Should government agents, operating on their own authority and in violation of privacy law, be allowed to smear Americans by leaking false information to the media? Are journalists who print those lies protected by the 1st Amendment from revealing their sources, thereby preventing those falsely accused from obtaining justice through lawsuits?
Those issues were raised by a federal judge's recent ruling that demanded the names of the sources used by reporters who in 1999 printed false claims that scientist Wen Ho Lee had passed on nuclear secrets to China.
Lee was held in solitary confinement for nine months before the government's case collapsed and 58 of the 59 charges against him were dropped. The conservative Reagan-appointed judge in the case said in freeing Lee, "I sincerely apologize to you, Dr. Lee, for the unfair manner in which you were held in custody by the executive branch."
To sue for violation of his rights under the federal Privacy Act, Lee must identify the government agencies that leaked the defamatory information. Last week, New York Times reporters Jeff Gerth and James Risen, who did the most to hype claims of Lee spying for China, for which the paper later apologized, defied the judge's order to reveal their sources. (Three other reporters -- including one from the Los Angeles Times -- are also under subpoena.)
A spokesperson for the New York Times defended its reporters' actions, saying they "chose to take advantage of their 1st Amendment privilege on identifying sources." What about the constitutionally protected rights of Lee, whose reputation, livelihood and freedom were destroyed by the irresponsible reporting of the Times? That is often the dire consequence of leaked government smears and is a serious concern in the defamation of individuals accused after 9/11 of having links to terrorism under the USA Patriot Act. Yet the knee-jerk reaction of the media is to claim a 1st Amendment protection, even if it results in defaming individuals on the basis of secret sources.
That claim of unfettered privilege was rejected by the U.S. Supreme Court the last time it visited this issue; it ruled in 1972 that reporters were required to reveal sources if the information went "to the heart" of a case and could not otherwise be obtained. That's exactly the situation faced by Lee.
