Plaintiffs in this action are two newspaper-publishing corporations;1 twelve individual journalists;2 and 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 ("AT& T") and the Chesapeake and Potomac Telephone Company ("C & P"). Plaintiffs brought suit in the District Court for declaratory and injunctive relief, claiming that the First and Fourth Amendments require that prior notice be provided to them before defendants turn over their long distance 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.

A. The Records in Question and Their Usefulness in Law Enforcement

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

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

The toll-call records are useful investigative tools 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 reflect Only long distance calls Charged to the subscriber's number. Thus, they cannot be used to trace calls made to or from the subscriber's telephone but charged to some other number. Moreover, toll records are not 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.

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.7 Law 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

Defendant AT&T and the associated companies of the Bell Telephone System operate a nationwide telecommunications network. Defendant C & P is an associated company of the Bell System, providing telephone services for the District of Columbia. AT&T 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.

B. Limitations on Disclosure Under the AT&T Policy

Before 1974 there was no uniform policy within the Bell System governing the release of company billing records to law enforcement officials. In March 1974, however, AT&T adopted throughout the System a formal policy on the release of such records. This policy, which is currently in effect, has three important provisions.

First, the policy Prohibits the release of toll-billing records in the absence of a subpoena or summons, valid on its face, issued under the authority of a statute, court, or legislative body.9

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

Third, the policy requires that subscribers whose toll records have been subpoenaed in Felony investigations be similarly notified, Unless the subpoena is accompanied by a written certification stating (1) that the subpoena or summons was issued pursuant to an Official investigation of a suspected felony or an official legislative investigation, and (2) that Notification to the subscriber could impede the investigation. Such a certification is effective for 90 days, and must be renewed by further certifications in writing for successive 90-day periods. When a 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

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

C. Impact on Journalists of Toll-Record Subpoenas Prior to the New Policy

In December 1973 plaintiffs wrote AT&T demanding assurances that their toll-billing records and those of other journalists would not be released to government investigative agencies without prior notice to the journalists concerned.13 Plaintiffs also demanded from AT&T information concerning any past instances of Government access to their toll-billing records.14 Although AT&T did provide this latter information, it refused to give plaintiffs the assurances they demanded.

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 their First and Fourth Amendment rights.15 The 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.

The record developed by plaintiffs in the course of a massive discovery effort reveals that from January 1971 to March 1974, before AT&T's new policy went into effect, the Government issued Approximately XX-XXX-XXX,000 toll-record subpoenas.16 This reflects the importance of these records as a tool in the investigation of modern crime. The record further reveals, during this same period, Only five instances in which the toll-call records of journalists were requested. This reflects the relative impact of this investigative method on journalists. Four of these cases involved grand jury subpoenas; one involved an Internal Revenue Service summons. In each of these five instances, the toll-call records were sought in connection with a felony investigation. One subpoena was issued in the course of an investigation into the suspected theft of Government documents and the receipt of stolen documents, violations of 18 U.S.C. § 641;17 three of the subpoenas were issued in furtherance of investigations into possible violations of the espionage laws of the United States, 18 U.S.C. §§ 792-798;18 and one 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 of 26 U.S.C. § 7213.19

D. Impact on Journalists of Toll-Record Subpoenas After the New Policy

Since AT&T adopted its new toll-record policy in March 1974 over four years ago Approximately 1XX-XXX-XXX,000 toll-record subpoenas have been issued by the Government in criminal investigations. The record reflects No instance during this period in which the toll records of a journalist have been sought. Moreover, there is no clear indication in the record that, under AT&T's new policy, a journalist would not receive timely notice of any future subpoena directed at his records.

The dissent has attempted to expand the issues 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 is Pure speculation, and the propriety of any such practice, if it does exist, is simply not raised in the case at bar. The record indicates only that certain plaintiffs have had their toll records subpoenaed in felony investigations. Indeed, we do not find any evidence in the record that it is Government practice to subpoena toll-call records in non-law enforcement matters. Not only does the record fail to reveal Any instance before or after AT&T'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 which Any person's toll-call records have been subpoenaed in connection with a non-law enforcement proceeding. The record evidence strongly suggests that virtually All toll-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 that Only four agencies have actually subpoenaed toll records the Department of Justice, the Internal Revenue Service, the Securities Exchange Commission, and the Department of the Treasury and these subpoenas appear to have been issued in furtherance of law enforcement investigations.20

Thus, the central issue in this case is Not whether plaintiffs are entitled to prior notice of subpoenas issued in civil or administrative proceedings, but rather whether plaintiffs are entitled to prior notice of subpoenas issued in the course of criminal investigations.

