NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · June 28, 2005
Appeals court upholds reporters’ contempt citations
June 28, 2005 · A U.S. District Court judge did not abuse his discretion in holding four reporters in contempt of court and fining them each $500 a day in August 2004 for refusing to testify about their confidential sources, a panel of the U.S. Court of Appeals in Washington, D.C., ruled today. The contempt citation of a fifth reporter was overturned because he had testified that he had no confidential sources of information about the case.
Former Los Alamos nuclear scientist Wen Ho Lee is suing the Department of Energy, the Department of Justice and the FBI under the federal Privacy Act for leaking information to the press about him from a 1999 government espionage investigation. Lee was never charged with espionage, and eventually pleaded guilty to a single count of mishandling classified computer files.
Lee deposed 20 federal officials but was unable to discover the source of the leaks. He subpoenaed reporters Jeff Gerth and James Risen of The New York Times, H. Josef Hebert of The Associated Press, Bob Drogin of the Los Angeles Times, and former CNN reporter Pierre Thomas to testify about their sources for their stories on Lee.
District Judge Thomas Penfield Jackson refused to quash the subpoenas in October 2003 and ordered the reporters to testify under oath. After the reporters refused to answer some of Lee’s questions, Jackson held them in contempt of court in August 2004 and fined them each $500 a day. The fines were stayed pending appeal.
A three-judge panel of the Court of Appeals upheld the contempt citations for Drogin, Hebert, Risen and Thomas. Noting that the reporter’s privilege’s “very existence has long been the subject of substantial controversy,” Judge David B. Sentelle wrote that whether Lee had overcome the reporters’ qualified First Amendment privilege from revealing their confidential sources was a matter best decided by the District Court, and that the Court of Appeals would only review the case for abuse of discretion by the lower court.
The court ruled that Jackson had not abused his discretion in ruling that the privilege had been overcome because the information sought by Lee went to “the heart of” his case and he had exhausted “every reasonable source of information” by deposing 20 government defendants.
The “number of depositions necessary for exhaustion must be determined on a case-by-case basis,” Sentelle wrote. “This seems to be precisely the type of case-specific determination that the District Court is best positioned to make, and the decision in this case is well within its discretion.”
The court threw out the contempt citation against Gerth because he testified under oath that he had no confidential sources regarding Lee and did not know the identity of confidential sources who provided information for articles about Lee he co-wrote with Risen.
Attorney Charles Tobin, who represents Pierre Thomas, said it is too soon to know whether the decision will be appealed. The reporters could either ask the full Court of Appeals to hear the case, or appeal to the U.S. Supreme Court.
A sixth reporter, Walter Pincus of The Washington Post, has also been subpoenaed by Lee and held in contempt. His case has been on hold pending the resolution of the appeals by the other five journalists.
(Lee v. U.S. Department of Justice; Media Counsel: Floyd Abrams, Joel Kurtzberg, Cahill Gordon & Reindel, New York (for Jeff Gerth and James Risen); Lee Levine, Nathan Siegal, Levine Sullivan Koch & Schulz, Washington, D.C. (for H. Josef Hebert and Bob Drogin); Charles Tobin, Holland & Knight, Washington, D.C. (for Pierre Thomas)) — GP