SW Legal studies in Business

No First Amendment Right to Inspect Wiretap Documents

Appeals court held that a newspaper did not have a First Amendment right of access to see materials related to wiretaps used by investigators in a criminal matter. The courts must balance the public right of access to such materials against the government’s need to protect them.

Topic Constitutional Law
Key Words

First Amendment; Right of Access; Disclosure; Wiretap

C A S E   S U M M A R Y

The government charged four persons with running a prostitution ring. The governor of New York, Elliot Spitzer, was identified as a client. When the news broke, the media wanted more information. Learning that the FBI had used wiretaps on cell phones, the New York Times requested access to the records of the wiretaps. Each wiretap was approved by a federal judge and placed under judicial seal. Most wiretap orders and applications are unsealed during criminal proceedings. In this case, because the four people charged waived indictment and pleaded guilty, the wiretap materials remained under seal. The Times applied to the court to unseal the wiretap applications claiming a common law right of access to judicial records and a First Amendment right to access the records. The government opposed unsealing wiretap materials on the grounds that they are only to be disclosed for “good cause,” and that a journalistic interest did not meet that standard. The district court granted the Times’ request. The government appealed.


Reversed. There is a qualified common law right to inspect and copy public records, including judicial documents. Courts administer this by balancing the government’s interest in confidentiality and privacy against the public’s interest in inspection. Here there is good reason for the information to remain under seal. A newspaper has no First Amendment right to access sealed wiretap applications and related materials. The Omnibus Crime Control and Safe Street Act (1968) expressly created wiretap rules that protect them from disclosure unless one is an aggrieved person, such as a defendant, who can satisfy the good cause requirement for disclosure.


In the Matter of the Application of the New York Times Company, ---F.3d--- (2009 WL 2411768, 2nd Cir., 2009)

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