On 17 August 1976 the District Court granted defendants' motion for summary judgment, rejecting plaintiffs' First as well as their Fourth Amendment claims. This appeal followed.

Before proceeding to the merits of plaintiffs' claims, we confront, in the case of AT&T, the threshold question of "state action." Plaintiffs have maintained, and AT&T has vigorously denied,21 that the latter's cooperation with the Government in unannounced releases of plaintiffs' toll-billing records has so enmeshed AT&T 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.

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 AT&T's is the consequence feared, by reporter and confidential source alike. Governmental action thus pervades any clandestine turnover to a degree more than ample to call for constitutional scrutiny.

It is evident, too, that AT&T's role in this controversial scenario, however collaborative, is but complementary and secondary to that of the Government. As the Government is a defendant in the case, any relief that plaintiffs 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, were Ex parte judicial 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

Moreover, in the event that injunctive relief eventuates in this litigation, either as an original matter or to effectuate a declaratory judgment,23 an order directed against the Government will bind AT&T 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

It is perfectly obvious that the Government cannot gain access to any toll-billing records save through AT&T. By silently delivering those records at the Government's behest, AT&T is plainly in "active concert or participation" with the Government in the activity precipitating plaintiffs' grievance.25 And if AT&T thus aided the breach of a decree enjoining the Government's unannounced and unapproved acquisition of particular toll-billing records, it would subject itself to appropriate sanctions.26 It matters not that absent a cause of action against the Government itself AT&T might entirely avoid plaintiffs' suit27 a matter we do not address. AT&T'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.

Because, then, plaintiffs can secure directly from the Government any injunctive relief obtainable from AT&T and since obedience to any injunction running against the Government can be exacted from AT&T on a nonconstitutional basis,28 we perceive no compulsion to ascertain whether AT&T's conduct is constitutionally the equivalent of governmental action for purposes of this case. We adhere, then, to the settled principle that courts are not to indulge in constitutional rulings absent "strict adjudicative necessity,"29 which we are unable to discern here.30

Plaintiffs contend that AT&T's policy in certain felony cases of releasing toll-call records to investigators without prior notice to the subscriber violates their Fourth Amendment rights.31 This claim clearly lacks any merit.

The Fourth Amendment strikes a balance between the individual citizen's interest in conducting certain affairs in private and the general public's interest in subjecting possible criminal activity to intensive investigation. It strikes this balance by securing for each individual a private enclave a "zone" bounded by the individual's own reasonable expectations of privacy.32 So long as the individual acts within this "zone of privacy", his activities are shielded from unreasonable Government investigation;33 any attempt by the Government to search for or seize evidence from Within this zone must be based on "probable cause" and usually must be preceded by a judicial determination that "probable cause" exists.34 However, the protections afforded the privacy interests of the individual by the Fourth Amendment are necessarily limited by the public's interest in effective law enforcement; the Fourth Amendment does not insulate All personal activity from official scrutiny. Just as it creates "zones of privacy", it also demarcates appropriate areas for investigation, in the sense that it allows the Government relatively free access to evidence located Outside the individual's "zone of privacy."35

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.36 In 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 individual knowingly exposes his activities to third parties, he surrenders Fourth Amendment protections, and, if the Government is subsequently called upon to investigate his activities for possible violations of the law, it is free to seek out these third parties, to inspect their records, and to probe their recollections for evidence.37

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

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 business records of a third party and, therefore, has no interest protected by the Fourth Amendment in such records.38 Accordingly, it has been consistently held by the Supreme Court39 and the Courts of Appeals40 that a person has no Fourth Amendment basis for challenging subpoenas directed at the business records of a third party, and, hence, has no right to notice of such subpoenas.

