll-call records, or presumably to any other third-party information which might disclose the identity of their secret sources.⁵⁶Thus, plaintiffs, who have neither a property nor a privacy interest in the business records of the defendant telephone companies,⁵⁷claim nevertheless to have a "First Amendment interest" in these records. This "interest", according to plaintiffs, entitles them to bar Government access to these records even duringgoodfaithfelony investigations.

[55] 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.

[56] 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 person,⁵⁸and that it is also a felony for any person to whom such information has been disclosed thereafter to publish it.⁵⁹Therefore, the employee naturally desires to avoid detection and plans to act cautiously. He places a long distance telephone call to a journalist in Washington, D.C., informing him of his designs, and the journalist says he will consider the matter. Later, the journalist calls the employee and sets up a meeting in Washington. 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 byPage 1049one of the journalist'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 disclose the employee's identity even under compulsion. On this basis, the employee delivers the information to the journalist who subsequently publishes it.

[57] When the information appears in the journalist's column, it is obvious to Government law enforcement officials that at least one and possibly two felonies have been committed, and appropriate officers set about investigating the suspected crimes. From the nature of the published information itself, the investigators ascertain that the unauthorized disclosure was made from the Atlanta office. The investigatory problem becomes linking an employee at that office with the Washington journalist.

[58] 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 inBranzburg v.Hayes⁶⁰expressly held that this may be done — that the journalist may not refuse to disclose his source. According to the Court, the journalist may berequired to testify in any andall good faith criminal investigations— there is no case-by-case consideration given to a claim of privilege.Goodfaith investigation interests always override a journalist'sinterest in protecting his source.⁶¹

[59] 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,thereare at least five sets of third-party business recordswhich, to varying degrees, provide evidence of such a link: (1) the journalist's toll-call records, (2) the toll-call records of employees in the Atlanta office, (3) the airline records for Atlanta to Washington flights, (4) the Washington hotel records, and (5) the taxicab company's records. There are also at least two witnesses whose personal recollections may provide evidence of such a link: (1) the taxicab driver, and (2) the journalist's neighbor.

[60] Plaintiffs' position is that the journalist in this hypothetical situation has "First Amendment interests" in these five sets of business records and the testimony of these two witnesses, and that his "interests" may outweigh 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 journalist the opportunity to vindicate his supposedFirstAmendment right to maintain the secrecy of his sources. In short, plaintiffs claim that journalists have the unprecedented privilege of suppressing the records and testimony of third parties to whom they and their sources have carelessly revealed incriminating information.

[61] 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 access to third-party evidence in the course of a good faith felony investigation in no sense "abridges" plaintiffs information-gathering activities.

[62]Branzburg v. Hayesis dispositive on the first point. InBranzburgjournalists had established confidential relationships with certain sources. Through grand jury subpoenasad testificandum,the Government sought to compel the journalists to betray these confidences and to disclose the identity of their sources. The journalists moved to quash the subpoenas, contending that theFirstAmendment gave rise to a testimonial privilege, that is,a right to protect the secrecyof their sources.The journalists contended, just as plaintiffs here contend, that if journalists were compelled to identifyPage 1050their sources, informants would refuse to furnish information in the future, and that this would interfere with the free flow of information protected by theFirstAmendment.

[63] The Court expressly rejected this claim, holding that journalists had no specialFirstAmendment right to maintain the secrecy of their sources in the face of agood faithfelony investigation.⁶²The Court found that the possibility that a source might refuse or be reluctant to furnish information to a journalist out of fear that his identity might be revealed was at best a "burden" on theFirstAmendment right to gather news.⁶³The Court further stated that "[i]t is clear that theFirstAmendment does not invalidate every incidental burdening of the press . . .,"⁶⁴and that the "burden" of disclosing the identity of a source was not constitutionally suspect and therefore did not require a privileged position for newsmen.⁶⁵

[64]Branzburginvolved good faith subpoenasad testificandumdirected at the journalists themselves. It is logically inescapable that if, as held, journalists have no right to resist such subpoenas, then they certainly have no right to resistgoodfaithsubpoenasduces tecumdirected at a third-party's business records. Not only is the logic inescapable, but, in fact, the Court inBranzburgdid specifically uphold the propriety of identifying sources through such independent means. The Court stated:

. . . [I]f 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.⁶⁶

[65] 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.

[66] There is another reason that plaintiffs' reliance onBranzburgv. 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 journalists inBranzburgdid not assert an absolute testimonial privilege, but asserted,interalia,that the Government should berequiredto seek outthird party sources of evidence beforebeing permitted to compel the journalists themselves to identify their sources. In other words, the journalists inBranzburgsought 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 onBranzburgfor the proposition that theFirstAmendment entitles them to reach out and suppress the testimony of third parties whom they have injudiciously made witting of their secrets.⁶⁷Page 1051

[67] It is thus clear fromBranzburgand related cases that the freedom to gather information guaranteed by theFirstAmendment is the freedom to gather informationsubject tothe 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.⁶⁸The broad scope of acceptable government investigation, so necessary to the secure enjoyment ofallliberties, unavoidably places a burden onallcitizens. It is difficult, though not impossible, to establish absolutely secret contacts with other people. The freedom that "journalists" enjoy with respect to their news gathering is subject to this burden.TheFirstAmendment does not guarantee plaintiff "journalists," or othercitizens, a special right to immunize themselves from good faithinvestigation simply because they may be engaged in gatheringinformation.Thus, the Government's good faith inspection of defendantPage 1052telephone companies' toll call records does not infringe on plaintiffs'FirstAmendment rights, because that Amendment guarantees no freedom from such investigation.

[68] Moreover, it is clear that Government access to defendants' toll-call records in no sense "abridges" plaintiffs' news-gathering activities within the meaning of theFirstAmendment. Not every Government action that affects, has an impact on, or indeed inhibitsFirstAmendment activity constitutes the kind of "abridgment" condemned by theFirstAmendment. Historically considered, freedom of the press means primarily, although not exclusively, immunity from prior restraints or censorship,⁶⁹but the guarantee also affords protection from the imposition of post-publication sanctions and punishments.⁷⁰Additionally, 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 governmental action that falls short of a direct prohibition against the exercise ofFirstAmendment rights.⁷¹Yet not every Government action that has an inhibiting or constrictive impact onFirstAmendment activity is said therefore to have an impermissible "chilling effect." The constrictive impact must arise from the present or future exercise, or threatened exercise, of coercive power.⁷²

[69] As the Supreme Court stated inLaird v. Tatum:⁷³

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 individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take someotherand additional action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.

[70] 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 inBranzburg,such investigation imposes no restrictions, prior restraint, or sanctions on journalists' information-gathering.⁷⁴Furthermore, in this case, unlikeBranzburg,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'FirstAmendment news-gathering rights.Page 1053

[71] In sum, then, the two propositions underlying plaintiffs' first theory are erroneous. TheFirstAmendment does not guarantee journalists the right to preserve the secrecy of their sources in the face ofgood faithcriminal investigation. 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 Amendment interest" in third-party records which disclose the identity of a secret source and, consequently, have noFirstAmendment right to notice of subpoenas directed at such records.⁷⁵In other words, theFirstAmendment does not guarantee a journalist, or any other citizen, the freedom to collect information immune fromgood faithcriminal investigation by means which accord withFourthandFifthAmendment protections. Nor does it insulate a journalist, or any other citizen, from the general and subjective inhibitions that naturally arise from the prospect of such investigation — inhibitions to which all citizens are subject in every field of endeavor.

[72] b.Relationship ofFirst,Fourth, andFifthAmendments⁷⁶

[73] The issues raised by plaintiffs' first theory may be viewed from a somewhat different perspective. I believe that plaintiffs' claims pose fundamental questions concerning the interplay ofFirst,FourthandFifthAmendment protections. Essentially, plaintiffs contend that particulargood faithinvestigative actions inhibit, and thereby infringe upon, their information-gathering activities. Specifically, plaintiffs complain that the investigative action has "intrudedPage 1054into", "invaded" or "penetrated" activity which is secret or private.

[74] As already demonstrated, to the extent plaintiffs have exposed their activities to third parties they had no protectable privacy interests in them under theFourthAmendment.⁷⁷The crux of plaintiffs' argument, then, is that they have a right to establish relationships in secret under circumstances in which theFourthAmendment 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 theFourthandFifthAmendments 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.

[75] The question thus presented is this: Does theFirstAmendment afford plaintiffs this extra margin of privacy by imposing substantive or procedural limitations ongood faithcriminal investigative action above and beyond the limitations imposed by theFourthandFifthAmendments? I believe the answer must be no.

[76] The Supreme Court has repeatedly emphasized that one of the main reasons for adoption of theFourthAmendment was to provide citizens with the privacy protection necessary for secure enjoyment ofFirstAmendment liberties.⁷⁸FirstAmendment values permeate theFourthAmendment. To a somewhat lesser extent, the same can be said of theFifthAmendment.⁷⁹In my view, the guarantees of theFourthandFifthAmendments achieve their purpose and provide every individual with sufficient protection against good faith investigative action for the full enjoyment of hisFirstAmendment rights of expression.To theextent an individual insists that he must shield himself from theprospect of good faith investigation and operate in secrecy inorder to exercise effectively particularFirstAmendmentliberties, he must find that shield and establish that secrecywithin the framework ofFourthandFifthAmendment protections.This is not to say that theFirstAmendment never gives rise to any privacy-type interests apart from those secured by theFourthandFifthAmendments. It does mean, however, that such interests are overriddenin criminal casesby the public's interest in effective law enforcement investigation at least insofar as they go beyond protections already afforded by theFourthandFifthAmendments.

[77] In several cases the Supreme Court has dealt with situations in which law enforcement investigative action undertaken ingoodfaithhas had an impact onFirstAmendment activity.⁸⁰In these cases involving "a convergence ofFirstandFourthAmendment values", the Court has held thatFirstAmendment interests are to be safeguarded by strict adherence toFourthAmendment standards.⁸¹Significantly, the Court has not concluded that theFirstAmendment interests themselves give rise toadditionalprotections againstgood faithinvestigative action above and beyond those afforded by theFourthAmendment.⁸²NorPage 1055has the Court concluded that persons engaging in certain types ofFirstAmendment activity havebroaderFourthAmendment rights than other citizens.

[78] The proposition that theFirstAmendment offers no procedural or substantive protections against good faith criminal investigative activity beyond that afforded by theFourthandFifthAmendments is directly supported by the Supreme Court's recent decision inZurcher v. Stanford Daily.⁸³Indeed, this seems to be the tacit basis of the decision. In that case police had searched the offices 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 under42 U.S.C. § 1983against 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 theFirst,Fourth, andFourteenthAmendments. The journalists asserted,inter alia,that where an innocent object of a third-party search is a newspaper, theFirstAmendment requires that evidence in the newspaper's possession be obtained by a subpoenaduces tecumrather than by a 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.

[79] Significantly, the Supreme Court's decision analyzes the protections available to the journalists entirely within the framework of theFourthAmendment. Observing that theFourthAmendment was adopted largely in response to a history of conflict between the Crown and the press, the Court reaffirmed the principle that "[w]here the materials sought to be seized may be protected by theFirstAmendment, the requirements of theFourthAmendment must be applied with `scrupulous exactitude'".⁸⁴Page 1056Thus, the Court held that the protections to be afforded the journalists were to be found in rigorous application ofFourthAmendment standards. Implicit in this decision is the conclusion that, in this type of case, the existence ofFirstAmendment "interests" does not give rise to any substantive or procedural protections above and beyond those afforded by theFourthAmendment. The Court stated:

Neither theFourthAmendment nor the cases requiring consideration ofFirstAmendment 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 desiring to curb unjustified official intrusions, the Framers took the enormously important step of subjecting searches to the test of reasonableness and to the general rule requiring search warrants issued by neutral magistrates. They nevertheless did not forbid warrants 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. Further, the prior cases do no more than insist that the courts apply the warrant requirements with particular exactitude whenFirstAmendment interests would be endangered by the search.⁸⁵

[80] 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 theFourthAmendment to reflect that belief. As the opinion of the Court points out, the struggle from which theFourthAmendment emerged was that between Crown and press. The Framers were painfully aware of that history, and their response to it was theFourthAmendment. Hence, there is every reason to believe that the usual procedures contemplated by theFourthAmendment do indeed apply to the press, as to every other person.

. . . . .

. . . [C]onsiderations such as these are the province of theFourthAmendment. There is no authority either in history or in the Constitution itself for exempting certain classes of persons or entities from its reach.⁸⁶

[81] Circuit court cases also support the proposition that theFirstAmendment affords no procedural or substantive protection againstgood faithcriminal investigative activity beyond that afforded by theFourthandFifthAmendments. Most analogous to the case at hand are the so-called "mail cover" cases. A "mail cover" is an investigative technique involving the screening and analysis of the envelope exteriors of all mail addressed to a particular recipient. By this means, investigators can determine, for each item of mail, the city from which the 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 sameinformation concerning mail communication as toll-call recordinspections provide concerning long distance telephonecommunication.Criminal defendants have attempted to suppress evidence derived from mail covers on the grounds that such warrantless mail surveillance violated theirFourthAmendment rights.

