NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · June 2, 2006
Settlement reached in Lee case involving reporter’s subpoenas
June 2, 2006 · Five media organizations have agreed to pay $750,000 to former nuclear scientist Wen Ho Lee as part of a settlement of a Privacy Act lawsuit between Lee and the government that ends contempt citations for journalists protecting the identities of their confidential sources.
ABC News, The Associated Press, the Los Angeles Times, The New York Times and The Washington Post agreed to pay Lee, who had subpoenaed six reporters to learn who leaked information about him to the news media when he was under investigation for espionage.
In a joint statement from the news organizations, 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.”
The U.S. Supreme Court was scheduled to discuss whether to take the case, but postponed discussions last month when it learned that Lee and the government were in settlement talks. That means that for the foreseeable future, the high court will not take up the issue of a reporter’s privilege which it last ruled on in 1972.
The media companies cited the lack of a federal reporter’s privilege as another reason for settling. “Given the rulings of the federal courts in Washington and the absence of a federal shield law, we decided this was the best course to protect our sources and to protect our journalists,” the statement said.
Lee 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 Herbert 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.
In August 2004, U.S. District Judge Thomas P. Jackson 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 five reporters appealed for the full appellate court to review the panel’s decision. But a narrow 4-4 ruling, with three separate dissents, allowed the panel’s decision to stand. The reporters then asked the U.S. Supreme Court to take the case.
(Lee v. Dept. of Justice; Media Counsel: Floyd Abrams, Joel Kurtzberg, Cahill Gordon & Reindel, New York (for Jeff Gerth and James Risen); Lee Levine, Nathan Siegel, Levine Sullivan Koch & Schulz, Washington, D.C. (for H. Josef Hebert and Bob Drogin); Theodore Olson, Gibson Dunn & Crutcher, Washington, D.C. (for Pierre Thomas)) — CM