In the most recent Supreme Court case of United States v. Miller,41 the Treasury Department presented to banks at which respondent maintained accounts grand jury subpoenas requiring the production of "all records of (respondent's) accounts." The banks promptly 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 which held that the Government had violated respondents' Fourth Amendment rights. The Supreme Court reversed the Court of Appeals, holding that the District Court had properly denied respondent's motion to suppress since respondent possessed no Fourth Amendment interest in the bank documents.42 The Court further concluded that, Since respondent had no interest that could be vindicated by a challenge to the subpoena, respondent had no right to notice of the subpoenas.43

The Court's decision highlights the principle that "what a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection":44

Respondent urges that he has a Fourth Amendment 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 in Katz the Court . . . stressed that "(w)hat a person knowingly exposes to the public . . . is not a subject of Fourth Amendment 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 his affairs to another, that the information will be conveyed by that person to the government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.

Since no Fourth Amendment interests of the 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

The general rule that a person has no Fourth Amendment basis for challenging subpoenas directed at the business records of third parties has been directly applied to toll-billing records maintained by telephone companies.46 A 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 no Fourth Amendment 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.

Accordingly, in upholding a felony conviction based in part on evidence derived from toll-call records, the Ninth Circuit in United States v. Fithian47 stated:

The introduction into evidence of telephone company records of calls from appellant's residence did not violate his Fourth Amendment rights. The expectation of privacy attaching to telephone conversations relates to the content of the conversations themselves and not to the fact that a conversation took place. No one justifiably could expect that the fact that a particular call was placed will remain his private affair when business records necessarily must contain this information.48

The courts have invariably taken this position.49 These precedents soundly dispose of plaintiffs' Fourth Amendment claim.

Plaintiffs contend that, as journalists, they are entitled under the First Amendment to prior notice of toll-call-record subpoenas issued in the course of felony investigations, Even if citizens in general have no such right.51 Plaintiffs base this claim on two separate and distinct theories.

The first theory relates to the impact of Good faith toll-call-record subpoenas on plaintiffs' First Amendment rights and the need for judicial Balancing before such records are released to Government investigators. Plaintiffs develop this theory as follows:

(1) The First Amendment guarantees journalists the freedom to gather information from clandestine sources.

(2) Because toll-call records may disclose the identity of a clandestine source, this freedom is abridged Whenever the Government gains access to a journalist's toll records, even where access is gained in the course of a Good faith felony investigation.

(3) In order to determine whether this infringement on First Amendment rights is justified, the Government's investigation "interests" must be judicially Balanced in each case against the journalist's First Amendment "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 judicial Balancing before the records are released.

The second theory relates to the impact of Bad faith toll-call-record subpoenas on plaintiffs' First Amendment rights and the need for judicial Screening before such records are released to Government investigators. 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) Such Bad faith subpoenas abridge journalists' First Amendment right to gather information from clandestine sources.

(3) In order to protect journalists from such infringements in the future, it is necessary for the Judiciary to superintend investigations of journalists in order to Screen out bad faith subpoenas.

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

Common to both theories is the proposition that journalists have a right under the First Amendment to gather information from clandestine sources. However, there is a clear distinction between the two theories, regarding both the type of Government action which supposedly abridges this right and the kind of judicial action necessary to remedy the abridgment. According to the first theory, plaintiffs' rights are abridged by Any and all toll-call-record subpoenas, and the appropriate remedy is a judicial Balancing of legitimate interests of the Government against those of the journalist. According to the second theory, plaintiffs' rights are abridged by Bad faith toll-call-record subpoenas and the appropriate remedy is a judicial Screening of all subpoenas in order to winnow those issued for illegitimate reasons.52 Each theory involves separate and distinct issues.

Unfortunately, plaintiffs have quite confounded the two, repeatedly carrying over considerations relevant to one in an effort to bolster the other. This totally ignores the principle the Supreme Court specifically noted in Branzburg v. Hayes53 that First Amendment challenges to Good faith investigative action and First Amendment challenges to Bad faith investigative action "pose wholly different issues for resolution."54 This opinion follows the Supreme Court, analyzing each of plaintiffs' theories separately.

Before proceeding, however, it is important to note that the dissent apparently does not grasp the 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 pronouncement In 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 relevant and can be left to future resolution. Yet, this is placing the cart before the horse. The existence of a right to prior notice is predicated precisely on the supposed need for case-by-case judicial balancing or screening. Prior notice is merely a procedural device, the only function of which is to trigger judicial supervision of subpoenas supervision that necessarily involves either the balancing or screening functions of the court.