[82] The courts have uniformly rejected this argument.⁸⁷Just as courts have heldPage 1057that a person's expectations of privacy concerning telephone communication attach only to thecontentsof 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 andnotwith respect to information knowingly exposed to third parties on the envelope's exterior. Anticipating plaintiffs' argument in this case, individuals have argued that, even though "mail covers" may not violate theFourthAmendment, they nevertheless violate theFirstAmendment by "chilling" free communication through the mails. There is no doubt that communication through the mails is aFirstAmendment right guaranteed by both the free speech and press guarantees⁸⁸and is "almost as much a part of free speech as the right to use our tongues."⁸⁹Nevertheless, the courts have held that "mail covers" violate noFirstAmendment right.⁹⁰

[83] The principle that theFirstAmendment offers no procedural or substantive protection fromgood faithcriminal investigation beyond that afforded by theFourthandFifthAmendments is also reflected in cases involving informants and undercover agents.⁹¹Law enforcement investigators regularly collect information from informants and undercover agents concerning the activities, conversations, and associations of individuals and groups.⁹²No warrant is required when Government investigators solicit information from an informant or place an undercover agent. This practice was challenged in a series of Supreme Court cases. InLopez v. United States,⁹³defendant in a bribery trial objected to the introduction into evidence of tape recordings of an incriminating conversation between himself and an IRS agent in defendant's private office. The recordings were made by a tape recorder in the agent's pocket. Justice Brennan argued, in dissent, that such covert investigative practices threatenedFirstAmendment 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."⁹⁴Implicitly rejecting this position, the majority held that the recordings of defendant's conversation were properly admitted into evidence and that the secret recording of defendant did not violate defendant's constitutional rights.

[84] Similarly, inUnited States v. White,⁹⁵Justice Douglas argued that a criminal suspect'sFirstAmendment rights were violated when his conversations with an informant were electronically monitored byPage 1058Government agents through a transmitter installed on the informant:

Monitoring, if prevalent, certainly kills free discourse and spontaneous utterances. Free discourse — aFirstAmendment value — may be frivolous or serious, humble or defiant, reactionary or revolutionary, profane 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.⁹⁶

[85] The Court implicitly rejected thisFirstAmendment argument in upholding the constitutionality of employing "wired" informants,⁹⁷stating: "Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police."⁹⁸

[86] Finally, cases involving physical surveillance support the principle that theFirstAmendment affords no protection againstgood faithcriminal investigative activity beyond that afforded by theFourthandFifthAmendments. Courts have held that physical surveillance consistent withFourthAmendment protections and in connection with a bona fide law enforcement investigation does not violateFirstAmendment rights, even though it may be directed at communicative or associative activities and even though it may inhibit such activities.⁹⁹Thus, inOaks v. United States,¹⁰⁰the Ninth Circuit upheld the conviction of a leader of a tax rebellion group for failure to file an income tax return, rejecting defendant's contention that IRS surveillance had violated hisFirstAmendment rights. IRS undercover agents had infiltrated the Tax Rebellion Committee of which defendant was a member, attended various meetings of the Committee, and submitted reports on the activities of the Committee and its members, including defendant. The Court stated:

Nor do we find that the surveillance of the meetings of the Tax Rebellion Committee by the undercover agents was improper. The meetings were open to the public and the participants were openly advocating the willful violation of Internal Revenue laws. The risk of surveillance of meetings of this type must be assumed. No interest legitimately protected by theFirstandFifthAmendments is involved.¹⁰¹

[87] The principle is clear. To the extent individuals desire to exercise theirFirstAmendment rights in private, free from possible good faith law enforcement investigation, they must operate within the zone of privacy secured by theFourthAmendment. When individuals expose their activities to third parties, they similarly expose these activities to possible Government scrutiny. The mere prospect that such investigation may occur or, indeed, the actual conduct of such investigation does not "chill" or otherwise abridgeFirstAmendment rights, even though it may give rise toPage 1059subjective inhibitions for those who desire to avoid the prospect of investigation altogether.

[88] 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 ofFourthandFifthAmendment 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 used, whether the ends be lofty or evil. Plaintiffs are no exception simply because they are "journalists."

[89] The plaintiffs' and the dissent's position is that theFirstAmendmentdoesafford additional protections againstgoodfaithcriminal investigation beyond those provided by theFourthandFifthAmendment. In skeletal form, their position is that when particular investigative action "implicates"FirstAmendment activities, then its utility must be judicially balanced against theFirstAmendment "interests" it may affectbeforeit may be put into effect. However, it is clear from a moment's reflection that this position is wholly untenable.

[90] InKatz v. United States,the Supreme Court observed thatall investigative actionintrudes upon privacy to some extent.¹⁰²The same can be said for the relationship between investigation andFirstAmendment activity; that is,allinvestigative action affects or "implicates"FirstAmendmentactivity.After all,theFirstAmendment is not the personalpreserve of "journalists."It covers almost all forms of expression; it covers associative activities; it covers religious activities. Each citizen hasFirstAmendment rights and each one's rights are as precious as the other's. Every time law enforcement officers arrest an individual, they place restraints onFirstAmendment activity. Does this mean that before an arrest can be made there must be a hearing at which the State's "interest" in making the arrest is judicially balanced against the consequent inhibitions onFirstAmendmentrights? Each time law enforcement officers place a suspect under physical surveillance or make inquiries and collect information on a suspect, they "implicate"FirstAmendment rights. Does this mean that before the police can take this fundamental investigative action there must be a hearing at which the particular utility of these acts is judicially balanced against theFirstAmendment "interests" they may affect? Each time the Government solicits information from an informant or places an undercover agent it "implicates"FirstAmendment rights. Does this mean that before such action is taken there must be a hearing at which the Government's "interest" in taking these actions is judicially balanced against theFirstAmendment activities "implicated"? And each time the police obtain a warrant for more intrusive investigation, such as for wiretaps or searches,FirstAmendment rights are "implicated." Does this mean thatin addition todetermining the probable cause required by theFourthAmendment the issuing magistrate mustalsobalanceFirstAmendment interests? Of course, the practical consequence of such a regime would be the complete and absolute stultification of law enforcement.

[91] If this is indeed what theFirstAmendment 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 thanFourthAmendment grounds.

[92] The only way in which plaintiffs and the dissent could avoid thisdenouementis to limit theseFirstAmendment protections only tosomeindividuals; or perhaps only toPage 1060somespecies ofFirstAmendment activities; or perhaps only tosomeindividuals insomeactivities. In other words, under plaintiffs' approach the courts would have to decide that certain individuals'FirstAmendment rights are more important than those of others, and that certainFirstAmendment activities are more important than others. Presumably, the more significant individuals and the more significant activities would have greater protection from good faith investigation.

[93] How would this gradation be made without doing violence to theFirstAmendment itself? If theFirstAmendment 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 theFirstAmendment shields "news gathering" from good faith investigation, how about other kinds ofFirstAmendment 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?

[94] InBranzburg,the Supreme Court recognized that it would be improper, as well as impracticable, to define the categories of persons entitled to insist on the balancing 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 paper 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 information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures before a grand jury.¹⁰³

[95] In sum, the approach urged by plaintiffs and the dissent must inevitably result in one of two consequences.Either all peopleat all timeswill have theFirstAmendment balancing protection againstgood faithinvestigation, in which case law enforcement will be completely throttled.Or, certain people at certaintimeswill be entitled to such protection, in which event first the police and then the courts will be obliged in each case to delineate the individuals and species of activity entitled to protection, and this, in turn, will necessarily require distinguishing "real" from "sham"FirstAmendment claims. In my view, neither approach is acceptable, in theory or in practice.

[96] 2.Case-by-Case Judicial Balancing—an Unprecedented,Unnecessary, and Unworkable Remedy

[97] Even if it is assumedarguendothat plaintiffs have established an abridgment of aFirstAmendment "interest," 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 theirFirstAmendment interests as journalists whenever the Government seeks access to their toll-call records in the course of a good faith felony investigation.¹⁰⁴We know of no authority supporting the proposition that any such balancing must be performed on aPage 1061case-by-case basis, and neither plaintiffs nor the dissent cites any.¹⁰⁵

[98] It is at this point thatplaintiffs' and the dissent'sconfusion between the balancing function of the court and itsscreening function becomes evident.Apparently the source of this confusion is a single paragraph in theBranzburgdecision. The Court inBranzburgdetermined thatgood faithcriminal investigation interestsalwaysoverride a journalist's interest in preserving the secrecy of his sources. The Court observed that there was no question but that the particular subpoenas in question were issued ingood faithand it held that theFirstAmendment offersno protectionfrom suchgood faithinvestigative efforts.The Court explicitly rejected acase-by-case balancing approach,which absolutely refutes the plaintiffs' and the dissent's position on good faith investigations. At the very end of its decision, the Court commented on the possible impact ofbad faithsubpoenas on journalists'FirstAmendment rights:

Finally, as we have earlier indicated, news gathering is not without itsFirstAmendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under theFirstAmendment. 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.¹⁰⁶

[99] By these comments, the Court was merely indicating that journalists would have an effective remedy ifbad faithharassing subpoenas were employed against them. The remedy suggested was a screening remedy,and it was available on acase-by-case basis because the Court would necessarily be calledupon to enforce the subpoenas on a case-by-case basis.Thus, the Court did not contemplate case-by-casebalancingat all, for if subpoenas were issued in bad faith, there would be no legitimate Government interestto balanceagainst the journalist's interests; rather it would be a question of screening out bad faith subpoenas.¹⁰⁷Page 1062

[100] The competing interests assertedly at stake in this case can easily be balanced and resolved once and for all. Indeed, if one readsBranzburg,as plaintiffs do, as involving the balancing of interests virtually identical to those here, then it is significant that the Court balanced 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 investigations is sufficient to override the burden on newsgathering which is said to result from permitting Government inspection of toll-call records which might disclose the identity of journalists' secret sources. In our view,Branzburgdictates an outcome in favor of law-enforcement "interests."

[101] In the first place, the burden placed on journalists byBranzburgis substantially more onerous than the burden that would be placed on them by being subject to toll-call-record inspections. There is no way for journalists to circumvent the rigors ofBranzburg.They can take every secrecy precaution and be as discrete as possible, and still bedirectly compelledto disclose their secrets. In contrast, the real burden that the possibility of toll-call-record inspections places on journalists is mere inconvenience. Journalists and sources can easily 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 theBranzburgrule.

[102] In the second place, it remains unclear how often and to what extent informers are actually deterred from furnishing 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 inhibition.¹⁰⁸More significantly, the plaintiffs' own affidavits indicate that sources generally are apprehensive about the circumspection of the journalists themselves, and cooperate only on the basis ofthe journalist's personal assuranceof confidentiality; there is no indication that sources are especially inhibited by the contingency of toll-call-record subpoenas any more than they are by the prospect of third-party detection in general.

[103] Finally, as theBranzburgCourt pointed out, it is difficult to take seriously claims that toll-record subpoenas will appreciably constrict the flow of information to journalists.¹⁰⁹Journalists' records have been subject to such subpoenas for 50 years, and during this time, "the press has flourished"¹¹⁰and so has its use of confidential sources.¹¹¹Indeed, plaintiffs' own affidavits aver that the number of sources using telephones has steadily and dramatically increased in recent years, belying the notion that the existing accessibility of toll-call records has curtailed the flow of information. It is therefore clear that "existing constitutional rules have not been a serious obstacle to either the development or retention of confidential news sources by the press".¹¹²In the face of these considerations, if a balance must be struck, then itPage 1063must be struck in favor of the general public's interest in effective law enforcement investigations.

[104] Under the approach urged by plaintiffs and the dissent, courts will be required to enter into a balancing effort in each case to determine whether a particular journalist's "interest" in suppressing toll-call-record data outweighs the Government's "interest" in gathering such evidence. The Court inBranzburgwas similarly requested to adopt a case-by-case balancing approach with respect to journalists' claims of testimonial privilege.¹¹³The Court stated: "We are unwilling to embark the judiciary on a long and difficult journey to such an uncertain destination."¹¹⁴The Court realized that administration of such a case-by-case approach "would present practical and conceptual difficulties of a high order."¹¹⁵

[105] One problem, as the Court inBranzburgrecognized, is that a case-by-case balancing approach will require courts to devise criteria for estimating therelativeexigency of a particular good faith investigation:

Thus, in the end, by considering whether enforcement of a particular law served a "compelling" governmental interest, the courts would be inextricably involved in distinguishing between the value of enforcing different criminal laws. By requiring testimony from a reporter in investigations involving some crimes but not in others, they would be making a value judgment that a legislature had declined to make, since in each case the criminal law involved would represent a considered legislative judgment, not constitutionally suspect, of what conduct is liable to criminal prosecution. The task of judges, like other officials outside the legislative branch, is not to make the law but to uphold it in accordance with their oaths.¹¹⁶

[106] A second problem is that a court will have to devise criteria for estimating therelativeimportance of certain information-gathering activities.¹¹⁷Are a novelist's interests in protecting his sources less compelling than a newspaper's? Is a small-town reporter's interest in protecting his sources as compelling as a national newspaper reporter's? Is the secrecy of a source who provides information on international matters more important than the secrecy of a source who only provides information on national or local affairs? In short, courts will be placed in the position of assigning different "values" to various exercises ofFirstAmendment rights.

