NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · Nov. 17, 2005
Another reporter found in contempt in Wen Ho Lee suit
Nov. 17, 2005 · The Washington Post‘s Walter Pincus became the fifth journalist currently in contempt of court for refusing to reveal a confidential source who gave him information about a government investigation of nuclear scientist Wen Ho Lee.
In ruling that Pincus must reveal his source or pay a $500-a-day fine, U.S. District Judge Rosemary M. Collyer wrote that “the qualified First Amendment reporter’s privilege does not protect Mr. Pincus from revealing his sources and that the reporter’s privilege urged by Mr. Pincus in federal common law is not tenable.”
Collyer suspended the fine to give Pincus time to appeal and gave him 48 hours to”contact each of his Government sources” to see if they would “release him from his pledge of confidentiality.”
Pincus’ contempt citation comes more than a year after five reporters were held in contempt for refusing to reveal confidential sources in Lee’s Privacy Act case against the government. The contempt citation against one of the reporters was thrown out earlier this year by the U.S. Court of Appeals in Washington.
In his Privacy Act suit against the FBI and the Department of Justice, Lee subpoenaed 20 government officials, but failed to find who illegally disclosed confidential records about him during a three-year FBI investigation into whether he was spying for China. The government never charged Lee with espionage, but Lee eventually pleaded guilty to one court of mishandling computer files.
After failing to find the source of the leak, Lee subpoenaed six journalists who covered the story, including Pincus who wrote two articles for The Washington Post on Feb. 17 and March 9, 1999, in which he used confidential sources providing information about Lee.
Due to procedural issues, Pincus’ refusal to testify was not covered in court rulings about the other five journalists. On Nov. 2, the full U.S. Court of Appeals in Washington, D.C., refused to rehear a decision holding four of the five reporters in contempt for refusing to reveal their sources. In hearing Pincus’ motion to quash Lee’s subpoena separately, Collyer ultimately came to the same conclusion — that Pincus is not protected by a reporter’s privilege.
Pincus argued that the First Amendment provides a qualified reporter’s privilege and that, alternatively, court rulings that comprise federal common law provide a reporter’s privilege.
Collyer found no First Amendment qualified privilege after applying the so-called Zerilli test, which arose out of Zerilli v. Smith, in which the D.C. Circuit recognized a qualified reporter’s privilege. According to the test, the privilege is overcome and the reporter must reveal the confidential source if the party seeking the information can show it is “of central importance” to the case and that the plaintiff has “exhausted every reasonable alternative” to find the source of the information.
The court found the information Lee sought was essential to his case, writing that without “obtaining truthful testimony from journalists concerning the identities of the Government sources who allegedly leaked information to the press, Dr. Lee cannot proceed with his lawsuit.”
In addition, the court ruled that Lee has “exhausted every reasonable alternative” because he had “deposed twenty Government officials” in search of the information. The court ruled that “Mr. Pincus’ argument that Dr. Lee should have deposed every individual suspected of providing information to Mr. Pincus or possessing any information that was allegedly leaked to the process if far beyond the scope of Dr. Lee’s burden under Zerilli.”
Pincus also argued the court should adopt a three-part test for a common law reporter’s privilege proposed by U.S. District Court Judge David S. Tatel in In re Miller — the case involving former New York Times reporter Judith Miller and her refusal to reveal her confidential source in an investigation into the outing of the identity of a CIA agent. Tatel’s test was similar to Zerilli but he added that the court must “weigh the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value.”
The court refused to apply this new test, finding it “inherently unworkable.” It found that the D.C. Circuit law was clear that only the two-part Zerilli test is used to overcome the reporter’s privilege. The court also thought that submission “of a reporter’s privilege to a judge’s determination of the newsworthiness of his or her story is also very troubling. Such a practice would create a subjective and elastic standard whose outcome could not be predicted.”
(Lee v. Department of Justice, Media Counsel: Kevin Baine, Williams & Connolly, Washington, D.C.) — CM