Quote of note:

"The reporters at issue relied upon the promise of confidentiality to gather information concerning issues of paramount national importance," Judge Sweet wrote, referring to Judith Miller and Philip Shenon, both of The Times. "The government has failed to demonstrate that the balance of competing interests weighs in its favor."

Good. Because you can't just flatly state reporters are immune to being investigated but you damn sure can't just turn them over reflexively.

Judge Blocks Inspection of Times Reporters' Phone Records
By ADAM LIPTAK

A federal prosecutor may not inspect the phone records of two New York Times reporters in an effort to learn their confidential sources, a federal judge in New York ruled yesterday.

The decision interpreted a 1972 ruling of the United States Supreme Court as providing broad First Amendment protections to reporters facing grand jury subpoenas.

That interpretation is at odds with a decision last week by a three-judge panel of the federal appeals court in Washington, which held that the 1972 ruling, in Branzburg v. Hayes, gave reporters almost no protection. In the latest decision, Judge Robert W. Sweet of the Federal District Court in Manhattan relied on decisions of the federal appeals court in New York.

The differing interpretations highlighted by yesterday's decision may make the Supreme Court more likely to review one of the cases. The justices often agree to hear appeals to resolve so-called circuit splits.

Judge Sweet wrote that the appeals court in New York, the United States Court of Appeals for the Second Circuit, had spoken clearly in similar cases. "The Second Circuit, based on Branzburg, has recognized a qualified First Amendment privilege," Judge Sweet wrote. The privilege, he said, "protects reporters from compelled disclosure of their confidential sources." But the privilege is not absolute, he continued; parties seeking to overcome it must show that the information sought is critical and cannot be obtained elsewhere.

Judge Sweet acknowledged that last week's decision, by the United States Court of Appeals for the District of Columbia Circuit, "flatly rejected" that interpretation of Branzburg.

Judge Sweet's opinion was 120 pages long, and much of it was devoted to describing what he said was the important role of confidential sources in news reporting.

"The reporters at issue relied upon the promise of confidentiality to gather information concerning issues of paramount national importance," Judge Sweet wrote, referring to Judith Miller and Philip Shenon, both of The Times. "The government has failed to demonstrate that the balance of competing interests weighs in its favor."

The prosecutor, Patrick J. Fitzgerald, the United States attorney in Chicago, had argued that he needed the records for a grand jury's investigation of government misconduct in the disclosure to the reporters of impending government actions against two Islamic charities.