[107] Finally, these mystical distinctions and calculations would become even more obscure in the context of theex partehearing suggested by the dissent. How will the court in anex partehearing come to know the "quantum" of "press" interests in any particular case? How will the Government necessarily know? How is the court going to balance anything if it does not know what to put on one side of the scale?

[108] In sum, then, where the Government subpoenas a journalist's toll-call records in the course of a criminal investigation, there is no need for a case-by-case balancing of the Government's interests against those of the journalist. If any balancing is necessary at all, it has already been done and the balance has been struck in favor of the Government. Therefore, plaintiffs' theory that journalists are entitled to notice of third-party subpoenas in order to secure case-by-case balancing must fail. Since there is no need for case-by-case balancing, there is no need for prior notice.

[109] B.Plaintiffs' "Screening" Theory.

[110] In treating plaintiffs' second theory, two issues must be addressed: first, whether plaintiffs'FirstAmendment rights would beabridgedby defendant telephone companies' compliance with toll-call-record subpoenas issued inbad faithas part of an effort to harass plaintiffs and interferePage 1064with their sources of information; and second, if so, whetherprior judicial screeningof toll-call-record subpoenas is an appropriate remedy.

[111] 1.Abridgment ofFirstAmendment Rights by Bad FaithSubpoenas

[112] When used in good faith, investigative techniques such as physical surveillance, the gathering of third-party information through interrogation or subpoena, the collection of information from informants and the placement of undercover agents are all proper police activities that violate no constitutional rights of the suspects involved. However, all investigative techniques are subject to abuse and can conceivably be used to oppress citizens and groups, rather than to further proper law enforcement goals. In some cases, bad faith use of these techniques may constitute an abridgment of theFirstAmendment rights of the citizens at whom they are directed, be they "journalists" or less exalted citizens.¹¹⁸

[113] Plaintiffs contend that, in the past, the Government has issued subpoenas for their toll-call records, not in furtherance ofbona fidefelony investigations, but in order to harass plaintiffs in their journalistic information-gathering activities. Plaintiffs assert that these bad faith subpoenas violated theirFirstAmendment rights. Whether or not these particular allegations are true, there can be no doubt that, as a general proposition, suchbad faithaction would constitute an abridgment of a journalist'sFirstAmendment rightsat leastin some cases, if not in every case.¹¹⁹InBranzburg,the Supreme Court specifically stated that theFirstAmendment protected news-gathering from such abusive assaults:

[N]ews gathering is not without itsFirstAmendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under theFirstAmendment. 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.¹²⁰

[114] Thus, while theFirstAmendment does not immunize the information-gathering activities of a journalist or any other citizen fromgood faithlaw enforcement investigation, it does protect such activities from official harassment. Unlike good faith investigation to which all citizens are subject, official harassment places aspecialburden on information-gathering, forin such cases the ultimate, though tacit, design is toobstruct rather than to investigate, and the official action isproscriptive rather than observatory in character.Thus, plaintiffs' initial premise thatbad faithtoll-record subpoenasmayoperate as an abridgment of theirFirstAmendment rights is correct.

[115] 2.Prior Judicial Screening—an Equitable RemedyUnjustified Factually on this Summary Judgment Record

[116] Plaintiffs have not sought damages for the past instances of bad faith harassment which they allege. Rather, plaintiffs have sought extraordinary prospective relief by which they are to be protected from future subpoenas — a procedural remedy by which plaintiffs must be notified of any subpoena directed at their toll-call records so that they may prompt a judicial determination as to whether or not the subpoena has been issued in connection with abona fideinvestigation. In short, plaintiffs seek an ongoing judicial audit of future government investigations in order to screen outbad faithsubpoenas.

[117] Such extraordinary anticipatory relief cannot be justified merely on the ground that toll-record subpoenasmight possiblybe abused in the future so as to effect an infringement of plaintiffs'Page 1065FirstAmendment rights. If the mere possibility of future government misconduct were sufficient to warrant such prophylactic relief, then the courts would be called upon to superintend virtuallyallinvestigative activity. Much more than the mere possibility of future official misconduct is needed to justify this type of judicial intervention.

[118] It is fundamental that in order to obtain the kind of equitable relief sought in this case, a plaintiff "must show not only that there is animminent threat of harmbut also that the threatened harm isirreparable."¹²¹A party invoking equitable intervention in the criminal investigative process has a particularly heavy burden. Only the most extraordinary circumstances warrant anticipatory judicial involvement in criminal investigations. Even where federalism concerns are absent, the fundamental concept of separation of powers dictates judicial restraint. The powers of criminal investigation are committed to the Executive branch. The balance between the Executive and Judicial branches would be profoundly upset if the Judiciary assumed superintendence over the law enforcement activities of the Executive branch upon nothing more than a vague fear or suspicion that its officers will be unfaithful to their oaths or unequal to their responsibility. As the Supreme Court stated inLaird v. Tatum:

Carried to its logical end, this approach [of judicial supervision of military intelligence activities] would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; . . . it is not the role of the judiciary, absent actual present or immediately threatened injury resulting from unlawful governmental action.¹²²

[119] Since plaintiffs in this case contend that theirFirstAmendment rights are violated bybad faithsubpoenas issued for harassment purposes, then in order to justify anticipatory reliefeach individualplaintiff must show (1) that there is animminent threatthat the Government will subpoena his toll records in bad faith, (2) that such subpoena will cause him substantial andirreparable harm,and (3) that his remedy at law is inadequate. And, still, a grant of anticipatory relief is a matter of equitable discretion and must depend in each case on an assessment of all relevant circumstances. In order to meet this burden, plaintiffs contend that the past instances of toll-record subpoenas reflected in the record establish a pattern of bad faith harassment; that this pattern indicates the imminence of future bad faith subpoenas; that such subpoenas will cause irreparable injury; and that, hence, they are entitled to equitable relief to prevent the recurrence of irreparable injury which is clear and imminent.

[120] This case comes before us on cross motions for summary judgment. Under Rule56(c) of the Federal Rules of Civil Procedure, summary judgment is to be rendered only when there is "no genuine issue as to material fact" and "the moving party is entitled to judgment as a matter of law." As this Court recently stated:

In assessing the motion, all "inferences to be drawn from the underlying facts containedPage 1066in [the movant's] materials must be viewed in the light most favorable to the party opposing the motion." Indeed, "the record must show the movant's right to [summary judgment] `with such clarity as to leave no room for controversy', and must demonstrate that his opponent `would not be entitled to [prevail] under any discernible circumstances'."

Summary judgment is unavailable if it depends upon any fact that the record leaves susceptible of dispute. Facts not conclusively demonstrated, but essential to the movant's claim, are not established merely by his opponent's silence; rather, the movant must shoulder the burden of showing affirmatively the absence of any meaningful factual issue. That responsibility may not be relieved through adjudication since "[t]he court's function is limited to ascertaining whether any factual issue pertinent to the controversy exists [and] does not extend to [the] resolution of any such issue."¹²³

[121] Applying these principles to the case at bar, it is clear that the District Court was correct in granting defendants' motion for summary judgment with respect to ten of the 15 plaintiffs, namely, The Reporters' Committee for Freedom of the Press, Dow Jones Co., Inc., Marquis W. Childs, Emmett Dedmon, Morton Mintz, Bruce Morton, John Pierson, Richard Salant, Daniel Schorr, and Frederick Taylor. These plaintiffs failed to adduceanyevidence from which it could be inferred that their toll-call records had ever been subpoenaed in bad faith in the past or that their records were in imminent danger of being subpoenaed in bad faith in the future. Therefore, the District Court's summary judgment against these ten plaintiffs is affirmed.

[122] However, the remaining five plaintiffs have adduced evidence that their toll-call records were inspected by the Government in the past. Viewing this evidence in the light most favorable to plaintiffs, it is at least a possible inference that the Government acted in bad faith in issuing these past subpoenas. Also, it is possible that, upon further proof, the circumstances of these past inspections might indicate the imminence of further abuse. Though it is a close question, it appears that these five plaintiffs have adduced just enough evidence to withstand defendants' motion for summary judgment. Therefore, the District Court's action in granting summary judgment against these five is reversed.

[123] Furthermore, it is clear that the District Court acted properly in denyingplaintiffs'motion for summary judgment. At this stage, the five remaining plaintiffs have failed to lay an adequate foundation for the exceptional remedy they seek. Since plaintiffs have relied on the occurrence of past abuses to justify equitable intervention, then the critical factual issue in the case iswhether there indeed has been official abuse inthe past. Only when this factual issue has been resolved in favorof plaintiffs does the remedial issue arise as to whether thepast misconduct is sufficient to warrant the extraordinary reliefsought.Yet, this critical factual issue is in genuine dispute. The defendant United States emphatically claims that the five past subpoenas directed at plaintiffs' toll-call records were all issued in connection withbona fidefelony investigations,i.e., there has been no pattern of official abuse in the pastwhich could possibly justify the anticipatory relief sought by plaintiffs. Affidavits, depositions, and answers to interrogatories all present information supporting this contention. Plaintiffs, on the other hand, assert that in these past instances "the Government had, at most, only a highly tenuous law enforcement justification for seeking to scrutinize plaintiffs' news-gathering activities."¹²⁴Therefore, this case must be remanded to the District Court. If the remaining plaintiffs determine to pursue this suit, then the issue of bad faith must be resolved in the District Court. If on remand the DistrictPage 1067Court finds no record of past abuse, and no other basis to anticipate impending future misconduct, then plaintiffs will have failed on their claim for equitable relief. If, however, the District Court finds that there has been a pattern of abuse in the past, then the appropriate judicial response must be determined at that time.

[124] In sum, then, while we accept the notion that otherwise legitimate investigative techniques may be abused in such a way as to abridge theFirstAmendment rights of the persons at whom they are directed, and while we also accept the proposition that harassing toll-record subpoenas can abridge journalists'FirstAmendment rights, we believe that there is a genuine dispute in this case as to whether past toll-record subpoenas were in bad faith, and thereforeany equitable relief predicated on afinding of past official abuse is premature.

[125] It must be stressed that even if the remaining plaintiffs establish, and the District Court finds, that there have been past instances of abuse, it does not necessarily mean that each plaintiff will be entitled to prior notice of future subpoenas. As already stated, in order to obtain the kind of anticipatory relief sought in this case,each individualplaintiff must show not only thathe personallyfaces animminent threat of harmbut also that the threatened harmis irreparable.In addition, each plaintiff must show that his remedy at law is inadequate. As the record now stands, plaintiffs have not made a sufficient showing as to any of these requirements.

[126] First, there is little indication in the record that plaintiffs have suffered, are suffering, or will suffer substantial and irreparable harm. Plaintiffs have alleged that substantial injury occurs to their journalistic activities by disclosure of their telephone billing records. Plaintiffs have attempted to elevate that allegation to the level of an uncontroverted fact, by stating:

There can be no question but that serious and irreparable jury [sic] is done to a reporter'sFirstAmendment rights when the Government obtains unsupervised access to his toll records.¹²⁵

[127]However, the information developed in the course of discovery sofar provides no clear evidence that either past instances of suchdisclosure or the prospect of future disclosure have caused suchinjury.To support an allegation that disclosure of toll-billing records "drastically curtails" plaintiffs' ability to gather news, individual plaintiffs provided only their conclusions of whatwould, could,ormighthappen if sources could not be guaranteed confidentiality. In each case plaintiffs were merely speculating.¹²⁶

[128] Even as to past injury, no plaintiff has demonstrated that he has ever lost a source as a result of a bad faith subpoena of his telephone billing records. The United States directed interrogatories to each plaintiff inquiring as to loss of sources from toll-record inspection. Each plaintiff responded that the inquiry was not applicable.

[129] Two plaintiffs did indicate that information from confidential sources ceased at times coincident with the securing of telephone billing records by federal investigators. In other words,plaintiffs have provided only two instances over a five-yearperiodto support their claim that disclosure to others of toll-call records effects a "drastic curtailment" of their journalistic functions.

[130] Even in these two instances, however, the plaintiffs failed to show that the injuryresulted fromfederal law enforcement access to telephone toll-billing records. In the first instance, plaintiff David E. Rosenbaum stated:

In one instance, Istopped contactingone source after learning of an Internal Revenue Service subpoena for my telephone records because of concern that our relationship might jeopardize his career.¹²⁷

[131] Clearly this unilateral decision by Mr. Rosenbaum to terminate a reporter-source relationship is not sufficient evidence to support a contention that a source has been chilled.Page 1068

[132] In the second instance, plaintiff Jack Anderson responded that in the course of a federal law enforcement investigation in which toll-billing records were utilized, some of his sources were questioned. He further stated that: "With only one exception, I never received any information from any of the sources again."¹²⁸However, in responding to inquiry as to whether the refusal of any source to provide further information could be attributed to this disclosure he responded, "I do not know whether these sources stopped or refused to provide further information, or whether they simply never again had any information which they wished to provide to me."¹²⁹This conclusion certainly does not support an allegation of injury as to his ability to gather and disseminate news as a result of governmental access to toll-billing records.

