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Editorial

The Bowe Bergdahl Case and Other Threats to the Press

Credit...MERTO/WILLEY

The cases against Sgt. Bowe Bergdahl, who is accused of being an Army deserter and is being prosecuted in military court, and Nasean Bonie, a former building superintendent in the Bronx who was recently convicted of killing a tenant, have little in common. But litigation stemming from both could set a dismal precedent for press freedoms by broadening the criteria under which prosecutors are allowed to obtain unpublished material gathered by journalists.

The case of Sergeant Bergdahl, whose ordeal as a Taliban hostage was the subject of Season 2 of the popular podcast “Serial,” has caused alarm among press freedom advocates ever since an Army prosecutor signaled early this year that he intended to issue a subpoena to obtain 25 hours of recorded phone conversations between Sergeant Bergdahl and the journalist Mark Boal.

The legal questions raised in Mr. Bonie’s case have received less attention. But that case represents a more imminent threat to freedom of the press. In that proceeding, a Manhattan appeals court backed a trial judge who ordered a reporter for News 12 the Bronx, a cable channel, to turn over unaired segments of an interview with Mr. Bonie. Unless that decision is overturned by the New York Court of Appeals, the state’s highest court, prosecutors will have greater authority to compel journalists to produce information gathered during the reporting process that was not published or broadcast.

That would put a dent in New York’s shield law for journalists, one of the strongest in the nation. It would have a chilling effect on news gathering, by routinely burdening journalists with subpoena requests. And it could create the damaging perception that news organizations are an investigative arm of the criminal justice system.

Under New York’s shield law, journalists have robust protections when it comes to information obtained from confidential sources. Litigants may seek records from journalists pertaining to nonconfidential sources only if they demonstrate that the information is “highly material and relevant” to a case, that it is “critical or necessary” to a legal claim or defense, and that it cannot be obtained from an alternative source.

In the Bonie case, the trial judge and an appeals court disregarded that high standard in ruling that prosecutors were entitled to unaired segments of the interview with Mr. Bonie. Mr. Bonie went to trial in June before the fight over access to the interview was settled and the unaired footage was never admitted into evidence.

The fact that Mr. Bonie was convicted without the interview outtakes shows that the material was not critical for prosecutors to make their case. Furthermore, the interview was conducted in front of a jail official, whose testimony would have served as an alternative source for the same information.

Prosecutors have cited the rulings in the Bonie case to compel testimony or records from at least four other journalists or news organizations in recent months. They include Frances Robles, a Times reporter who interviewed a murder defendant in 2013. Ms. Robles and The Times are fighting the effort to compel her to testify in that case. The Times has separately filed a brief in the Bonie case on behalf of several news organizations, urging the Court of Appeals to reverse the lower court’s decision and set clear guidelines on the circumstances under which litigants should be given access to journalistic material that is not in the public domain.

Mr. Boal is also fighting the demand that he turn over tapes of his conversations with Sergeant Bergdahl, which appears to be a fishing expedition. A group of press freedom groups and news organizations are backing him, arguing in a legal brief that allowing Army prosecutors unfettered access to a journalist’s audio recordings violates the First Amendment.

While it may sometimes be justifiable to drag a journalist into litigation, the bar for doing so should remain extraordinarily high. The Bonie case gives the New York Court of Appeals an opportunity to affirm that principle, in keeping with the state’s strong tradition of defending freedom of the press.

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A version of this article appears in print on  , Section A, Page 22 of the New York edition with the headline: Prosecutors Versus the Press. Order Reprints | Today’s Paper | Subscribe

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