NEPA backs McGraw-Hill in opposing commodity futures trading commission subpoenas.

Some government agencies never seem to learn.

In its three-page declaration submitted to the United States District Court for the Southern District of Texas, the Newsletter & Electronic Publishers Association unfortunately had to rehash old arguments that "newsletter journalism serves the public interest in the same manner, and through the same means, as the more popular press."

The declaration was filed in support of the McGraw-Hill Companies Inc.'s opposition to the CFTC's application to the U.S. District Court in Houston to enforce the commission's administrative subpoenas of the company (NL/NL 5/31/03).

The CFTC issued the subpoenas to McGraw-Hill unit Platts in connection with its investigations of alleged natural gas price fixing by Enron Corp. and other natural gas traders. The commission subpoenaed Platts for information about the sources for its natural gas pricing survey, which the CFTC says may be based on false information provided by Enron and other energy companies.

McGraw-Hill refused, claiming its First Amendment rights to protect confidential sources who did not wish to be identified, and asked the court to uphold that refusal. CFTC argues that the publisher is not subject to First Amendment protections because it sells its price survey results to the energy industry rather than to the general public.

The declaration, signed by NEPA executive director Patricia M. Wysocki, quotes Supreme Court case law recognizing that newsletters are entitled to the full protection of the First Amendment. It notes that courts have held in a number of different contexts that newsletters are afforded a privilege against forced disclosure of confidential sources.

A ruling in favor of the CFTC, the declaration asserts, "could have a detrimental effect on the entire newsletter publishing industry and, in turn, on the members of the public--business persons, government officials and individual citizens--who depend upon the flow of news and information provided by newsletters."

Compelling newsletter publishers to disclose the identity of confidential sources, including whistle-blowers, would result in refusal by such sources to provide information of public interest to specialized publishers and to the public, the declaration argues.