[133] As exemplified by the foregoing references to the record, it is clear that plaintiffs have thus far failed to provide sufficient factual support for their assertion that unsupervised toll-record subpoenas result in substantial and irreparable injury to their news-gathering activities. At this stage, that assertion remains nothing more than speculation.¹³⁰

[134] Moreover, plaintiffs have so far failed to demonstrate an "imminentthreat of harm." In order to meet the imminency requirement, plaintiffs in general have usually been required to show a pervasive pattern of past abuse such as will indicate acontinuingprogram of misconduct.¹³¹Courts have frequently denied anticipatory relief when plaintiffs have failed to establish such a pattern.¹³²InLong v. District ofColumbia,¹³³the proprietor of a jewelry store had reported to the police that plaintiff, a "suspicious person," was in his store. On the basis of this report, the police initiated an investigation, went to the store and frisked plaintiff. Plaintiff "sought to enjoin the police from stopping and frisking individuals in any manner not in accord with their constitutional rights, alleging the actions complained of . . . to be typical and to be violative of constitutional rights."¹³⁴In denying relief this Court said:

Considerations of policy dictate that the courts act cautiously in granting injunctions against police action. A court should not bind the hands of the police on the mere possibility that certain conduct may be repeated. To do so would unnecessarily involve the courts in police matters and dictate action in situations in which discretion and flexibility are most important.In order for a court to grant aninjunction, there should be a showing that there is asubstantial risk that future violations will occur.

In order to show a substantial likelihood offuture conduct, a clear pattern of harassment must beshown. Such a pattern should consist of frequent actsof misconduct by police officers,which acts were known to the superior officers of the police force.¹³⁵

[135] Although establishing a pattern of past abuse has been the most common way of showing imminency, it is by no means the only way to meet that requirement; the appropriate manner of demonstration dependsPage 1069on the circumstances of each case.¹³⁶Still, the cases involving patterns of past misconduct do illustrate that a clear factual foundation must be laid in order to warrant prospective relief of the kind sought here.

[136] In this case, plaintiffs have alleged only five instances of misconduct over a five-year period.¹³⁷Most significantly,there have been no toll-record subpoenas directed atplaintiffs,and — as far as the record indicates — any other journalist,since 1 March 1974, over four years ago.Since that date ATT has had in effect a new policy providing for notice to subscribers of toll-record subpoenas except in cases where the Government certifies that notice could interfere with anongoinginvestigation. Moreover, the Department of Justice has issued guidelines under which certification generally is not to be made in cases involvingcompleted offenses.¹³⁸There is no indication that under this new regime notice will be withheld from journalists in the future. It is thus clear thatplaintiffshave so far failed to demonstrate that the alleged threat offuture harm is, in any sense, clear and imminent—for thismust be tested relative to the new ATT policy effective 1March 1974, not by practices undeniably abandoned.¹³⁹

[137] Finally, plaintiffs have not shown that their remedy at law is inadequate. Under ATT's new policy, plaintiffs willalwaysbe able to discover that a Government subpoena has been issued for their toll-call records. By placing their names on file with their telephone companies, plaintiffs can assure that they will be notified of a certificated subpoena as soon as the 90-day period and subsequent extensions, if any, expire. This guarantees that plaintiffs will have the opportunity to bringpost hocBivens-type damage suits in any case in which they believe the Government was acting in bad faith. Thus, the inevitability of damage suits would pose a significant deterrent to future Government misconduct, making totally unnecessary any type of equitable relief.

[138] The dissent's position in this regard is unsound. According to the dissent, a plaintiff must show only two things in order to be entitled to the extraordinary prospective relief sought in this case: first, that he has aFirstAmendment right, and, second, that there exists an investigative technique thatmight possiblybe used in bad faithso as to abridge that right. Under this approach, once a plaintiff has shown the existence of a right and the mere possibility of its infringement, he becomes entitled to insist that the Judicial branch superintend government investigations in order to prevent this hypothetical abuse.

[139] This position is in direct conflict with the most fundamental tenets of equity and a series of Supreme Court cases, most notablyRizzo v. Goode,¹⁴⁰Allee v. Medrano,¹⁴¹andLaird v. Tatum.¹⁴²These cases reflect the well-established principle that judicial supervision of police activity predicated on the prospect of future abusemust be basedon the imminence of future misconduct. The mere possibility of future misconduct is simply not enough.

[140] Beyond the fact that it is utterly in conflict with the authorities, the dissent's approach would have the most absurd and pernicious practical consequences. Up until this time, it has been the law that a court would not assume prior review of government investigative action simply because itPage 1070feared future misconduct; it would require a clear showing that such misconduct was a real and imminent prospect. The dissent's position would completely do away with this threshold. It would require only the existence of a constitutional right and thepossibilityof its abridgment. It would not base its anticipatory intervention into police investigative action on an actual past abridgment of rights, nor on a present abridgment of rights, nor on a probability of future abridgment of rights, but rather on a mere possibility of future abridgment of rights.This approach has no logical stopping-point. There is no personin the United States who cannot meet these criteria.

[141] Any person can establish the existence of aFirstAmendment right and of an investigative technique that could possibly be employed inbad faithso as to violate that right. Consider the following example. Suppose that some recognized leader of organized crime in the United States files suit in district court for a declaratory judgment that he must receive priornoticeof any physical surveillance conducted against him. He claims (1) that he has aFirstAmendment right to association and (2) that physical surveillance could be used against him inbad faith,not for any legitimate law enforcement purpose, but rather to harass him in his personal relationships. He alleges, quite reasonably, that the very possibility of abusive surveillance deters people from associating with him. He alleges further that each time he is placed under physical surveillance he suffers irreparable harm to his associational rights because some of his confidential associates are exposed. He moves for summary judgment. Under the dissent's approach there is no principled reasonwhy this organized crime figure would not beautomatically entitled to precisely the same anticipatory remedysought by the "conceded journalists" in the instant case.Why shouldhenot be able to insist on prior notice, or at least ex parte judicial oversight, of any physical surveillance directed athim?

[142] It is not normally the role of the courts to hover over law enforcement officers, reviewing, approving, and monitoring each step of a criminal investigation in order to satisfy itself that the officers are acting ingood faith.The dissent declares its willingness to engage in this kind of supervision and to assume the administration of criminal investigations based solely on its own suspicion that the officers who are constitutionally charged with law enforcement responsibility will not be equal to the task and will act inbad faithas often as not. The dissent seems surprised that we are willing to permit Executive officials to perform their constitutional function and exercise their discretion without apriorjudicial determination that they are acting in good faith. But in our view it is to these officers that the investigative power is committed in the first instance by law, andit is in these officers that it should rest in thefirst instance until an adequate reason for judicial preemptionis established.

[143] C.Summary

[144] Plaintiffs have contended that they have a right to receive prior notice of toll-record subpoenas issued in the course of criminal investigations. They have predicated this right on the supposed necessity for case-by-case judicial balancing (on the theory that good faith subpoenas may abridge theirFirstAmendment rights) and on the supposed necessity for case-by-case judicial screening (on the theory that bad faith subpoenas may abridge theirFirstAmendment rights).

[145] First, by now it is undeniably clear that there is no need for case-by-case balancing where toll-record subpoenas have been issued in criminal investigations. It is undeniably clear because, one, good faith subpoenas do not abridge plaintiffs'FirstAmendment rights and, two, any judicial balancing of interests that may be called for need only be performed once, and such balance is to be struck in favor of the public's interest in effective law enforcement.

[146] Second, it is also undeniably clear that plaintiffs have not yet established their entitlementPage 1071to a case-by-case screening of toll-record subpoenas. While we have agreedin theorythat subpoenas issued in bad faith may in some cases abridgeFirstAmendment rights, all precedent forbids the Judiciary to assume superintendence of criminal investigations merely on the suspicion that Executive officers may act in bad faith in the future, and only permits such judicial intervention when a plaintiff establishes aclear andimminentthreat of such future misconduct. Plaintiffs here have so far failed to lay an adequate foundation for such judicial intervention. The five remaining plaintiffs will have the opportunity to meet this heavy burden on remand.

[147]Affirmed in part and Remanded in part.

[148] SPOTTSWOOD W. ROBINSON, III, Circuit Judge, concurring in part and concurring in the result:

[149] I agree that appellants have not established their entitlement to the broad and extraordinary decree they seek in this litigation. In my view, there has not yet been a showing that the commonplace prohibitory injunction cannot safeguard, to the limit legally warranted, the constitutional interests appellants assert. In the same breath I hasten to acknowledge that certain of the appellants have brought forth enough to demonstrate a need for additional proceedings in the District Court with an eye toward possible equitable relief in the accustomed mode. Accordingly, I join unreservedly in Parts I, II and III, and in much of Part IV,¹of Judge Wilkey's opinion, and in the remand he proposes. I write simply to indicate what to me are the decisive elements in the case²and what considerations might bear on the proceedings on remand.³

[150] As a preliminary matter, I think it is relevant, though by no means dispositive, that appellants lack a constitutionally protectable interest in the privacy — simply for privacy's sake — of their toll records.⁴The proposition that news reporters, who may have occasion to contact confidential sources by long-distance telephone, are without reasonable expectations in that regard may not seem entirely self-evident. But as, by my reading, the Supreme Court's decision inMiller⁵inescapably applies to the situation at bar,⁶I need only say that the records do not fall within the purview of theFourthAmendment.

[151] What appellants do maintain is that prior notice and an opportunity to be heard, or at least some form of judicial oversight akin to that exercised over warrant applications,⁷is essential to protect theFirstAmendment interests they associate with their records. I think Judge Wilkey has correctly identified balancing and screening as the two principal aspects of the sought-after remedy.⁸I agree also that underBranzburg⁹a reporter's claim to anonymity of his news sources must yield to a good faith governmental request for the records in the context of a felony investigation.¹⁰No morePage 1072than grand jury inquiries can governmental investigations into criminality be halted by impenetrable walls thrown up about reporters and their secret sources.¹¹I would add that the breadth of the Government's demand is material only to the extent that it might evidence possible bad faith; an overly-broad inquiry per se would impose, from aught that appears, no constitutionally significant burden on newsgathering.¹²Accordingly, judicial oversight would be justified, if at all, solely to ferret out bad faith requests. By the same token, the question for decision boils down to whether judicial prescreening of the records-demands stemming from felony investigations can be justified on the theory that all may not be properly motivated.

[152] Even the narrowest possible requisition of toll-billing records may result in disclosure of scores of telephone numbers completely unrelated to the investigation.¹³Information that a reporter-informant contact was made sometime during a given period, for example, normally would necessitate examination of the reporter's records for the entire period, though only one — and possibly none — of the many listings will bear directly on the subject of the investigation. Inevitably facing that prospect, it seems unlikely that an anonymous informant will be incrementally deterred by the realization that any records-request may be somewhat broader than is actually necessary.¹⁴The situation before us is unlikePage 1073that inBranzburg,¹⁵where questions put directly to reporters might occasion a breach of the trust inspiring the confidential relationships with their sources, thus impairing the reporter's credibility — and hence their ability to deal — with informants so betrayed.¹⁶In that context, extensive inquiries would impose a much clearer burden on newsgathering than is discernible here. Nor does disclosure of toll records involve an appreciable likelihood of public exposure, subjecting implicated sources to the kind of community chastisement, loss of employment or simply dreaded notoriety¹⁷that might attach substantial constitutional importance to the divulgence of each and every listing.¹⁸

[153] On the other hand, records-requests "bearing only a remote and tenuous relationship"¹⁹to a proper subject of investigation would become significant in the circumstances at bar insofar as they might engender an inference of bad faith. Indeed, appellants complain most staunchly about past instances of allegedly bad faith investigation, so characterized partly by the scope of the intrusion, and possible future repetition of the supposed abuses. To ensure detection of such instances and an opportunity to nip such conduct then in the bud, as well as to alleviate any chilling effect on covert news sources emanating from the prospect of harassment, appellantsPage 1074seek certain procedural safeguards. Specifically, they ask for notice and the privilege of a hearing, or at least ex parte judicial scrutiny when exigent circumstances foreclose adversary proceedings,²⁰prior to release of any toll-billing record.

[154] One difficulty is that the same remedy is logically invokable by an untold number of others in an intolerable number of constitutionally-indistinguishable situations. It seems apparent that anyone engaged in gathering information from those who wish to remain anonymous can equally claim protection against governmental inquiries designed to harass either party. Similarly, everyone who is party to any legitimate and sensitive association with another would under appellants' theory be entitled to a judicial prescreening of toll-record requests designed to eliminate bad faith probes into those associations and dissipate fears that such transgressions might occur. One would be hard put in any effort to justify for reporters a special safeguard not available to other citizens enjoying comparably vulnerableFirstAmendment relationships.²¹

[155] Nor is there any satisfying reason why judicial screening, if appropriate here, should be limited to attempts to obtain toll-billing records. Without an arbitrarily-drawn line, at least an ex parte judicial procedure would logically become a precondition to any governmental investigative activity that might, if conducted in bad faith, inhibitFirstAmendment freedoms — or, at a minimum, confidential information-gathering and associational relationships. If judicial prescreening of governmental operations is justified by no more than a possibility of harassment of a legitimate confidential alliance susceptible to impairment, a wide range of investigative pursuits would become subject to a general requirement of prior authorization. For quite often investigation into criminality unavoidably touches on sensitive noncriminal associations, and any such enterprise could have been initiated in bad faith.

