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Court Says Journalists Must Reveal Sources in Lee Case

Appellate ruling says four reporters can be held in contempt. Some see an ominous trend.

June 29, 2005|Richard B. Schmitt | Times Staff Writer

WASHINGTON — A federal appeals court said Tuesday that four journalists, including a Los Angeles Times reporter, could be held in contempt for not revealing their sources in writing about Wen Ho Lee, the former nuclear weapons scientist targeted as a possible spy.

The ruling was the second in as many days in which a court sanctioned the media for protecting confidential sources. It comes at a time when the media are facing increased questions about bias and accuracy.

Lee -- who worked at Los Alamos National Laboratory in New Mexico -- was the subject of an FBI and Energy Department investigation in the late 1990s into the possibility that the nation's weapons secrets were being passed to China. But the case against him collapsed and he sued the government, claiming that his image had been tarnished because of illegal leaks to journalists.

Lee subpoenaed the reporters who covered the investigation. They declined to answer his questions, arguing that the 1st Amendment shielded them from having to turn over the names of sources to Lee's lawyers. In August, a judge held the reporters in contempt and fined them $500 a day apiece, pending appeal.

For The Record
Los Angeles Times Saturday July 02, 2005 Home Edition Main News Part A Page 2 National Desk 1 inches; 51 words Type of Material: Correction
Reporters' sources -- An article in Wednesday's Section A about a court ruling that four journalists could be held in contempt for not revealing their sources in the Wen Ho Lee espionage probe referred to the 1972 break-in at the Watergate Hotel. The break-in took place in the Watergate office complex.

The reporters held in contempt were Bob Drogin of the Los Angeles Times, James Risen of the New York Times, H. Josef Hebert of Associated Press and Pierre Thomas, a former CNN correspondent now with ABC News.

A contempt citation against a fifth journalist involved in the case, New York Times reporter Jeff Gerth, was dismissed Tuesday. Gerth had denied knowing the identity of sources used in stories he co-wrote about Lee.

The 3-0 ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit followed a Supreme Court decision Monday that reporters for the New York Times and Time magazine could be jailed for refusing to reveal their sources to a prosecutor investigating the leak of the identity of a CIA operative.

Without elaborating, the high court let stand a lower court opinion -- written by David B. Sentelle, the same judge who wrote the decision in the Lee case Tuesday -- saying that journalists can be compelled to testify about their sources when called to appear before a grand jury. A hearing in the CIA case is set for today in part to discuss the terms and conditions under which the journalists might be confined.

Media lawyers and 1st Amendment groups said Tuesday that the two decisions were part of an ominous pattern.

The rulings "continue what appears to be an unmistakable trend of appellate courts questioning what the press and its lawyers had assumed was largely settled: Except in extraordinary circumstances, reporters have a 1st Amendment right to promise confidentiality to sources and keep those sources confidential," said Lee Levine, a Washington media lawyer. Levine represents Drogin, The Times reporter held in contempt.

"We were disappointed by the ruling," Martha Goldstein, The Times' vice president for communications, said in a prepared statement. "We think people who file civil suits should not be granted the power to order reporters to break their word to confidential sources, and we're examining our options."

In a written statement, Arthur Sulzberger Jr., publisher of the New York Times, called the decision "yet another blow to journalists' ability to report on how the government operates."

But prosecutors and those who think they have been wronged by illegal leaks say the requests are modest intrusions on the news gathering process, and that without the cooperation of journalists, serious wrongdoing will go unpunished.

The protections of the Privacy Act, the law that Lee is suing under, "do not disappear when the illegally disclosed information is leaked to a journalist, no matter how newsworthy the government official may feel the information is," Sentelle wrote. He noted that the journalists even refused to reveal their sources' employers -- "information that arguably would have been sufficient to support at least a portion of Lee's claim."

The principle at stake in the CIA case -- that journalists have no right to withhold testimony when called to appear before a grand jury -- was first articulated by the Supreme Court in 1972. That ruling, days before the break-in at the Democratic National Committee headquarters at the Watergate Hotel in Washington, did not deter the investigative reporting that led to the resignation of President Nixon, some observers have noted.

Lawyers for the journalists in the Lee case who were held in contempt said they had not decided on their next steps. They could seek a hearing before the full District of Columbia appellate court or appeal directly to the Supreme Court.

Sentelle, writing for a unanimous three-judge panel, said journalists had greater rights to protect their sources when their testimony was sought in civil suits as opposed to criminal proceedings, such as the CIA case. But he said that protection had distinct limits.

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