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New York Times reporters refuse to answer questions about sources

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  1. Protecting Sources and Materials

    News Media Update         WASHINGTON, D.C.         Confidentiality/Privilege    

New York Times reporters refuse to answer questions about sources

  • Reporters challenged a federal judge’s order compelling them to reveal confidential sources for the Privacy Act case of former Los Alamos scientist Wen Ho Lee.

Dec. 19, 2003 — Two New York Times reporters defied a federal judge’s order yesterday, refusing to reveal their confidential sources during a deposition in the Privacy Act case of former nuclear scientist Wen Ho Lee. The reporters relied on a First Amendment privilege to protect their sources.

James Risen and Jeff Gerth are among five reporters who were ordered by a federal district judge in October to disclose their sources. They were the first to be deposed.

On Oct. 9, Judge Thomas Penfield Jackson, of the U.S. District Court in Washington, D.C., refused to grant the reporters’ motion to quash Lee’s subpoena requesting the information. Jackson said he had “some doubt that a truly worthy First Amendment interest resides in protecting the identity of government personnel who disclose to the press that the Privacy Act says they may not reveal.”

Although there is no federal reporter’s privilege law, the Supreme Court’s 1972 decision in Branzburg v. Hayes has been interpreted by many federal courts to provide a qualified privilege protecting reporters against compelled disclosure of confidential sources, especially in civil cases.

For refusing to disclose their sources at yesterday’s deposition, the reporters could be found in contempt of court and face fines or be sent to jail. However, reporters are rarely sent to jail when found in contempt of court in such cases. According to records maintained by the Reporters Committee, only five reporters have been jailed in the past 10 years for refusing to provide testimony or information in court.

Lee brought suit against the federal government under the Privacy Act, alleging the government violated the act by releasing personal information about him to the press. Lee, a former scientist at the Los Alamos nuclear laboratory in New Mexico, was suspected of espionage in 1999. He was indicted on 59 felony counts and kept in solitary confinement by the government for nearly nine months. Little evidence against Lee was discovered, and he was released after pleading guilty to one felony count of mishandling nuclear weapons information.

In order to succeed in his lawsuit, Lee must prove that information published about him came from within a government agency, and not from any member of Congress or congressional staffers who had access to the information.

Risen and Gerth wrote articles in 1999 about the government’s suspicion that Lee was providing China with U.S. nuclear secrets. In those stories, they revealed information about Lee’s employment history and personal finances.

Robert Drogin, of the Los Angeles Times, Josef Herbert, of The Associated Press, and Pierre Thomas, formerly of CNN and now working for ABC News, are the other reporters subject to Jackson’s order.

Charles Tobin, the attorney representing Thomas, says his client is scheduled to give a deposition in January.

(Lee v. Department of Justice, Media Counsel: Floyd Abrams, Cahill, Gordon & Reindel, New York) KM

© 2003 The Reporters Committee for Freedom of the Press

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