[156] Not only does appellants' thesis portend these consequences but it would also obliterate every semblance of the showing ordinarily prerequisite to injunctive protection by the judiciary.²²And, equally disturbing, the blanket prescreening mechanism appellants advocate is not even remotely tailored to the size of the problem supposedly occasioning its adoption. To detect and prevent abuses at best shown to occur but rarely, appellants would involve the judiciary in an ongoing audit of governmental felony investigations,²³a safeguard not withholdable from countless others engaged inFirstAmendment activities without judicial endorsement of distinctions themselves repugnant to theFirstAmendment. Throughout our national history the press has flourished without absolute safeguards against governmental misconduct.²⁴The judicial process has always provided, and doubtless will continue to afford, a measure of protection that hardly can be deemed either inadequate or unwholesome; and if every jeopardy to the press heightens, the traditional process will rise to quell it. I am not yet ready to give up on orthodox legal doctrine as the vehicle capable of maintaining a reasonable and workable accommodation between the justifiable needs of reporters and the functional needs of their government.Page 1075

[157] To avoid overly-extensive judicial involvement in investigative activities, courts ordinarily demand a showing that constitutional interests are threatened imminently, and not just speculatively, as a prerequisite to injunctive imposition of prospective restrictions.²⁵On the one hand, a vague possibility of bad-faith governmental conduct — though perhaps projecting some chill onFirstAmendment activity — usually will not prompt extraordinary relief.²⁶On the other hand, demonstration of a "reasonable probability" of impending and irreparable injury will invite an injunctive order to bar its occurrence.²⁷My view is that within this doctrinal framework appellants, like others similarly situated, can obtain adequate protection against undue incursions upon theirFirstAmendment pursuits. If and when appellants establish a threat to newsgathering that has crystallized substantially beyond a general and undifferentiated apprehension of possible future harassment, prospective relief fully commensurate with their needs is obtainable.²⁸For the injunctive process is a highly flexible one, always sensitive and responsive to the exigencies of particular situations.

[158] Indisputably, equitable relief can, and indeed unfailingly should, be "molded and adapted to the circumstances of the case."²⁹Put another way, "since injunctive relief should be equitable above all else, it must always be a question of balancing and of choosing the remedy."³⁰Very importantly for this litigation, the extent and character of the anticipated injury naturally influences the readiness with which relief will bePage 1076afforded.³¹Indeed, the calculus includes "the nature of the case, the probability of future violations, the probable extent of future damage reasonably to be anticipated, and the extent of the impairment of . . constitutionally guaranteed rights as balanced against" countervailing interests.³²

[159] Appellants have asserted, not unreasonably, that the harms ensuing from official misuse of their toll-billing records will be irremediable and unusually severe. More precisely, governmental harassment of newsgathering through bad-faith investigation, so they say, expectably would inflict an enduring burden on thatFirstAmendment activity, and the public's interest in getting all of the news, insofar as appellants' sources might thenceforth decline to communicate valuable information.³³The consequences appellants describe would more predictably occur in some situations than in others, and well-founded apprehensions are susceptible to proof in some degree, at least circumstantially. At the same time, judges should recognize the not infrequent difficulty of translating anticipation into probable fact, and should weigh the evidence in that light in determining whether appellants' asserted interests, as well as the comparable interests of others, are deserving of solicitude. An objective and commonsense approach will do much to shape the kind of showing justifying an award of equitable relief.³⁴

[160] Surely, proof of a pattern of past harassment ordinarily calls forth preventive measures.³⁵But an actionable threat, capable of supporting prospective relief to the extent necessary to dispel it,³⁶may in some casesPage 1077be indicated well enough by less than that. To illustrate, if the Government obtained for purposes of persecution the toll-billing records of a reporter's colleague at work on a mutual or related story sharply critical of the requesting agency, a reasonable likelihood of impending injury — at least at the hands of the official who perpetrated the original misdeed — may be inferrible so long as the news project continues. Of course, a showing by the Government that illicit event was an unfortunate and isolated incident, the better to be dealt with internally, could embarrass the reporter's claim to equitable relief, even against the wayward official.³⁷But, as the Supreme Court has admonished, courts should "beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is a probability of resumption."³⁸If past incidents are to be discarded judicially, "the court must be satisfied that there is no reasonable expectation of future injurious conduct."³⁹

[161] Moreover, an actual instance of harassment might summon the equitable powers of the court in another respect. As we ourselves have declared, "[a]ssuming a determination of constitutional violations, it is undeniable that the Federal courts having subject-matter jurisdiction also have broad equitable power to remedy and obviate all traces of the constitutional wrong."⁴⁰In so saying, we simply echoed the Supreme Court's pronouncement that "[o]nce a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad"⁴¹— because "breadth and flexibility are inherent in equitable remedies."⁴²Consonantly with these principles, a reporter may be able to establish that an incident of harassment was so disruptive of his ongoing newsgathering activities — by virtue of the reluctance of his informants to communicate with him — that some assurance to assuage them against recurrence of the act is essential to effective pursuit of his reporting functions. The peculiar and devastating propensity ofPage 1078the injury alleged and substantiated, then, may justify some guaranty of prior notice, or even some amount of ex parte judicial oversight as an appropriate grant of equitable remediation, for as long as seems necessary to dissipate the impact of the wrongful conduct.⁴³

[162] In still another respect, available relief will be shaped by the magnitude of the constitutional violation portended. It is well settled that a prospective order may run against only those who are privy to the violation.⁴⁴Accordingly, before an injunction may be entered against an agency —quaagency — of the Government, involvement of its policymaking officials must ordinarily be shown.⁴⁵In circumstances suggesting politically-motivated action — appellants' principal concern — an inference of high-level participation might readily arise. The burden of producing evidence to dispel that inference would then fall upon the Government⁴⁶and, within bounds,⁴⁷the ultimate determination would be a factual one for the court. And even when a plaintiff is able to establish no more than involvement of a lone employee of the agency, he may have earned a conventional decree warding off future transgressions by that employee, and incidentally by any and all those "in active concert or participation" with knowledge of the court's order.⁴⁸

[163] I do not mean, of course, to suggest that a district court should ever award injunctive relief⁴⁹when not persuaded that the exigencies of the case demand it. Without doubt, "unduly obstrusive or hasty judicial intervention can undermine the important values of [official] self-restraint and self-respect."⁵⁰I wish simply to emphasize the self-evident proposition that when "plaintiffs establish that a substantial threat of . . . constitutional violations exist," the importance of preserving official initiative "is not the sole consideration for the court."⁵¹I think it bears elaboration, too, that the substantiality and imminency of the threat are not to be determined by talismanic rules, but — in the centuries-old equitable tradition — by careful examination and weighing of all relevant facts, tempered by a pragmatic sensitivity to what is at stake. If any one principle is paramount, it is that the hand of the judiciary will move no more or less surely or intrusively than the circumstances dictate, for only in this fashion courts can "protect the constitutional rights of citizens, while preserving the integrity and efficiency of the law enforcement authorities."⁵²Page 1079

[164] In this doctrinal milieu, I think appellants can adequately guard against any appreciable inhibition on their newsgathering activities from ill-motivated governmental attempts to peruse their toll-billing records. Only five of the appellants, however, have endeavored to substantiate, or even to aver, any singular threat to their newsgathering efforts, and thus far have made only a lukewarm showing at that. All five allege that on one occasion, their records were obtained for political purposes, but none has recounted any substantial withering of confidential sources or even a single instance of informant-withdrawal clearly attributable to assertedly illegal conduct.⁵³Indeed, the record evinces on the whole a strikingly meager impact on appellants' constitutionally-protected endeavors stemming from governmental uses of toll-billing records in the course of criminal investigations.⁵⁴Nonetheless, viewed liberally, the evidentiary showings of these five appellants are enough to entitle them to the opportunity to a fuller presentation at trial, and resultantly summary judgment as to them was inappropriate. Dismissal of the suit with respect to the others is, of course, without prejudice to any future attempt by them to obtain similar relief on a more particularized basis. So, as qualified by these observations, I concur in partial affirmance and remand of this case.

[165] J. SKELLY WRIGHT, Chief Judge, dissenting:

[166] Appellants, twelve professional journalists,¹two corporations which publish newspapers,²and the Reporters Committee for Freedom of the Press, a legal research and defense fund, brought suit in the District Court for declaratory and injunctive relief on the basis of their claim that theFirstAmendment requires that prior judicial supervision be afforded before the American Telephone Telegraph Company (ATT) turns over their long distance telephone billing records to Government officials. The District Court granted summary judgment in favor of the defendants in this action, ATT and the United States, and dismissed the suit. This appeal followed.

[167] Relying on the Supreme Court's decisions inBranzburg v.Hayes,408 U.S. 665,92 S.Ct. 2646,33 L.Ed.2d 626(1972), andZurcher v. Stanford Daily,436 U.S. 547,98 S.Ct. 1970,56 L.Ed.2d 525(1978), the majority today holds that appellants are not entitled under theFirstAmendment to any prior judicial supervision of Government demandsPage 1080for their toll billing records. Both of these decisions, however, far from holding that theFirstAmendment rights involved were deserving of no procedural protections, turned explicitly on the determination that the prior judicial scrutiny on a case-by-case basis whichwasafforded was sufficient to protect theFirstAmendment rights at stake. In the instant case, on the other hand, no form of judicial scrutiny at all is provided.

[168] In view of these decisions, and taking account of the interests asserted here by both the Government and the appellants, it is my opinion that some opportunity for judicial scrutiny such as that afforded inBranzburgandStanford Dailymust be provided here as well. In rejecting this conclusion the majority fails to accord adequate weight to the criticalFirstAmendment interests at issue here, and fails to provide appellants with the protection of prior judicial scrutiny which has long been recognized to be appropriate whereFirstAmendment rights are at stake. I therefore respectfully dissent.

[169] I. BACKGROUND

[170] Prior to 1974 ATT had no formal policy governing provision of long distance toll billing records to Government investigators. Instead, the decisions were left to individual operating companies,³whose general practice was to provide such records whenever requested with no notice afforded to the subscriber by either the Government or the companies.⁴On at least five, and allegedly six, occasions⁵the toll billing records of appellants were provided to the Government in accordance with this general practice. During the summer of 1971, for example, after the printing of portions of the Pentagon Papers in publications with which Richard Dudman and Knight Newspapers were affiliated, the Chesapeake Potomac Telephone Company (CP) provided agents of the Federal Bureau of Investigation (FBI) involved in the Daniel Ellsberg-Pentagon Papers investigation with the long distance records for telephones listed to Dudman and Knight Newspapers. Joint Appendix (JA) 268-270. That same summer the FBI, acting on a White House request that it learn the sources of a column by Jack Anderson about an official of the Agency for International Development who had "crashed" a party for Vice President Agnew which, in the words of a State Department cable quoted by Anderson, "culminated in his getting sloshed," secured from CP toll records for telephones listed to Anderson and three of his employees. JA 168-171, 219-221.⁶A final example worthy of note occurred in early 1974 and involved David Rosenbaum of the New York Times. A taxpayer complained to the Internal Revenue Service (IRS) that Rosenbaum knew about an investigation ofPage 1081the taxpayer being conducted by the IRS, and that Rosenbaum had suggested to the taxpayer that the investigation was being suppressed for political reasons. Although the IRS knew the identity of the agent likely to be Rosenbaum's source, it nonetheless requested and received from CP the toll billing records, not only for Mr. Rosenbaum's telephone, but for all the telephones of the entire staff of the Washington Bureau of the New York Times for a six-month period. JA 241-246, 289-291.⁷

[171] In none of these or the other admitted cases of Government requests for appellants' phone records was the Government agency involved required to establish probable cause for its request or to secure any form of judicial approval. Nor did the telephone companies in any way challenge the Government's authority to obtain the requested information. And neither the Government nor the telephone companies made any effort in any of these cases to notify the reporter or newspaper whose records were being sought of the request. As a result, at no time was the validity or constitutionality of the Government requests subject to any form of judicial scrutiny.

[172] In December 1973 appellants wrote to ATT requesting written assurances that their toll billing records would no longer be provided to Government investigators without reasonable notice to the journalists involved.⁸In their letter appellants expressed their concern — which underlies this litigation — that listings of dates, times, and long distance telephone numbers called by a reporter could be used by the Government to identify the reporter's confidential sources.⁹Following this request ATT and its operating companies, after meetings and discussions with Justice Department officials, JA 106-114, adopted a more formal policy governing compliance with Government requests for toll billing records. JA 39-43. Under this policy toll records are to be furnished whenever companies are presented with a Government summons. JA 40. While the policy purports to make notice to subscribers the general rule, it does not require that notice be providedpriorto the company's compliance with the Government request.¹⁰Moreover, the ATT policy allows for deferral of notice for at least 90 days whenever the Government certifies that notice "could impedethe investigation." JA 40-41 (emphasis added).¹¹Significantly, ATT had originally proposed that notice be deferred only where the Government certified that notice "would obstruct and impedethe investigationPage 1082being conducted." JA 120 (emphasis added). The language was altered at the Government's request.

[173] In effect, ATT's formal policy effects no substantial change from pre-1974 practice. During the period from March 1, 1974, when the new policy went into effect, through June 30, 1975, Government investigators on 32,000 occasions sought and received long distance toll records from the telephone companies. In 90 percent of these cases no notice wasevergiven to subscribers. JA 227-229. And, unlikeBranzburgandStanford Daily,in none of them was judicial approval ever obtained.