Accordingly, if it can be demonstrated that there is No need for case-by-case balancing and No warrant for case-by-case screening, then the rationale for providing prior notice evanesces. We conclude first, that there is no need for case-by-case balancing in criminal investigations and, second, that no justification for case-by-case screening has been made thus far in this case.

In treating plaintiffs' first theory, two issues must be addressed: first, whether Government access to toll-call records in the course of a Good faith felony investigation actually "Abridges " a "Freedom " guaranteed plaintiffs under the First Amendment; and second, if so, whether prior Judicial balancing on a case-by-case basis is an appropriate judicial response.

1. No Abridgment of Any Special Journalistic Right or Privilege by Good Faith Subpoenas

a. Relationship of First Amendment to Good Faith Investigation

Plaintiffs contend that the First Amendment 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.55 They assert that these rights are abridged Whenever the Government gains access to toll-call records, or presumably to any other third-party information which might disclose the identity of their secret sources.56 Thus, plaintiffs, who have neither a property nor a privacy interest in the business records of the defendant telephone companies,57 claim 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 during Good faith felony investigations.

The enormity of this claim can best be comprehended by considering the following fact situation which, though hypothetical, is patterned after the five actual instances of toll-call-record subpoenas presented in this case.

Suppose that an employee in the Internal Revenue Service's regional office in Atlanta, Georgia, decides that he is going to make public embarrassing information from the income tax return of a highly prominent citizen. He knows that it is a felony for an IRS employee to disclose tax return information to an unauthorized person,58 and that it is also a felony for any person to whom such information has been disclosed thereafter to publish it.59 Therefore, 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 by one 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.

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.

There are two ways in which this can be done. The most direct way is to have the grand jury subpoena the journalist and compel him to disclose his source. The Supreme Court in Branzburg v. Hayes60 expressly held that this may be done that the journalist may not refuse to disclose his source. According to the Court, the journalist may be Required to testify in any and all good faith criminal investigations there is no case-by-case consideration given to a claim of privilege. Good faith investigation interests always override a journalist's interest in protecting his source.61

There is also a more indirect way for the investigators to proceed. They can seek out third-party information connecting the journalist with an employee in the Atlanta office. Here, There are at least five sets of third-party business records which, to varying degrees, provide 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.

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 supposed First Amendment 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.

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.

Branzburg v. Hayes is dispositive on the first point. In Branzburg journalists had established confidential relationships with certain sources. Through grand jury subpoenas Ad 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 the First Amendment gave rise to a testimonial privilege, that is, A right to protect the secrecy of their sources. The journalists contended, just as plaintiffs here contend, that if journalists were compelled to identify their sources, informants would refuse to furnish information in the future, and that this would interfere with the free flow of information protected by the First Amendment.

The Court expressly rejected this claim, holding that journalists had no special First Amendment right to maintain the secrecy of their sources in the face of a Good faith felony investigation.62 The 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 the First Amendment right to gather news.63 The Court further stated that "(i)t is clear that the First Amendment does not invalidate every incidental burdening of the press . . .,"64 and 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

Branzburg involved good faith subpoenas Ad testificandum directed 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 resist Good faith subpoenas Duces tecum directed at a third-party's business records. Not only is the logic inescapable, but, in fact, the Court in Branzburg did 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

Thus, both logic and the Court's plain statement clearly refute plaintiffs' claim that "journalists" have a special right to resist good faith subpoenas directed at third-party records.

There is another reason that plaintiffs' reliance on Branzburg v. Hayes, for the principle that journalists have a right to protect the secrecy of their sources from identification by third parties, is so ironic. The journalists in Branzburg did not assert an absolute testimonial privilege, but asserted, Inter alia, that the Government should be Required to seek out Third party sources of evidence before being permitted to compel the journalists themselves to identify their sources. In other words, the journalists in Branzburg sought protection only from being themselves compelled to disclose their sources; they did not claim any right to prevent third parties from identifying their sources; indeed, they insisted that the Government be forced to seek out third parties from whom they could obtain the necessary evidence. It is curious, then, that plaintiffs here rely on Branzburg for the proposition that the First Amendment entitles them to reach out and suppress the testimony of third parties whom they have injudiciously made witting of their secrets.67

