A three-judge panel of the D.C. Federal Appeals Court has refused to vacate the contempt orders against four of five journalists who refused to reveal confidential sources.
It was the second blow to journalist privilege, following by only a day the Supreme Court's decision not to hear the appeal the contempt citations of Matt Cooper and Judith Miller, who face jail time for refusing to divulge who leaked the name of CIA employee Valerie Plame.
The D.C. appeals court 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.
Barbara Cochran, who heads the Radio-Television News Director's Association, said that, like the Supreme Court decision Monday not to review the appeal of two other journalists' contempt citations, the D.C. circuit decision argues for the need of a federal shield law. She added: "The thing that makes this even more disturbing is that it is a civil suit, not even a criminal investigation. How you can justify forcing reporters to justify reporters to reveal their sources in a case like this is beyond me."