[174] II. THEFIRSTAMENDMENT CLAIM

[175] Appellants' claim that they are entitled to notice of Government requests for their toll billing records is founded on theFirstAmendment.¹²Relying heavily on the Supreme Court's decision inBranzburg v. Hayes, supra,appellants argue that theirFirstAmendment rights to gather and disseminate news are implicated when the confidentiality of their sources is threatened. Toll billing records, they point out, can be used by the Government to identify those sources with whom a journalist communicates by long distance telephone¹³— including sources wholly unrelated to the investigation being conducted by the Government. While the presence of theseFirstAmendment interests does not mean that toll billing records may never constitutionally be disclosed, they argue, it does require judicial supervision prior to Government access to ensure that the requests are justified and the scope of disclosure limited in light of the constitutional interests involved.

[176] In evaluating this claim I must begin by pointing out what is not involved here. First, this is not a case in which we are called upon to hold that journalists enjoy protection against certain forms of governmental action above and beyond other citizens. We deal here only with the claims of a discrete group of admittedly professional journalists and publishers continuously engagedPage 1083in the processes of gathering and distributing news. Whether or under what circumstances procedural protections should be afforded to other individuals on the basis of otherFirstAmendment claims is a decision which is not before us today. Nor is this a case which requires us to establish new standards for balancing individual and governmental interests or to decide whether disclosure of toll billing records is justified in any particular case. Appellants seek only a declaration that their constitutional rights are threatened by the disclosure process, and that judicial supervision according to establishedFirstAmendment standards is therefore necessary.

[177] The issues which this case does present are twofold: whether appellants possess anyFirstAmendment interest which is threatened by disclosure of their toll billing records to the Government and, if so, whether they are entitled to an opportunity for prior judicial supervision on a case-by-case basis to safeguard that interest.¹⁴In my view,Branzburg v.HayesandZurcher v. Stanford Daily,considered in light of the circumstances present in this case, mandate an affirmative answer to both questions.

[178] A.TheFirstAmendment Interest in Newsgathering

[179] InBranzburgthe Supreme Court was confronted with the claims of three reporters that they should not be required either to appear or to testify before a grand jury or at trial unless substantial showings of relevance and need were first made.¹⁵The "heart of the claim" inBranzburg,according to the Court, was "that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information."408 U.S. at 681,92 S.Ct. at 2656. While the Supreme Court rejected this claim and held that the reporters involved were required to testify, it explicitly recognized that newsgathering does qualify forFirstAmendment protection. "[W]ithout some protection for seeking out the news," the Court noted, "freedom of the press could be eviscerated."Id.

[180] In reaching its conclusion that the public interest in investigating and prosecuting crimes justified any burden imposed onFirstAmendment rights inBranzburg,the Court emphasized the critical role of the grand jury in our system of justice and the limited nature of the intrusion on a reporter's relationship with confidential sources. The grand jury's authority to subpoena witnesses, the Court noted, is not only historic, but essential to its constitutionally mandated task of inquiring into possible criminal conduct and returning only well founded indictments.Id.at 688,92 S.Ct. 2646. And the refusal to create a testimonial privilege for reporters subpoenaed in grand jury investigations does not "threaten the vast bulk of confidential relationships between reporters and their sources. Grand juries address themselves to the issues of whether crimes have been committed and who committed them. Only where news sources themselves are implicated in crime or possess information relevant to the grand jury's task need they or the reporter be concerned about grand jury subpoenas."Id.at 691,92 S.Ct. at 2661. These were not cases, the Court added, where a governmental institution "has abused its proper function, as a legislative committee does when it `expose[s] for the sake of exposure.' * *Page 1084Nothing in the record indicates that these grand juries were `prob[ing] at will and without relation to existing need.' * * * Nor did the grand juries attempt to invade protectedFirstAmendment rights by forcing wholesale disclosure of names and organizational affiliations for a purpose that was not germane to the determination of whether crime has been committed * *."Id.at 699-700,92 S.Ct. at 2666.

[181] The Court's recognition ofFirstAmendment protection for newsgathering and the limitation ofBranzburg'sbalance to cases of good faith grand jury investigations were reiterated in the concluding paragraphs of Justice White's opinion for the Court. There he again stated that

news gathering is not without itsFirstAmendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under theFirstAmendment. 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. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of theFirstAmendment as well as the Fifth.

[182]408 U.S. at 707-708,92 S.Ct. at 2670(footnote omitted). These same themes, and "the limited nature of the Court's holding," were emphasized more strongly still by Justice Powell — the fifth member of the majority — in his concurring opinion:

The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources. * * *

As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will be tolerated. * * * Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered.The asserted claim to privilegeshould be judged on its facts by the striking of aproper balance between freedom of the press and theobligation of all citizens to give relevant testimonywith respect to criminal conduct. The balance ofthese vital constitutional and societal interests ona case-by-case basis accords with the tried andtraditional way of adjudicating such questions.

In short, the courts will be available to newsmen under circumstances where legitimateFirstAmendment interests require protection.

[183]Id.at 709-710,92 S.Ct. at 2671(emphasis added; footnote omitted).

[184] While reporters have, sinceBranzburg,been required on some occasions to disclose confidential sources in grand jury investigations and at trials, the courts have consistently readBranzburgas recognizing theFirstAmendment interests of reporters in confidentiality and as requiring a judicial balancing before disclosure is ordered. For example, inFarr v.Pitchess,522 F.2d 464,467-468(9th Cir. 1975),cert. denied,427 U.S. 912,96 S.Ct. 3200,49 L.Ed.2d 1203(1976), the Ninth Circuit stated:

It is clear thatBranzburgrecognizes someFirstAmendment protection of news sources. * * * The precise holding ofBranzburgsubordinated the right of the newsmen to keep secret a source of information in face of the more compelling requirement that a grand jury be able to secure factual data relating to its investigation of serious criminal conduct.

[185] And inCarey v. Hume,160 U.S.App.D.C. 365, 369, 492 F.2d 632, 636,cert. dismissed,417 U.S. 938,94 S.Ct. 2654,41 L.Ed.2d 661(1974), this court, before upholding an order of disclosure in a civil libel suit, adopted as its approach one in which "the court will look to the facts on a case-by-case basis in the course of weighing the need for thePage 1085testimony in question against the claims of the newsman that the public's right to know is impaired." InCareythe court found that the information sought "appears to go to the heart of appellee's libel action,"id.; compare Baker v. F FInvestment,470 F.2d 778(2d Cir. 1972),cert. denied,411 U.S. 966,93 S.Ct. 2147,36 L.Ed.2d 686(1973) (disclosure not required); in ordering disclosure, however, it cautioned that "[t]he courts must always be alert to the possibilities of limiting impingements upon press freedom to the minimum; one way of doing so is to make compelled disclosure by a journalist a last resort after pursuit of other opportunities has failed."Id.at 639.See also Cervantes v. Times, Inc.,464 F.2d 986(8th Cir. 1972),cert. denied,409 U.S. 1125,93 S.Ct. 939,35 L.Ed.2d 257(1973);Burseyv. United States,466 F.2d 1059,1090(9th Cir. 1972) (contempt convictions for refusal to answer sweeping grand jury questions reversed; rehearing subsequent toBranzburgdenied);Morgan v. State,337 So.2d 951(Fla. 1976) (reversing contempt conviction of reporter where grand jury was not investigating a crime).

[186] TheFirstAmendment interests of journalists in gathering and disseminating news were addressed most recently by the Supreme Court inZurcher v. Stanford Daily, supra.In that case the Court upheld the search of a newspaper office on the basis of a warrant issued by a judicial officer after a probable cause showing. In doing so, however, the Court did not deny that theFirstAmendment was implicated by the search of newspaper offices. Rather, the dispositive factor was that so long as the officer issuing the warrant "take[s] cognizance of the independent values protected by theFirstAmendment" in determining whether the search is reasonable,¹⁶the procedures afforded by the warrant requirement are sufficient to protect the newspaper'sFirstAmendment rights.

[187] In light ofBranzburgand these subsequent decisions, I think there can be no question but that newsgathering does qualify forFirstAmendment protection. Nor can there be any doubt that newsgathering encompasses contacts with confidential sources of information, who may serve as the first step in the process of gathering, editing, and distributing information to the public. And the circumstances of this case, more strikingly than testimony before a grand jury, betray the potential for substantial infringement of this confidentiality and, with it, substantial burdening of theFirstAmendment rights of reporters — and of the flow of information to the public.

[188] As a practical matter, appellants may often have little choice but to use long distance telephone lines to communicate with confidential sources outside the immediate area in which they work. Their toll billing records will therefore include information which can easily be used to identify their news sources — including those sources who would refuse to provide information in the absence of solemn and reliable assurances of confidentiality. Release of these records, in contrast to narrow grand jury questioning with regard to a particular crime or crimes, does, in effect, force "wholesale disclosure of names."Branzburg v. Hayes, supra,408 U.S. at 700,92 S.Ct. 2646. The Government learns not only the names of individuals "implicated in crime or possess[ing] information relevant to the grand jury's task,"id.at 691,92 S.Ct. at 2661, but also the names of all the sources with whom the reporter has communicated, many of whom may be individuals who bear no relation toanypotential criminal investigation and thus would never be subject to disclosure through grand jury proceedings.¹⁷Indeed,Page 1086the possibility that their names may secretly become available to the Government may "chill" sources generally,see Gooding v.Wilson,405 U.S. 518,92 S.Ct. 1103,31 L.Ed.2d 408(1972);Zwickler v. Koota,389 U.S. 241,245-252,88 S.Ct. 391,19 L.Ed.2d 444(1967);Dombrowski v. Pfister,380 U.S. 479,491,85 S.Ct. 1116,14 L.Ed.2d 22(1965), thus denying the public information by depriving the journalist of one of his more important means of information gathering.

[189] And once a reporter's records are released, the damage is done. The Government can immediately identify all of the reporter's confidential sources, and the subsequent return of the records, or even a monetary award, cannot undo the injury. Moreover, ATT's release of toll billing records is not limited to subpoenas from grand juries charged with the "essential task" of investigating crime necessary to "securing the safety of the person and property of the citizen,"Branzburg v. Hayes, supra,408 U.S. at 700,92 S.Ct. at 2666, and subject to judicial supervision. Forty-seven Government agencies, many with jurisdiction unrelated to enforcement of criminal laws, possess authority to request and obtain such records,¹⁸usually in secret, on their own initiative, and without any judicial control.

[190] B.Procedural Protections Under theFirstAmendment

[191] Having recognized a substantiveFirstAmendment interest on the part of appellantsPage 1087here — a recognition which, I think, the majority today must share — the question then becomes whether procedures for prior judicial scrutiny should be afforded appellants as a matter ofFirstAmendment right. As the situation currently stands, no such scrutiny is available. Government summonses are issued without any form of judicial participation, and without any requirement of a showing equivalent to probable cause. The telephone companies themselves have no rights or interests to protect and therefore no basis and little incentive for challenging the scope or substance of the requests they receive. And because no notice is provided, appellants lack the opportunity to protest to a court, a right they would have if, as inBranzburg,they themselves were subpoenaed to testify or produce records in their possession.

[192] In theory, of course, I think there can be no question that should appellants learn of government subpoenas for their records, they would have standing to go to court and move that such subpoenas be quashed. While the subpoenas here are addressed to the telephone companies rather than to appellants, the Government's argument that this fact renders them immune from challenge by appellants seems to me clearly without merit.¹⁹A similar argument was summarily rejected by this court inUnited States Servicemen's Fund v. Eastland,159 U.S.App.D.C. 352,488 F.2d 1252(1973),rev'd on other grounds,421 U.S. 491,95 S.Ct. 1813,44 L.Ed.2d 324(1975), in which a political association sought to enjoin execution of a congressional subpoena for the association's bank records. We stated in that case: "If the forced disclosure of the information concerning contributors to and membership in the appellant association violates itsFirstAmendment rights, then it is too clearly an aggrieved person when a third person is under compulsion by the defendants to disclose this information to warrant discussion." 159 U.S.App.D.C. at 361,488 F.2d at 1261. While reversing our decision on the merits on the ground of congressional immunity, the Supreme Court affirmed our holding that the Fund had standing to challenge the subpoena.421 U.S. at 501n. 14,95 S.Ct. 1813. More recently, inUnited States v. ATT,185 U.S.App.D.C. 254,567 F.2d 121(1977), a suit brought by the Justice Department to enjoin ATT from complying with a congressional subpoena, this court found that "the fortuity that documents sought by a congressional subpoena are not in the hands of a party claiming injury from the subpoena should not immunize that subpoena from challenge by that party. * * * The fact that the Executive is not in a position to assert its claim of constitutional right by refusing to comply with a subpoena does not bar the challenge * * *." 185 U.S.App.D.C. at 262,567 F.2d at 129.

[193] But while there can be no doubt that appellantsdohave the right to challenge subpoenas or summonses for their toll billing records, the current practices of the Government and ATT serve effectively to deprive them of any opportunity to do so. The Government itself does nothing to ensure that notice is provided. And as for ATT, while its policy purports to make notice to the subscriber the general rule, in 90 percent of the 32,000 instances in which individual toll records were provided to the Government between March 1, 1974 and June 30, 1975, no notice wasevergiven to the subscriber. JA 227-229. TheFirstAmendment rights of appellants in this situationPage 1088are thus protected only to the extent that they happen to learn of a request for their records either through the unlikely receipt of a phone call from the telephone company — and only one call is made even where notice is provided²⁰— or through some other source of their own.