It is thus clear from Branzburg and related cases that the freedom to gather information guaranteed by the First Amendment is the freedom to gather information Subject to the general and incidental burdens that arise from good faith enforcement of otherwise valid criminal and civil laws that are not themselves solely directed at curtailing the free flow of information.68 The broad scope of acceptable government investigation, so necessary to the secure enjoyment of All liberties, unavoidably places a burden on All citizens. 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. The First Amendment does not guarantee plaintiff "journalists," or other citizens, a special right to immunize themselves from good faith investigation simply because they may be engaged in gathering information. Thus, the Government's good faith inspection of defendant telephone companies' toll call records does not infringe on plaintiffs' First Amendment rights, because that Amendment guarantees no freedom from such investigation.

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

As the Supreme Court stated in Laird 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 some Other and 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.

In the instant case, the Government action challenged by plaintiffs is the mere gathering of evidence from third parties. As the Supreme Court expressly stated in Branzburg, such investigation imposes no restrictions, prior restraint, or sanctions on journalists' information-gathering.74 Furthermore, in this case, unlike Branzburg, there is no effort to compel the journalists themselves to disclose the identity of their sources. Plaintiffs in this case are neither presently or prospectively subject to "regulation, proscription or compulsion" as a result of the Government action they here challenge. Consequently, it cannot be asserted that Government access to defendants' toll-call records "abridges" plaintiffs' First Amendment news-gathering rights.

In sum, then, the two propositions underlying plaintiffs' first theory are erroneous. The First Amendment does not guarantee journalists the right to preserve the secrecy of their sources in the face of Good faith criminal 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 no First Amendment right to notice of subpoenas directed at such records.75 In other words, the First Amendment does not guarantee a journalist, or any other citizen, the freedom to collect information immune from Good faith criminal investigation by means which accord with Fourth and Fifth Amendment protections. Nor does it insulate a journalist, or any other citizen, from the general and subjective inhibitions that naturally arise from the prospect of such investigation inhibitions to which all citizens are subject in every field of endeavor.

b. Relationship of First, Fourth, and Fifth Amendments76

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 of First, Fourth and Fifth Amendment protections. Essentially, plaintiffs contend that particular Good faith investigative actions inhibit, and thereby infringe upon, their information-gathering activities. Specifically, plaintiffs complain that the investigative action has "intruded into", "invaded" or "penetrated" activity which is secret or private.

As already demonstrated, to the extent plaintiffs have exposed their activities to third parties they had no protectable privacy interests in them under the Fourth Amendment.77 The crux of plaintiffs' argument, then, is that they have a right to establish relationships in secret under circumstances in which the Fourth Amendment ensures no secrecy and that they have a right to engage in furtive action free from investigative scrutiny within an arena ordinarily open to such scrutiny. In short, plaintiffs claim that the zone of privacy guaranteed them by the Fourth and Fifth Amendments does not give them adequate privacy within which to conduct clandestine collection and that they, apart from other citizens, must have a broader zone of privacy.

The question thus presented is this: Does the First Amendment afford plaintiffs this extra margin of privacy by imposing substantive or procedural limitations on Good faith criminal investigative action above and beyond the limitations imposed by the Fourth and Fifth Amendments? I believe the answer must be no.

The Supreme Court has repeatedly emphasized that one of the main reasons for adoption of the Fourth Amendment was to provide citizens with the privacy protection necessary for secure enjoyment of First Amendment liberties.78 First Amendment values permeate the Fourth Amendment. To a somewhat lesser extent, the same can be said of the Fifth Amendment.79 In my view, the guarantees of the Fourth and Fifth Amendments achieve their purpose and provide every individual with sufficient protection against good faith investigative action for the full enjoyment of his First Amendment rights of expression. To the extent an individual insists that he must shield himself from the prospect of good faith investigation and operate in secrecy in order to exercise effectively particular First Amendment liberties, he must find that shield and establish that secrecy within the framework of Fourth and Fifth Amendment protections. This is not to say that the First Amendment never gives rise to any privacy-type interests apart from those secured by the Fourth and Fifth Amendments. It does mean, however, that such interests are overridden In criminal cases by the public's interest in effective law enforcement investigation at least insofar as they go beyond protections already afforded by the Fourth and Fifth Amendments.

