In the second setback for the news media in two days, a federal appeals court upheld civil contempt findings Tuesday against four journalists whose confidential sources pointed to scientist Wen Ho Lee as a possible spy.
Lee, who was exonerated of any espionage-related allegations, has sued over his treatment by the government. His lawyer wants the reporters to reveal their sources to help in Lee’s lawsuit. The judge has cited them for contempt of court for refusing and has ordered fines of $500 per day, though the penalty has been placed on hold while appeals are under way.
The identity or identities of the reporters’ sources “goes to the heart” of Lee’s case, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled.
The reporters are H. Josef Hebert of The Associated Press, James Risen of the New York Times, Robert Drogin of the Los Angeles Times and Pierre Thomas, formerly of CNN and now of ABC. The appeals court reversed a contempt finding against New York Times reporter Jeff Gerth, saying it had been based on insufficient evidence.
AP said it would seek a further appeal to the full nine-member court. A lawyer for Thomas said no decision had been made yet on further appeals.
The decision was the latest in a string of legal setbacks for journalists seeking to keep sources confidential.
On Monday, the Supreme Court refused to take up the case of New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper who face jail time for refusing to reveal their sources to a federal grand jury. In that case, a federal prosecutor is conducting a criminal investigation into who in the Bush administration leaked the identity of CIA officer Valerie Plame.
Last year Rhode Island TV reporter Jim Taricani was sentenced to home confinement after he refused a court order to reveal the confidential source of an undercover FBI videotape of an alleged bribe. He served four months.
“No criminal case is at stake here,” AP President and CEO Tom Curley said. “Journalists should not be forced to identify sources to help support Wen Ho Lee’s view that the government mishandled his case.”
“Joe Hebert’s ability to protect the identity of his confidential sources is critical to his effectiveness as a journalist,” Curley said. “Sources with important information will not come forward unless they can trust a reporter’s pledge to keep their identity under wraps.”
Lee’s attorney said they did not view the case “as an assault on the First Amendment.”
“We are pursuing justice for Dr. Lee, who is entitled to seek this information under the law. The D.C. circuit’s opinion reaffirms these principles,” said lawyer Brian Sun.
New York Times Publisher Arthur Sulzberger Jr. said the ruling went to the heart of the First Amendment and the free flow of information to the public. He also said many individuals named by Lee’s attorney as potential sources had not been questioned.
The Los Angeles Times said people who file civil suits should not be granted the power to order reporters to break their word to confidential sources. The newspaper said it was considering whether to appeal further.
Deanna Sands, president of the Associated Press Managing Editors Association, said the judiciary’s actions the past two days will curb the willingness of people with important information to come forward for fear of reprisal.
Lee’s name surfaced in the news media during a political controversy in 1999 when Republicans accused the Clinton White House of ignoring China’s alleged theft of U.S. nuclear secrets.
Lee was fired from Los Alamos National Laboratory in New Mexico. Indicted on 59 felony counts alleging he mishandled nuclear weapons information, he pleaded guilty to a single charge after spending nine months in solitary confinement.
His treatment drew an apology from a federal judge, who said the case had embarrassed the nation and every citizen.
Some legal experts see the courts as becoming increasingly hostile to the news media, though others warned not to read too much into the recent decisions.
“I think it’s a terrible mistake to generalize about two tough cases for the press and think the world is coming to an end,” said attorney James Goodale. “The press has fought hard here and these cases are a lesson for the press to keep on fighting. If reporters have to give up their time and go to jail, they should be treated as heroes.”
Goodale is the architect of the largely successful legal strategy the news media has employed ever since a landmark 1972 Supreme Court ruling went against a Kentucky reporter trying to protect his confidential sources. Goodale noted language by Justice Lewis Powell that reporters have a qualified privilege and persuaded his fellow lawyers to get that language adopted state by state.
Attorney Nathan Siegel, representing Hebert and Drogin, said society’s appreciation for the value of investigative reporting ebbs and flows and there are times “when people don’t appreciate it as much as they should.”
“There is certainly a trend in the federal courts to make it more difficult for reporters to protect confidential sources,” Siegel said.
UCLA law professor Eugene Volokh said the judiciary is relying on court precedents that have been on the books for decades.
“It’s always been the rule that when reporters’ testimony is really necessary, they have to testify,” Volokh said.
In Lee’s case, the appeals court said lawyers had taken proper care in trying to track down the leakers, questioning 20 people inside the government