The resolution of an ugly battle

From the Summer 2006 issue of The News Media & The Law, page 1.

In June, five media companies took the unprecedented action of participating in a settlement to resolve a lawsuit between a former federal employee and the U.S. government. When they agreed to pay nuclear scientist Wen Ho Lee $750,000, the contempt fines levied against their reporters for protecting their confidential sources was lifted.

I was appalled that the news organizations participated in the settlement.

But I doubt I would have found a better resolution.

Lee, you will recall, sued the U.S. Departments of Energy and Justice and the FBI in 2000 claiming that they violated his rights under the Privacy Act by publicly releasing information about him. At the time, Lee was under FBI investigation for suspected espionage but was eventually cleared of all charges except one charge of mishandling classified information.

Lee subpoenaed the reporters who wrote about the investigation: Pierre Thomas, formerly of CNN and now with ABC News; James Risen and Jeff Gerth of The New York Times; Josef Hebert of The Associated Press; Bob Drogin of the Los Angeles Times; and Walter Pincus of The Washington Post. The reporters refused to comply with the subpoenas, which sought the identities of confidential sources.

In August 2004, a federal judge found five of the six reporters in contempt and fined them $500 per day until they complied. The fines were stayed pending appeal. In June 2005, a three-judge panel of the U.S. Court of Appeals in Washington, D.C., agreed with Jackson's ruling while dismissing the charges against Gerth after finding he used no confidential sources and did not know the identity of Risen's sources. Pincus, who was found in contempt in November, appealed separately.

The case was unsuccessfully appealed to the entire circuit. The reporters then asked the U.S. Supreme Court to take the case. Before the Supreme Court's decision was announced, ABC News, The Associated Press, the Los Angeles Times, The New York Times and The Washington Post each agreed to pay Lee $150,000. A few days after the settlement, the Supreme Court announced it would not have heard the appeal. In a joint statement from the news organizations on the day of the settlement, the media outlets said they agreed to the payout "to protect our confidential sources, to protect our journalists from further sanction and possible imprisonment, and to protect out news organizations from potential exposure. We were reluctant to contribute anything to this settlement, but we sought relief in the courts and found none."

So ended one of the ugliest reporter's privilege battles of the past 20 years. I guess I shouldn't have been surprised.

There's a little secret out there that a few news executives and media lawyers will let you in on: going to jail to protect your source imposes a hardship, but it probably won't ruin your life. It might even make your career.

But here's another reality: In civil cases, judges are much more likely to impose exorbitant fines than send an uncooperative reporter to jail. The final trial judge who handled the Lee case, Rosemary M. Collyer, upped the ante. At a hearing, not only did she say she would uphold the $500-a-day fines to each reporter, but said she would issue an order prohibiting the reporters' employers from reimbursing them for the fines. Whether she could actually do that is debatable, but I think that's what tipped the scales for the media companies.

The news companies couldn't tolerate a situation where their reporters face personal bankruptcy just for doing their jobs.

It's a decision I'm very glad I didn't have to make.

The only upside: the sources were protected.

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With this issue of The News Media & The Law, we are joined by Loren Cochran as director of the Reporters Committee's Freedom of Information Service Center. Cochran had a distinguished career as an investigative television producer for about a decade in Tampa, Boston and Seattle before attending law school at Boston College. After receiving his law degree in 2002, he was a trial lawyer in Tacoma for several years at Gordon Thomas Honeywell Malanca Peterson & Daheim LLP.

As someone who also worked as a reporter and as a trial lawyer before joining the Reporters Committee, I welcome Loren to the rewards of the nonprofit world — low in pay, but high in satisfaction.