Court Decision Threatens Journalist Privilege

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The (almost) full U.S. Court of Appeals has let stand a lower court ruling compelling four reporters to testify in the Wen Ho Lee espionage case.

The decision not to review a decision by a three-judge panel of the same court was as close as it could get, 4 to 4 (two judges did not participate), with a majority needed to overturn.

The Wen Ho Lee case has been overshadowed by the Valerie Plame leak case, but one of the four judges on the dissenting side in Thursday's decision (paraphrased by the Committee to Protect Journalists) warned that the consequences to journalist privilege could be serious: Judge David S. Tatel wrote, according to the committee: "If the panel’s decision stands, then reporters’ sources would no longer have any protection no matter how important the leaked information was to the public."

The panel in June had refused to vacate contempt orders against four of five journalists who refused to reveal confidential sources.

The three-judge panel had held that a district court did not abuse its discretion in holding four journalists in contempt, including ABC Justice reporter Pierre Thomas, then with CNN, for refusing to divulge information on their reporting of the Wen Ho Lee espionage investigation.

Lee sued the FBI, DOE and DOJ and subpoenaed the journalists, who the court compelled to testify and identify the "officer or agent: who gave them information about Lee.

The contempt citation of Jeff Gerth of the New York Times was reversed for insufficient evidence, but the other four, against Thomas, the Times' James Risen, AP's Joseph Hebert, and Bob Drogin of the L.A. Times, were upheld.

The D.C. court deferred to the lower court's judgment in balancing the reporters privilege with the rights of the litigants, pointing out that the privilege is qualified, that the Supreme Court has said there is no "heightened" First Amendment scrutiny for discovery and, citing the Supreme Court's holding regarding privilege in Grand Jury cases that "it cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source...on the theory that it is better to write about crime than to do something about it."

On Aug. 18 of last year, U.S. District Court Judge Thomas Penfield Jackson started fining the reporters $500 per day apiece until they revealed their sources. The fines had been stayed pending appeal.

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