[194] It is this purely random availability of procedural protections forFirstAmendment rights which I find wholly unacceptable. And, far from representing a safeguard that is in any sense unique, provision of judicial scrutiny has long been recognized as a fundamental element ofFirstAmendment freedoms. Beginning primarily in the obscenity area and extending into other areas whereFirstAmendment rights are at stake, the Supreme Court has insisted on procedural safeguards which demonstrate "the necessary sensitivity to freedom of expression."Freedman v.Maryland,380 U.S. 51,58,85 S.Ct. 734,739,13 L.Ed.2d 639(1965). Such procedures do not serve as a form of equitable relief; to the contrary, they are grounded directly on theFirstAmendment and "assume an importance fully as great as the validity of the substantive rule of law to be applied."Speiserv. Randall,357 U.S. 513,520,78 S.Ct. 1332,1339,2 L.Ed.2d 1460(1958).

[195] The critical element in such procedures has been the availability of "judicial superintendence" to ensure thatFirstAmendment rights are protected.Bantam Books, Inc. v. Sullivan,372 U.S. 58,83 S.Ct. 631,9 L.Ed.2d 584(1963). InFreedman v.Maryland, supra,for example, a Maryland statute providing for advance prescreening of motion pictures was struck down on the ground that it did not provide "for judicial participation in the procedure which bars a film, nor even assurance of prompt judicial review. * * * Only a procedure requiring a judicial determination," the Court found, "suffices to impose a valid final restraint."380 U.S. at 58,85 S.Ct. at 739.²¹And certainly, as Professor Monaghan has noted in detailing the development ofFirstAmendment procedural requirements, "[i]f the Constitution requires elaborate procedural safeguards in the obscenity area, a fortiori it should require equivalent procedural protection when the speech involved — for example, political speech — implicates more centralfirstamendment concerns." Monaghan,FirstAmendment "Due Process",83 Harv.L.Rev. 518, 519 (1970).

[196] Any lingering doubt as to the importance of judicial scrutiny to protection ofFirstAmendment rights — and, in particular, to newsgathering rights such as those at issue here — must be laid to rest by the Supreme Court's decisions inBranzburg v. HayesandZurcher v. Stanford Daily.The determinative vote in both those decisions was cast by Justice Powell on the basis of his view that the majority opinions did indeed provide for prior judicial scrutiny and thus afforded sufficient protection to theFirstAmendment rights at stake. The pertinent language from his opinion inBranzburgis quoted in full above,²²and a similar emphasis is found inStanford Daily.There the question was not whether any judicial scrutiny is required where theFirstAmendment rights of reporters and newspapers are endangered by a search of a newspaper office; rather, the issue was whether the protections afforded by theFourthAmendment warrant requirement were sufficient forFirstAmendment purposes as well. The majority, reasoning that the requirements of theFourthAmendment must be applied with "scrupulous exactitude" whereFirstAmendment rights are at stake, concluded that, if so applied, those requirements were sufficient to protect the constitutional interests of the reporters.436 U.S. at 547,98 S.Ct. 1970,quoting Stanford v. Texas,379 U.S. 476,485,85 S.Ct. 506,Page 108913 L.Ed.2d 431(1965). In his concurrence Justice Powell again stressed that the majority's decision did protectFirstAmendment interests through the obligation imposed on the judicial officer, in determining whether a warrant should issue, to take account ofFirstAmendment interests:

This is not to say that a warrant which would be sufficient to support the search of an apartment or an automobile necessarily would be reasonable in supporting the search of a newspaper office. As the Court's opinion makes clear * * * the magistrate must judge the reasonableness of every warrant in light of the circumstances of the particular case, carefully considering the description of the evidence sought, the situation of the premises, and the position and interests of the owner or occupant. While there is no justification for the establishment of a separateFourthAmendment procedure for the press,amagistrate asked to issue a warrant for the search ofpress offices can and should take cognizance of theindependent values protected by theFirstAmendment—such as those highlighted by Mr. Justice Stewart—when he weighs such factors.If the reasonableness and particularity requirements are thus applied, the dangers are likely to be minimal. * * *

[197]436 U.S. at 569-70,98 S.Ct. at 1984(emphasis added; footnote omitted). Thus in bothBranzburgandStanford Dailythe decisions of the Supreme Court turned explicitly on the availability of adequate judicial protections to safeguardFirstAmendment rights. InBranzburg,as Justice Powell pointed out, the reporter could seek judicial review of the grand jury subpoena through a motion to quash; at that point the court was charged with "balanc[ing] [the] vital constitutional and societal interests on a case-by-case basis."408 U.S. at 710,92 S.Ct. at 2671. Similarly, the warrant procedure, as upheld inStanfordDaily,ensures thatFirstAmendment rights of the press will not be jeopardized by searches unless and until a judicial officer has first concluded that the search is reasonable in light of theFirstAmendment values at stake. And an initial showing of need is required in both cases: a grand jury must demonstrate a reasonable need for evidence in order to justify production under a subpoenaduces tecum,and a judicial officer is empowered to issue a warrant only upon a showing of probable cause.²³

[198] C.TheFirstAmendment Balance

[199] In this case, I think, the record clearly demonstrates that the potential intrusions on theFirstAmendment rights of the appellants are at least as great as those presented inBranzburgandStanford Daily.And I am unable to discern a governmental interest in avoiding any form of judicial scrutiny which would distinguish this case fromBranzburgandStanfordDaily.The procedural protections upon which the Court relied in bothBranzburgandStanford Daily,however, are completely lacking in this case. Here the question is not whether existing procedures for judicial scrutiny — through motions to quash or a warrant requirement based on probable cause — are sufficient to protect theFirstAmendment interests of appellants. For no such procedures are available.

[200] In my view, theFirstAmendment mandates that they must be. While I would not impose protections greater than those available inBranzburgandStanford Daily,I think it follows from those two decisions and from the interests asserted before us today that some form of prior judicial scrutiny must be available. Whether this scrutiny is provided by giving notice to the reporter — so as to afford an appellant here, like the reporters inBranzburg,an opportunity to file a motion to quash — or by a requirement — like the warrant requirement upheld inStanford Daily— that government receive prior judicial approval before it secures an appellant's records, is not critical. But some judicial scrutiny must be available.Page 1090

[201] In reaching this conclusion, I do not suggest that every government investigative technique which ever poses any threat toFirstAmendment freedoms necessitates imposition of full procedural protections, no matter what the cost to government. As the Supreme Court's opinions have consistently made clear, what is called for in determining what procedural protections must be afforded is a consideration of the scope of intrusion onFirstAmendment rights as well as the legitimate interests of government in avoiding whatever costs might accompany imposition of procedural safeguards. In this case, I think, consideration of these factors clearly warrants striking the categorical balance in favor of protection for appellants' interests and thus affording them the same procedural safeguards as those available to the reporters inBranzburgandStanford Daily.

[202] 1.The Scope of the Intrusion

[203] On the one hand, as noted earlier in setting forth the constitutional interest in newsgathering, the record clearly establishes that the danger posed to appellants'FirstAmendment interests — and to the public interest in learning of the news — by unrestricted Government access to their toll billing records is a substantial one. The reporters, in the conduct of their professional endeavors, are engaging exclusively in activity protected by theFirstAmendment. Their use of business telephones for long distance calls is primarily if not exclusively for this protected activity — gathering news.SeeJA 167, 174-180, 195-197. To restrain or foreclose appellants from making use of their telephones for long distance calls is, in effect, to foreclose them from engaging in newsgathering activity; the burden involved is placed squarely and directly — and exclusively — onFirstAmendment rights.

[204] That the practices of the Government and ATT for disclosing appellants' toll billing records do impose such a burden is also made clear by the record. The specific incidents of disclosure cited by appellants, it is true, occurred prior to adoption of ATT's formal policy in 1974. But the figures noted earlier make clear that such disclosure continues to be widespread, and that notice to the subscriber is the rare exception rather than the rule.²⁴The continuing and largely secret use of phone billing records in Government investigations on such a substantial scale poses serious obstacles to appellants' performance of their professional duties and may chill their "free and robust exercise of the[ir]FirstAmendment rights * * *."Zweibon v. Mitchell,170 U.S.App.D.C. 1, 40,516 F.2d 594,633(1975)(en banc), cert. denied,425 U.S. 944,96 S.Ct. 1684,48 L.Ed.2d 187(1976). And while concrete evidence is difficult to produce without compromising the confidentiality which appellants here seek to protect,²⁵the record does contain incidents suggesting real and substantial harm to newsgathering as a result of disclosure without notice.

[205] Appellants have offered a number of affidavits attesting to the critical importance of the telephone to effective newsgathering and asserting that at least some sources will refuse to communicate with reporters by long distance telephone where their confidentiality cannot in any way be protected.²⁶Indeed, in at least one case where toll billing records were disclosed in the past, the sources whose telephone numbers appeared on the records, with only one exception, never again provided any information to the journalist involved.²⁷Moreover, thePage 1091possibility that sources will be identified through toll billing records can and does cause reporters to limit their contacts with sources who might otherwise provide newsworthy material, and to curtail their use of an essential newsgathering device, the telephone. Thus David Rosenbaum, after learning of the IRS request for his telephone records, ceased contacting one potentially very useful source because he feared their relationship might become known. JA 183. At the same time, so long as providing information to a reporter by telephone often leads toautomaticdisclosure of one's name to government authorities,²⁸many individuals who are potential sources may simply refuse to communicate with reporters, causing the reporters, as well as the public, to lose newsworthy information.

[206] Even apart from the chilling effect of appellees' disclosure practices on appellants' current use of their telephones, a further, continuing burden is imposed by the Government's practices once it secures the records. According to FBI agents, reporters' toll records are kept in files indexed according to the reporter's name, with access to these files available to virtually any FBI agent. JA 214-216. Thus the Jack Anderson toll records acquired by the FBI in 1971 remain on file and generally available to FBI employees. JA 224-225. Moreover, even with respect to the records of David Rosenbaum and the New York Times Washington Bureau, which IRS Commissioner Alexander ordered returned to CP, some records remain available since the IRS failed to retrieve copies of "collateral requests" containing information from these records from district IRS offices.

[207] 2.The Governmental Interest

[208] In striking aFirstAmendment balance the legitimate needs and interests of Government investigators must clearly be accorded substantial weight. This is particularly true where, as in at least some of the cases of Government demands for toll records, the Government is conducting investigations of criminal felonies. But this fact alone does not immunize every technique the Government employs in the pursuit of a legitimate investigation fromFirstAmendment scrutiny. It is well established that theFirstAmendment imposes limits on what would otherwise be considered legitimate techniques of governmental investigation.See Shelton v. Tucker,364 U.S. 479,81 S.Ct. 247,5 L.Ed.2d 231(1960);NAACP v. Alabama,357 U.S. 449,78 S.Ct. 1163,2 L.Ed.2d 1488(1958). And the "validation cf the broad subject matter under investigation does not necessarily carry with it automatic and wholesale validation of all individual questions, subpoenas, and documentary demands."Gibson v. FloridaLegislative Investigation Committee,372 U.S. 539,83 S.Ct. 889,9 L.Ed.2d 929(1963).

[209] In this case the issue is not whether the Government should ever have access to appellants' toll billing records; it is simply whether some form of judicial supervision should be available prior to affording access to the Government. As to this latter question, I am unable to detect any substantial or legitimate Government interest in avoiding judicial scrutiny. For the objects of Government requests in this case — toll billing records — are subject to neither change nor destruction as a result of any delay or breach of secrecy which may accompany judicial supervision; the records are in everyPage 1092sense "frozen" in the hands, not of appellants, but of the telephone companies. Nor does the record suggest that disclosure of the existence of an inquiry which would accompany notice to appellants would generally pose a substantial obstacle to Government investigations. Indeed, the statement of one FBI agent, based on his 23 years of experience, with respect to the investigation of Jack Anderson suggests that this would rarely be the case:

A. Based on my experience as an FBI agent the crime had already been committed. The only thing that could have happened which would have hurt the investigation by notifying him that we subpoenaed his toll records was that we wouldn't get the toll records, that he would some way stop us from getting them. Once we got the toll records, notifying him wouldn't have hurt us at all because he couldn't change anything at that point or impeed [sic] the investigation.

[210] Deposition of James F. Gaffney, JA 216-217.

[211] Once appellants have been notified of Government demands for their toll billing records, the burden of invoking the judicial process to test the appropriateness of disclosure would rest with them. In situations where no tenableFirstAmendment claim can be made in opposition to disclosure, appellants can be expected to forego the opportunity to initiate fruitless proceedings. Accordingly, a system of prior notice, by placing the burden of going forward on the appellants, would tend to minimize the administrative and legal costs the Government would have to bear. There would be no need for it to establish before a court the legitimacy of every request for toll billing records. On the contrary, only those raising genuineFirstAmendment issues are likely to be challenged — and those are, of course, precisely the requests that should be screened in light of the constitutional interests at stake.