In several cases the Supreme Court has dealt with situations in which law enforcement investigative action undertaken in Good faith has had an impact on First Amendment activity.80 In these cases involving "a convergence of First and Fourth Amendment values", the Court has held that First Amendment interests are to be safeguarded by strict adherence to Fourth Amendment standards.81 Significantly, the Court has not concluded that the First Amendment interests themselves give rise to Additional protections against Good faith investigative action above and beyond those afforded by the Fourth Amendment.82 Nor has the Court concluded that persons engaging in certain types of First Amendment activity have Broader Fourth Amendment rights than other citizens.

The proposition that the First Amendment offers no procedural or substantive protections against good faith criminal investigative activity beyond that afforded by the Fourth and Fifth Amendments is directly supported by the Supreme Court's recent decision in Zurcher v. Stanford Daily.83 Indeed, 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 under 42 U.S.C. § 1983 against the police. The complaint alleged that the search of the Daily's office had deprived the newsmen under color of state law of rights secured them by the First, Fourth, and Fourteenth Amendments. The journalists asserted, Inter alia, that where an innocent object of a third-party search is a newspaper, the First Amendment requires that evidence in the newspaper's possession be obtained by a subpoena Duces tecum rather than by a search warrant unless the police make a clear showing that the evidence would be destroyed. The district court granted the journalists declaratory relief, and the court of appeals affirmed. The Supreme Court reversed.

Significantly, the Supreme Court's decision analyzes the protections available to the journalists entirely within the framework of the Fourth Amendment. Observing that the Fourth Amendment 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 the First Amendment, the requirements of the Fourth Amendment must be applied with 'scrupulous exactitude' ".84 Thus, the Court held that the protections to be afforded the journalists were to be found in rigorous application of Fourth Amendment standards. Implicit in this decision is the conclusion that, in this type of case, the existence of First Amendment "interests" does not give rise to any substantive or procedural protections above and beyond those afforded by the Fourth Amendment. The Court stated:

Neither the Fourth Amendment nor the cases requiring consideration of First Amendment values in issuing search warrants, however, call for imposing the regime ordered by the District Court. Aware of the long struggle between Crown and press and 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 when First Amendment interests would be endangered by the search.85

Justice Powell's concurring opinion is even more explicit:

If the Framers had believed that the press was entitled to a special procedure, not available to others, when government authorities required evidence in its possession, one would have expected the terms of the Fourth Amendment to reflect that belief. As the opinion of the Court points out, the struggle from which the Fourth Amendment emerged was that between Crown and press. The Framers were painfully aware of that history, and their response to it was the Fourth Amendment. Hence, there is every reason to believe that the usual procedures contemplated by the Fourth Amendment do indeed apply to the press, as to every other person.

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

Circuit court cases also support the proposition that the First Amendment affords no procedural or substantive protection against Good faith criminal investigative activity beyond that afforded by the Fourth and Fifth Amendments. 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 same information concerning mail communication as toll-call record inspections provide concerning long distance telephone communication. Criminal defendants have attempted to suppress evidence derived from mail covers on the grounds that such warrantless mail surveillance violated their Fourth Amendment rights.

The courts have uniformly rejected this argument.87 Just as courts have held that a person's expectations of privacy concerning telephone communication attach only to the Contents of the conversation and not to the fact the communication was made, so also the courts have held that a person may reasonably expect privacy only with respect to the contents of an envelope and Not with 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 the Fourth Amendment, they nevertheless violate the First Amendment by "chilling" free communication through the mails. There is no doubt that communication through the mails is a First Amendment right guaranteed by both the free speech and press guarantees88 and is "almost as much a part of free speech as the right to use our tongues."89 Nevertheless, the courts have held that "mail covers" violate no First Amendment right.90

The principle that the First Amendment offers no procedural or substantive protection from Good faith criminal investigation beyond that afforded by the Fourth and Fifth Amendments is also reflected in cases involving informants and undercover agents.91 Law enforcement investigators regularly collect information from informants and undercover agents concerning the activities, conversations, and associations of individuals and groups.92 No 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. In Lopez v. United States,93 defendant 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 threatened First Amendment 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."94 Implicitly 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.

