Reporters Without Borders today condemned the US supreme court’s refusal yesterday to rule on the cases of five journalists who were held by a judge to be in contempt of court for refusing to reveal their sources for reports about Wen Ho Lee, a nuclear scientist formerly suspected of spying.
Noting that the supreme court refused in June last year to rule on the cases of Judith Miller, then a staff writer with the New York Times, and Matthew Cooper of Time magazine, who were held in contempt of court for similar reasons, Reporters Without Borders described the legal status quo as “untenable.” Miller spent 12 weeks in prison before consenting to reveal her sources.
“Amid increasing attacks on the confidentiality of sources, the supreme court has let slip an opportunity to provide a guarantee at the federal level for one of the very principles of investigative journalism, the right of reporters to protect their sources,” Reporters Without Borders said.
“A recently-concluded financial settlement between Wen, the government and the news media involved has determined the fate of James Risen, Robert Drogin, H. Josef Hebert, Pierre Thomas and Walter Pincus,” the organisation said. “While we welcome the fact that these journalists have avoided potential prison terms and have been able to protect their sources, it is regrettable that this is not as a result of a judicial decision. Courts are already ordering or will order other journalists to reveal their sources.”
Reporters Without Borders continued: “This situation increases the urgency of the debate on the bill introduced in the senate last month by Senator Richard Lugar (Republican - Indiana), which would accord journalists ‘qualified privilege’ at the federal level as regards the confidentiality of their sources.”
The organisation added: “The supreme court’s decision is in this case all the more regrettable as it cannot claim to be based on the supposed requirements of national security. It is very dangerous for press freedom as it makes the media pay for government leaks.”
Under the settlement reached three days before the supreme court’s ruling was issued, Wen abandoned an invasion of privacy lawsuit against the US government in return for payment of 1.6 million dollars. Under the deal, the five news organisations that currently employ the journalists - the Associated Press, New York Times, Los Angeles Times, Washington Post and ABC television - also agreed to pay Wen an additional 750,000 dollars.
Wen, who is of Chinese origin, brought a lawsuit against the justice and energy departments in 2003, accusing them of leaking information about him to the press at a time when he was suspected of being a spy. A court ruled in October of that year that he had a right to know who, within these government agencies, was responsible for initiating the leaks and allegations against him in the media.
When questioned by Wen’s lawyers between 18 December 2003 and 8 January 2004, Gerth and Risen of the New York Times, Drogin of the Los Angeles Times, Herbert of the Associated Press, and Thomas - who was working for CNN at the time - agreed to provide information but refused to reveal their sources, invoking their First Amendment rights under the US constitution.
Washington DC district court judge Thomas Penfield Jackson ordered the five journalists on 18 August 2004 to pay $500 a day until they named their sources. The DC court of appeals upheld his ruling on 28 June 2005 in all five cases except Gerth’s, where it was quashed on the grounds of insufficient evidence. Lawyers acting for the other four appealed to the supreme court.
The confidentiality of journalists’ sources is recognized today in 32 US states but not at the federal level. Manhattan district court judge Robert W. Sweet decided in favour of Miller and her New York Times colleague Philip Shanen in another case involving protection of sources on 24 February 2005. He said they should not be compelled to turn over their phone records to federal prosecutors charged with identifying a leak in an investigation initiated in 2001 into two Islamic associations suspected of ties to terrorist movements.
Federal prosecutor Patrick Fitzgerald, who had secured Miller’s conviction in the case of Valerie Plame case - the CIA agent whose identity was leaked to the press in 2003 - announced on 13 February of this year that he intended to appeal against the New York court’s decision.
On 3 May, Connecticut state legislators adopted a so-called “shield law” recognizing the right of journalists to source confidentiality. The law, which applies to online as well as traditional media, allows courts to demand disclosure of a source only when a clear and convincing need is established, when the information is not available from “any alternative source,” and when there is an “overriding public interest” in the disclosure. The new law must now be signed by the state governor to take effect.
A legal gulf therefore exists between the majority of states that recognise the confidentiality of sources and the federal level, where the First Amendment and a 1972 supreme court ruling alone do not give enough protection to journalists who want to protect their sources. It was to fill this gap that Senator Lugar and Senator Christopher Dodd (Democrat - Connecticut) introduced their bill in the senate.
The latest version of their proposed “federal shield law” would accord journalists “qualified privilege” as regards their sources. The privilege would not apply if the attorney general had exhausted all other avenues to obtain the desired information, if it was established that the reporter had information that was vital for a case and if their was a significant public interest in its disclosure.