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Press
Releases
06/29/2005
Appeals court upholds
contempt against four reporters
By PETE YOST
Associated Press Writer
WASHINGTON (AP) -- 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 before trying to get information out of the reporters.
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On the Net:
http://pacer.cadc.uscourts.gov/docs/common/opinions/200506/04-5301a.pdf
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