NEWS MEDIA UPDATE · D.C. CIRCUIT · Confidentiality/Privilege · Nov. 3, 2005
Split court won’t review contempt citations in Lee case
Nov. 3, 2005 · The full U.S. Court of Appeals in Washington, D.C., narrowly decided by a 4-4 vote today not to review a panel’s decision that allowed former Los Alamos nuclear scientist Wen Ho Lee to compel four reporters to testify about their sources regarding allegations of espionage by Lee. A majority of judges must vote in favor of review for the entire court to rehear the case.
The original three-judge appellate panel ruled in June that 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. The panel overturned the contempt citation of a fifth reporter because he had testified that he had no confidential sources of information about the case.
The split decision by the full court, with two judges not participating, elicited three dissents. Judge David S. Tatel wrote a dissent which was joined by Merrick B. Garland, and Garland wrote a dissent joined by Tatel. Judge Judith W. Rogers wrote a separate dissent.
Tatel’s dissent focused on the fact that the panel did not fully apply the test developed in Zerilli v. Smith, a 1981 case where the D.C. Circuit recognized a qualified reporter’s privilege. In Zerilli, the court said it must balance whether the public interest in protecting the reporter’s sources outweighs the private interest at stake in compelling disclosure. Tatel said the panel did not conduct this important balancing, but instead focused just on two of the “more precise guidelines” used in that balancing — whether the sources’ identities went to the heart of the claim and whether the plaintiff has exhausted all other possible sources of the information. Without applying the overriding balancing test, Tatel wrote, the court severely weakened the privilege recognized in Zerilli, which stated the reporter’s privilege should yield to a plaintiff’s interest only in “the most exceptional cases.”
“In this case, the panel never balanced the public and private interests,” Tatel wrote. “Because the panel’s arid two-factor test allows the exigencies of even the most trivial litigation to trump core First Amendment values, I believe this case is of ‘exceptional importance’ and merits the full court’s attention.”
If the panel’s decision stands, Tatel wrote, then reporters’ sources would no longer have any protection no matter how important the leaked information was to the public. This “converts this rather ordinary Privacy Act case — and any other run-of-the-mill leak case like it — into a ‘most exceptional case’ in which, contrary to Zerilli, the reporter’s interest must give way.”
Garland spoke of many of the same points, but focused specifically on the dangers the panel’s decision would have in Privacy Act cases.
“The significance of the court’s decision in this case should not be underestimated,” he wrote. Unless a leaker voluntarily confessed to the leak, “in most such cases the subject of the leak will be able to satisfy the centrality and exhaustion requirements cited in the court’s opinion. Thus, if the reporter’s privilege is limited to those requirements, it is effectively no privilege at all.”
In order to allow reporters to still claim the privilege when faced with a Privacy Act claim, Garland wrote, the court must weigh the competing public and private interests.
Rogers did not join Tatel’s or Garland’s dissent but instead focused on the need for the court to clarify the proper application of the Zerilli decision when faced with a Privacy Act claim. She wrote that the case presented “significant issues, which meet the applicable threshold for rehearing.”
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.
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.
(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 Hebert and Drogin; Charles Tobin, Holland & Knight, Washington, D.C., for Pierre Thomas) — CM