BOB GARFIELD:
This week, The New York Times, in its effort to protect confidential sources it deems necessary in accomplishing journalism, got another show of no support from the Supreme Court. This long story began five years ago, some time after September 11th, when federal investigators began looking into whether the Holy Land Foundation and the Global Relief Foundation had any connection to terrorist organizations. Both are U.S.-based Islamic charities.

Not long into the investigation, the organizations received calls from The New York Times. The Times had learned that the organizations’ assets were going to be frozen, and the reporters were looking for details.

It turned out though that the organizations didn’t know that their assets were going to be frozen, or that they were under investigation. The New York Times had exposed the government’s plans. Uh-oh!

Then another investigation began, this one into who told New York Times’ reporters Judith Miller and Phillip Shenon about the investigations. Special Prosecutor Patrick Fitzgerald set out to find the leak and in so doing, wanted to see the reporters’ phone records. The Times said no, and the matter has been back and forth ever since, until this week when the Supreme Court weighed in.

Here to explain the ruling is lawyer and law professor Jonathan Turley. Jonathan, welcome back to OTM.

JONATHAN TURLEY:
Thanks, Bob.

BOB GARFIELD:
What did the Supreme Court decide this week?

JONATHAN TURLEY:
The Supreme Court simply decided not to intervene. They declined to get involved in the case, but that’s still a loss for The New York Times, because they came to the court as the losing party.

So it left them in a rather unfortunate position. The Court of Appeals in this case had ruled two to one that, indeed, the prosecutors could get these phone records, even though they represent the really heart of journalistic privilege.

BOB GARFIELD:
I’m curious about the Appellate Court decision. How did it justify what would seem on its face to be a clear cut violation of First Amendment freedoms?

JONATHAN TURLEY:
Well, Judge Winter, who wrote the opinion, has some language in there that should concern most people who write for a living. And that is, the court does not believe that learning about what he called imminent law enforcement targets, quote, “is an activity essential to journalism”.

Well, if you read that line on its face, then virtually all the major stories that led to major reforms in this country would have nothing to do with journalism, or at least protected journalism.

BOB GARFIELD:
Other than this latest round in the court case, what has The Times lost here?

JONATHAN TURLEY:
Well, what The Times has lost is pretty significant. If they has simply gone after the reporters and just dragged them into court and said tell us what you know, they would have done the right thing, what all good journalists do. They would have refused, even if they had to go to jail.

But here they circumvented that. They went to get the phone records themselves, and that creates a real ominous potential for all journalists, that – how much can you really guarantee confidentiality when you know, according to this case, that they can simply go to your telephone company and grab these records?

Now in most states, journalists are protected under what are called shield laws. What is notable is that the Congress has refused to pass a federal shield law, and what really concerns me is that there are a great number of people right now on Capitol Hill seeking reforms in the new Congress.

I’ve been working a lot on Capitol Hill in the last couple of weeks. The only group I haven’t seen are representatives of the media, that you’ve got civil libertarians, and you’ve got people involved in ethics reform, and they’re all talking and trying to work together to get these reforms in, in the 110th Congress. Nobody’s talking about a federal shield law. And as usual, it’s just [LAUGHS] that reporters make really horrible advocates for themselves.

BOB GARFIELD:
I want to ask you about a parallel story which emerged this week and that is the Justice Department announcing an investigation into ways in which justice was involved in NSA’s warrantless wiretap program that came to light a year ago in The New York Times. Tell me why these issues intertwine.

JONATHAN TURLEY:
Well, they are very much related, because the NSA story is an example of how the media really did function in this case, the way the Framers thought it would, as a fail safe when all other constitutional checks and balances have failed.

And that’s what we’ve seen here, that Congress was conducting absolutely no oversight. Nothing was done, not even a hearing was held. So it was up to the media to bring this to light.

Now the fact that we’re only now having the administration yield to its own internal watch dogs shows the danger of stripping journalists of the protections they can give of confidentiality to sources, that if it were not for confidential sources, if it were not for The New York Times, we would not know about a program that many people, including myself, believe is criminal in nature, that actually was based upon the commission of crimes by the President.

BOB GARFIELD:
All right, Jonathan. Thank you once again.

JONATHAN TURLEY:
Thanks, Bob.

BOB GARFIELD:
Jonathan Turley is a law professor at George Washington School of Law.