Similarly, in United States v. White,95 Justice Douglas argued that a criminal suspect's First Amendment rights were violated when his conversations with an informant were electronically monitored by Government agents through a transmitter installed on the informant:

Monitoring, if prevalent, certainly kills free discourse and spontaneous utterances. Free discourse a First Amendment 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

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

Finally, cases involving physical surveillance support the principle that the First Amendment affords no protection against Good faith criminal investigative activity beyond that afforded by the Fourth and Fifth Amendments. Courts have held that physical surveillance consistent with Fourth Amendment protections and in connection with a bona fide law enforcement investigation does not violate First Amendment rights, even though it may be directed at communicative or associative activities and even though it may inhibit such activities.99 Thus, in Oaks v. United States,100 the 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 his First Amendment 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 the First and Fifth Amendments is involved.101

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

Plaintiffs in this case insist that the mere fact of a relationship between themselves and certain sources must be secret. If this is so, then plaintiffs and their sources have the burden of establishing that secrecy within the limits of Fourth and Fifth Amendment protections. This may be difficult, but it is not impossible. All citizens when they choose to act surreptitiously are put to some inconvenience; they must lower their voices, put little or nothing in writing, speak and meet outside the presence of third parties; these simple precautions are commonly used, whether the ends be lofty or evil. Plaintiffs are no exception simply because they are "journalists."

The plaintiffs' and the dissent's position is that the First Amendment Does afford additional protections against Good faith criminal investigation beyond those provided by the Fourth and Fifth Amendment. In skeletal form, their position is that when particular investigative action "implicates" First Amendment activities, then its utility must be judicially balanced against the First Amendment "interests" it may affect Before it may be put into effect. However, it is clear from a moment's reflection that this position is wholly untenable.

In Katz v. United States, the Supreme Court observed that All investigative action intrudes upon privacy to some extent.102 The same can be said for the relationship between investigation and First Amendment activity; that is, All investigative action affects or "implicates" First Amendment activity. After all, The First Amendment is not the personal preserve of "journalists." It covers almost all forms of expression; it covers associative activities; it covers religious activities. Each citizen has First Amendment rights and each one's rights are as precious as the other's. Every time law enforcement officers arrest an individual, they place restraints on First Amendment 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 on First Amendment rights? Each time law enforcement officers place a suspect under physical surveillance or make inquiries and collect information on a suspect, they "implicate" First Amendment rights. Does this mean that before the police can take this fundamental investigative action there must be a hearing at which the particular utility of these acts is judicially balanced against the First Amendment "interests" they may affect? Each time the Government solicits information from an informant or places an undercover agent it "implicates" First Amendment rights. Does this mean that before such action is taken there must be a hearing at which the Government's "interest" in taking these actions is judicially balanced against the First Amendment activities "implicated"? And each time the police obtain a warrant for more intrusive investigation, such as for wiretaps or searches, First Amendment rights are "implicated." Does this mean that In addition to determining the probable cause required by the Fourth Amendment the issuing magistrate must Also balance First Amendment interests? Of course, the practical consequence of such a regime would be the complete and absolute stultification of law enforcement.

If this is indeed what the First Amendment means, then I am surprised we have not heard of it sooner. Think of all those unfortunates in prison who would be free men today if the dissent had its way and if they but had the foresight to anticipate these plaintiffs and base their evidentiary challenges on First rather than Fourth Amendment grounds.

The only way in which plaintiffs and the dissent could avoid this Denouement is to limit these First Amendment protections only to Some individuals; or perhaps only to Some species of First Amendment activities; or perhaps only to Some individuals in Some activities. In other words, under plaintiffs' approach the courts would have to decide that certain individuals' First Amendment rights are more important than those of others, and that certain First Amendment activities are more important than others. Presumably, the more significant individuals and the more significant activities would have greater protection from good faith investigation.