[212] That a system of prior notice and opportunity to challenge would minimize the burdens imposed on the Government can be seen by reference to other contexts. For example, the House Banking Committee recently approved for inclusion in the Safe Banking Act provisions requiring that notice of most official demands for a bank customer's financial records be given prior to their disclosure so that the customer has a chance to test the validity of the official demand. The provision had the support of Justice Department officials who urged that it would meet the congressional goal of protecting the individual while easing the burdens placed on the Government by discouraging "frivolous" challenges and deliberate stalling tactics.²⁹Similarly, Congress in 1976 required the Internal Revenue Service to provide prior notice to taxpayers of various summonses for documents in the possession of third parties.³⁰Far from leading to administrative havoc, the response was quite limited. Only about three percent of the thousands of summonses issued by the Service since the law took effect have been challenged and the agency has won those tests in court.³¹In the instant case, there seems to be every reason to suppose that an analogous system of prior notice and opportunity to challenge would be an effective way to accommodate the potentially conflicting interests at play.

[213] While we have been presented with no evidence suggesting any legitimate need for secrecy as a general rule, I recognize the possibility that a case may arise in which disclosure of the existence of a particular investigation occasioned by notice to appellants would substantially impair the conduct of that investigation.³²Such situationsPage 1093present clear analogies toFourthAmendment cases, where notice is generally inconsistent with the governmental need to secure records or other materials andex partewarrants are therefore essential to preservation of the objects of government search. In the instant case such dangers are not present: because the records in question relate only to past events, and because they are in the hands of the telephone companies, there is no basis for concern that they will be removed or destroyed if notice is given to appellants. But where notice will in fact generate harms of another sort — where it will substantially hamper a Government investigation which is then at a stage where secrecy as to its existence remains critical — then notice need not be provided.

[214] This does not mean, however, that judicial scrutiny should be avoided as well. InUnited States v. United States DistrictCourt(Keith),407 U.S. 297,92 S.Ct. 2125,32 L.Ed.2d 752(1972), the Supreme Court held that electronic surveillance authorized by the President for internal security matters is not exempt from theFourthAmendment's requirement of prior judicial approval.407 U.S. at 321,92 S.Ct. 2125. In so doing the Court rejected the argument that the warrant requirement is inconsistent with the need to maintain secrecy in national security investigations: "Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. The investigation of criminal activity has long involved imparting sensitive information to judicial officers who have respected the confidentialities involved. Judges may be counted upon to be especially conscious of security requirements in national security cases."Id.at 320-321,92 S.Ct. at 2138. And inZweibon v. Mitchell, supra,this court extendedKeith's holding to surveillance of domestic organizations on foreign affairs grounds. The argument that the need for secrecy is sufficient to vitiate the warrant requirement was rejected inZweibonas "no more persuasive in the foreign security context" than in the domestic security context involved inKeith.170 U.S.App.D.C. at 54,516 F.2d at 647. "Since the warrant proceeding is conductedex parte," theZweiboncourt reasoned, "disclosure of information can be restricted to the judge; administrative personnel can be provided by the Government should he require clerical or other assistance."Id.

[215] These cases clearly establish that, even in the most sensitive circumstances involving domestic security and foreign affairs, the need for secrecy does not foreclose prior judicial scrutiny on anex partebasis. Thus, while notice to appellants of requests for their toll billing records need not be given where it would substantially impair a Government investigation, protection of appellants' constitutional interests requires that these requests be subject to prior judicial scrutiny inexparteproceedings. The need for secrecy may foreclose an adversary hearing accompanied by notice; it does not, however, justify leaving appellants withnojudicial protection for their constitutional rights.

[216] III. THE APPROPRIATE REMEDY — THE FUNCTION OF JUDICIAL SUPERVISION

[217] The majority agrees with me, I think, that appellants' newsgathering activities — including their use of the telephone to communicate with confidential sources — are protected by theFirstAmendment. The majority agrees, too, that in at least some cases Government requests for appellants' toll billing records may unconstitutionally impinge on theirFirstAmendment freedoms. But the majority takes the position that the only purpose which would be served by prior judicial scrutiny would be to "screen" out cases of bad faith harassment by the Government. And since such cases are likely to be rare, the majority concludes that a right to judicial scrutiny is unnecessaryPage 1094and should not be recognized. Instead, the majority provides that as a matter of equitable relief, if an individual appellant can establish that he is in imminent danger of being unlawfully deprived of his constitutional rights by disclosure of his records, then and only then he is entitled to notice.

[218] The majority's conclusion here, it seems to me, is based upon a fundamental misconception of the purpose of prior judicial scrutiny. To begin with, as noted earlier, theFirstAmendment does impose limits on otherwise legitimate government investigative techniques; it does not serve only as a bar to bad faith harassment, which is unlawful in any event without reference to theFirstAmendment. "WhereFirstAmendment rights are asserted to bar the governmental interrogation," the Supreme Court has held, "resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown."Barenblatt v. United States,360 U.S. 109,126,79 S.Ct. 1081,1093,3 L.Ed.2d 1115(1959). Indeed, the Supreme Court has gone further, holding that "[i]t is an essential prerequisite to the validity of an investigation which intrudes into the area of constitutionally protected rights of speech, press, association and petition that the State convincingly show a substantial relation between the information sought and a subject of overriding and compelling [government] interest."Gibson v.Florida Legislative Investigation Committee, supra,372 U.S. at 546,83 S.Ct. at 893.

[219] The majority, however, takes the position thatBranzburgandStanford Dailyestablish that where what is involved is a good faith criminal investigation, the individual appellant'sFirstAmendment interest in newsgathering mustalwaysbe subordinated to the Government interest so that no purpose would be served by affording judicial scrutiny. But even if correct, the majority's view would not provide an adequate resolution to this suit. For criminal investigations, whether in good or bad faith, represent only one of the myriad subjects of Government investigations for which access to toll billing records is available. If notice or judicial scrutiny is required in noncriminal cases — and I think the majority must acknowledge, consistent with its rationale, that it is — then the Government must provide it in such cases unless it secures prior,ex partejudicial approval. The fact that ATT's policy purports to give notice in noncriminal investigations does not relieve the Government of its obligation toensurethat notice is provided or judicial approval secured, particularly where the record discloses so strikingly the practical inefficacy of ATT's policy in alerting subscribers to requests for their records.

[220] More basically, I must disagree with the majority thatBranzburgandStanford Dailyeliminate the need for any judicial consideration ofFirstAmendment values in a criminal investigation so long as the Government is not acting in bad faith. In his concurrence inBranzburgJustice Powell was quite explicit in his statement that balancing on a case-by-case basis, what he termed the "tried and traditional way of adjudicating such questions," was required where reporters claimed a privilege against responding to certain grand jury inquiries. His concern was not simply with whether the Government was seeking to harass a newsman; he also recognized that circumstances might arise in which a newsman "is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation," and that judicial balancing would be necessary to resolve such claims. Similarly, inStanford Dailythe Court did not hold that so long as the government was investigating a crime in good faithFirstAmendment values were irrelevant to the determination whether a warrant should issue; as Justice Powell emphasized, "[A] magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by theFirstAmendment" in determining whether the requirements for a warrant are met.436 U.S. at 570,98 S.Ct. at 1984.

[221] This is not to say that the Government's interest in investigating violations of criminal laws is not a substantial one, sufficiently compelling to allow the Government accessPage 1095to toll billing records. Indeed, as the majority so strongly emphasizes, this interest was accorded determinative weight inBranzburg.³³Nonetheless, these decisions do reflect a recognition that, even where a criminal investigation is involved, the function of judicial scrutiny — whether it be in judging motions to quash grand jury subpoenas, structuringFourthAmendment search warrants, or, I would add, reviewing Government demands for toll billing records — is not simply a screening function. Far from simply deciding whether an investigation is in good or bad faith, or a request correct or mistaken,³⁴the court is charged inFirstAmendment cases with ensuring that the Government action is justified in light of the constitutional interests at stakePage 1096and, if so justified, that it is tailored narrowly so as not to infringe unduly onFirstAmendment freedoms. "An order issued in the area ofFirstAmendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order. In this sensitive field, the State may not employ `means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.'Shelton v. Tucker,364 U.S. 479,488,81 S.Ct. 247,5 L.Ed.2d 231(1960). In other words, the order must be tailored as precisely as possible to the exact needs of the case."Carroll v. President Com'rsof Princess Anne,393 U.S. 175,183-184,89 S.Ct. 347,353,21 L.Ed. 325(1968).

[222] In this case, then, the task of judicial scrutiny is not only to determine whether a Government investigation is in good or bad faith and whether the Government's interest in securing an appellant's toll billing records outweighs the individual'sFirstAmendment interest in maintaining their confidentiality. Even where the Government investigation, whether civil or criminal, is being conducted in good faith, and even where the court has determined that the Government's interest outweighs the appellant's, the court still retains responsibility to ensure thatFirstAmendment rights are not restricted any more than is necessary to serve the Government interest.³⁵This means, first of all, that the scope of the Government request must be considered carefully and limited to the maximum extent possible: the Government's practice, as evidenced by the record in this case, of securing records for time periods or telephones unrelated to the investigation taking place cannot be justified. Nor can the Government's practice of permitting broad access to toll records which have been secured be permitted.³⁶Consistent with theFirstAmendment, there can be no justification for making records which have been secured on the basis of one investigation broadly available to other Government officials engaged in wholly unrelated tasks. A court order permitting access should take account of these considerations and should establish limits on both the scope of disclosure and official access to the records once they have been disclosed.

[223] IV. CONCLUSION

[224] The result reached by the majority today fails to provide any assurance whatever that the rights of appellants will not be violated by future disclosures — either because those disclosures are broader than is necessary to serve the Government interest or because they are wholly unjustified by the investigation involved. Under the majority's solution appellants are not entitled to prior judicial scrutiny unless and until they are able to meet the difficult if not impossible burden of establishing to a court that they are in imminent danger of having their records disclosed as part of a secret bad faith Government investigation undertaken to harass them. While I agree that any individual who can meet this burden should have recourse to the courts, the appropriate remedy in such cases is not an order that the individual receive notice prior to the constitutional violation, but rather an injunction prohibiting the Government official in question from violation his rights. Every individual has a right to be free of bad faith Government harassment, and one need not invoke theFirstAmendment to protect this right.

[225] Appellants here, however, are not seeking equitable relief to remedy past violations or deter imminent ones. The harms of the past cannot be undone, and those of the future cannot be predicted with the accuracy that the majority's theory would seem to necessitate. What appellants do seek is a declaration that, in the circumstances ofPage 1097this case, judicial scrutiny is available to them to protect theirFirstAmendment rights.

[226] Without attempting in the abstract to apply constitutional standards to classify comprehensively those situations in which disclosure would or would not be appropriate, I think it clear that the record before us contains admitted instances of mistaken or abusive requests where the reporter's interest might well have been found by a court to be weighty enough to foreclose or limit disclosure. While I join with the Government and ATT in hoping that such mistakes and abuses have permanently ceased, we should not — in view of the record in this case and the lessons of recent years — so trust to the good faith of all that we ignore the need for continuing judicial safeguards to ensure a free and vigorous press. For as the Supreme Court has pointed out in a related context: "History abundantly documents the tendency of Government — however benevolent and benign its motives — to view with suspicion those who most fervently dispute its policies."United States v. United States District Court (Keith), supra,407 U.S. at 314,92 S.Ct. at 2135. The press, in performing its constitutionally protected functions, may clearly be subject to such suspicion.

[227] In reaching the conclusion that appellants are entitled to judicial safeguards, I do not suggest that journalists generally enjoy greaterFirstAmendment freedoms than the public. The people's right to know is primary. But the function of the journalist in our society is to assist in informing the public — honestly and fairly. And that high calling is diminished when Government, however well intentioned, secretly jeopardizes the journalists' sources of information without prior judicial approval.

[228] I respectfully dissent.

The text continues — open the document to read the rest.

Citator

[3] A.The Records in Question and Their Usefulness in LawEnforcement

[9] B.Limitations on Disclosure Under the ATT Policy

[15] C.Impact on Journalists of Toll-Record Subpoenas Prior tothe New Policy

[19] D.Impact on Journalists of Toll-Record Subpoenas After theNew Policy

[50] A.Plaintiffs' "Balancing" Theory

[52] 1.No Abridgment of Any Special Journalistic Right orPrivilege by Good Faith Subpoenas

[53] a.Relationship ofFirstAmendment to Good FaithInvestigation

[72] b.Relationship ofFirst,Fourth, andFifthAmendments76

[96] 2.Case-by-Case Judicial Balancing—an Unprecedented,Unnecessary, and Unworkable Remedy

[109] B.Plaintiffs' "Screening" Theory.

[111] 1.Abridgment ofFirstAmendment Rights by Bad FaithSubpoenas

[115] 2.Prior Judicial Screening—an Equitable RemedyUnjustified Factually on this Summary Judgment Record

[143] C.Summary

[178] A.TheFirstAmendment Interest in Newsgathering

[190] B.Procedural Protections Under theFirstAmendment

[198] C.TheFirstAmendment Balance

[202] 1.The Scope of the Intrusion

[207] 2.The Governmental Interest

[72] b.Relationship ofFirst,Fourth, andFifthAmendments⁷⁶