NEWS MEDIA UPDATE · U.S. SUPREME COURT · Confidentiality/Privilege · May 18, 2006
Supreme Court on hold as U.S. and Lee negotiate
May 18, 2006 · In a letter filed Tuesday with the U.S. Supreme Court, lawyers for former Los Alamos nuclear scientist Wen Ho Lee said that Lee is negotiating a possible settlement in his Privacy Act lawsuit against the government, a case in which six reporters have resisted subpoenas. If reached, a settlement would remove the chance, for now, for the high court to rule on reporter’s privilege.
The Court was scheduled to discuss whether to take the case on May 11 but on Monday announced that it had rescheduled the case for discussion today, although it could delay consideration again until the parties tell it the results of their settlement negotiations. The court is scheduled to announce Monday what decisions it made at today’s conference.
Four reporters are asking the Supreme Court to take the case, in which Lee is suing the Department of Energy, Department of Justice and the FBI under the Privacy Act, claiming government officials violated the act by disclosing personal information about him to the media when he was under investigation for espionage. Lee subpoenaed reporters when he could not determine who leaked the information
“You never know what they’re going to do,” said Theodore Olson, who represents Pierre Thomas, formerly of CNN and now with ABC News. “You don’t want to speculate, but we were very encouraged that the court did not deny cert” and let the reporters’ contempt charges stand.
The U.S. Court of Appeals in Washington, D.C., in June upheld contempt charges and $500-per-day fines imposed by U.S. District Judge Thomas P. Jackson on Thomas, James Risen of The New York Times, Josef Hebert of The Associated Press and Bob Drogin of the Los Angeles Times. Jeff Gerth of The New York Times was also originally subpoenaed, but the court dismissed the contempt charge against him after he testified he had no confidential sources and did not know the identity of Risen’s sources. Walter Pincus of The Washington Post, who was found in contempt in November, appealed separately.
The Court’s decision to reschedule the case conference was announced before the letter from Lee’s attorneys announcing settlement negotiations was filed, so it may not have played a role in the rescheduling. While the Court’s action is not completely uncommon, it could mean that four or more justices wanted to take the case and needed more time to discuss. On the other hand, it could mean that the justices were not planning on taking the case but those in opposition wanted time to write a dissent explaining why the Court should have taken the case. Or the Court could have just needed more time to discuss the implications of the case.
Unlike Judith Miller’s attempt to claim a reporter’s privilege — which was before a grand jury — Lee’s case pits the rights of the press to keep confidential sources against a civil action with no national security implications. In addition, this case is much different than 1972’s Branzburg v. Hayes, the only decision regarding reporter’s privilege released by the Court, which also involved grand jury testimony.
“We have a very good petition,” Olson said. “If there was to be a case to be considered for a reporter’s privilege and to present facts most favorable to the press, this would be it.”
(Lee v. Dept. of Justice; Media Counsel for Pierre Thomas: Theodore Olson, Gibson Dunn & Crutcher, Washington, D.C.) — CM