How would this gradation be made without doing violence to the First Amendment itself? If the First Amendment protects "journalists" from third-party subpoenas, how about ministers, priests and rabbis? How about authors, teachers, social workers and publishers? How about labor unionites, Democrats, Republicans and sorority sisters? If the First Amendment shields "news gathering" from good faith investigation, how about other kinds of First Amendment activity? How about all forms of associational activity? Are the associational activities of organized crime shielded from good faith investigation? If the police issue third-party subpoenas for information bearing on the "membership" of a suspected organized crime "family," must prior notice be given the "family" so that it can challenge the subpoena in order to preserve the "confidentiality" of its members? Why dismiss this out of hand? Are there no genuine associational rights "implicated" in such a case?

In Branzburg, the Supreme Court recognized that it would be improper, as well as impracticable, to define the categories of persons entitled to insist on the 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

In sum, the approach urged by plaintiffs and the dissent must inevitably result in one of two consequences. Either all people at all times will have the First Amendment balancing protection against Good faith investigation, in which case law enforcement will be completely throttled. Or, certain people at certain times will 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" First Amendment claims. In my view, neither approach is acceptable, in theory or in practice.

2. Case-by-Case Judicial Balancing an Unprecedented, Unnecessary, and Unworkable Remedy

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

It is at this point that Plaintiffs' and the dissent's confusion between the balancing function of the court and its screening function becomes evident. Apparently the source of this confusion is a single paragraph in the Branzburg decision. The Court in Branzburg determined that Good faith criminal investigation interests Always override a journalist's interest in preserving the secrecy of his sources. The Court observed that there was no question but that the particular subpoenas in question were issued in Good faith and it held that the First Amendment offers No protection from such Good faith investigative efforts. The Court explicitly rejected a case-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 of Bad faith subpoenas on journalists' First Amendment rights:

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

By these comments, the Court was merely indicating that journalists would have an effective remedy if Bad faith harassing subpoenas were employed against them. The remedy suggested was a Screening remedy, And it was available on a case-by-case basis because the Court would necessarily be called upon to enforce the subpoenas on a case-by-case basis. Thus, the Court did not contemplate case-by-case Balancing at all, for if subpoenas were issued in bad faith, there would be no legitimate Government interest To balance against the journalist's interests; rather it would be a question of screening out bad faith subpoenas.107

The competing interests assertedly at stake in this case can easily be balanced and resolved once and for all. Indeed, if one reads Branzburg, as plaintiffs do, as 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, Branzburg dictates an outcome in favor of law-enforcement "interests."

In the first place, the burden placed on journalists by Branzburg is 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 of Branzburg. They can take every secrecy precaution and be as discrete as possible, and still be Directly compelled to disclose their secrets. In contrast, the real burden that the 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 the Branzburg rule.

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.108 More significantly, the plaintiffs' own affidavits indicate that sources generally are apprehensive about the circumspection of the journalists themselves, and cooperate only on the basis of The journalist's personal assurance of 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.

Finally, as the Branzburg Court pointed out, it is difficult to take seriously claims that toll-record subpoenas will appreciably constrict the flow of information to journalists.109 Journalists' records have been subject to such subpoenas for 50 years, and during this time, "the press has flourished"110 and so has its use of confidential sources.111 Indeed, 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".112 In the face of these considerations, if a balance must be struck, then it must be struck in favor of the general public's interest in effective law enforcement investigations.

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 in Branzburg was similarly requested to adopt a case-by-case balancing approach with respect to journalists' claims of testimonial privilege.113 The Court stated: "We are unwilling to embark the judiciary on a long and difficult journey to such an uncertain destination."114 The Court realized that administration of such a case-by-case approach "would present practical and conceptual difficulties of a high order."115

One problem, as the Court in Branzburg recognized, is that a case-by-case balancing approach will require courts to devise criteria for estimating the Relative exigency 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

A second problem is that a court will have to devise criteria for estimating the Relative importance of certain information-gathering activities.117 Are 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 of First Amendment rights.

Finally, these mystical distinctions and calculations would become even more obscure in the context of the Ex parte hearing suggested by the dissent. How will the court in an Ex parte hearing 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?

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.

B. Plaintiffs' "Screening" Theory.

In treating plaintiffs' second theory, two issues must be addressed: first, whether plaintiffs' First Amendment rights would be Abridged by defendant telephone companies' compliance with toll-call-record subpoenas issued in Bad faith as part of an effort to harass plaintiffs and interfere with their sources of information; and second, if so, whether Prior judicial screening of toll-call-record subpoenas is an appropriate remedy.