Case settled, cert denied

From the Summer 2006 issue of The News Media & The Law, page 12.

By Casey Murray

When five news organizations agreed to pay former nuclear scientist Wen Ho Lee $750,000 as part of a larger settlement of his Privacy Act lawsuit against the government, the payout was unprecedented.

While the June settlement cemented that the U.S. Supreme Court will not hear a reporter’s privilege case during its next term, leaving that area of the law unsettled, it was not a complete loss for the news media.

“I think this case certainly shows that the news media should be doing everything in its power to secure the passage of a federal shield law so that the confusion that is now rampant in this area of law can be clarified so everybody knows what the rules are,” said Lee Levine of Levine Sullivan Koch & Schulz in Washington, D.C., who represented reporters Josef Hebert of The Associated Press and Bob Drogin of the Los Angeles Times in the Lee case.

In 2000, Lee sued the U.S. Departments of Energy and Justice and the FBI, claiming they violated his rights under the Privacy Act by publicly releasing information about him. At the time, federal agents were investigating Lee for suspected espionage regarding nuclear secrets. Prosecutors eventually cleared Lee of all charges except mishandling classified information.

In order to discover who leaked his personal information, Lee subpoenaed six reporters who covered the investigation: Pierre Thomas, formerly of CNN and now with ABC News; James Risen and Jeff Gerth of The New York Times; Hebert of The Associated Press; Drogin of the Los Angeles Times; and Walter Pincus of the Post. The reporters refused to comply with the subpoenas and in August 2004, U.S. District Judge Thomas P. Jackson found all the reporters but Pincus — whose case was proceeding more slowly on the same track — in contempt and fined them $500 per day until they complied. The fine was suspended pending appeals.

The reporters appealed and in June 2005, a three-judge panel of the U.S. Court of Appeals in Washington, D.C., agreed with the contempt finding while dismissing the case against Gerth. After the full court refused to hear the case in November, and Pincus was subsequently given the same penalty.

Levine said the federal appellate court ruling, while upholding the contempt rulings, was not a complete loss.

“It’s important to recognize that the [Lee] D.C. Circuit opinion, unlike the D.C. Circuit opinion in the Judy Miller case, does recognize a First Amendment based reporter’s privilege in the civil context,” Levine said. “The only disagreement in the Lee case is what the test is. Armed with the D.C. Circuit’s decision, reporters’ lawyers need to be basically playing to that script and formulating their strategies with that in mind.”

U.S. District Judge David B. Sentelle wrote in that ruling that the court “rejected the possibility ‘that there either is, or should be, an absolute First Amendment barrier to the compelled disclosure by a newsman of his confidential sources under any circumstances.'”

Although the court still required the journalists to testify, it at least required the party requesting the information to show “the usual requirements of relevance, need, and limited burdens on the subpoenaed person.”

After losing a narrow 4-4 ruling asking for the full appellate court review the panel’s decision, the reporters asked the U. S. Supreme Court to take the case. Had it been taken, it would have marked the first reporter’s privilege case considered by the Court since 1972’s landmark Branzburg v. Hayes. Instead, the Court appeared to wait and see if the parties would reach a settlement. After the settlement was announced, the Court announced it would not hear the case.

When the Supreme Court was scheduled to discuss whether or not to take Lee’s case, settlement discussions between Lee and media heated up. The Court postponed a May 11 discussion after receiving a letter from Lee’s lawyer describing a possible settlement. (See “Preferred Position,” page 1.)

Both sides were concerned about what might happen if the Court took the case. If the Court ruled against Lee, his case against the government would have been dealt a major blow. But the stakes were even higher for the media — fines that would escalate daily with no end in sight.

Faced with such high stakes, on June 2 — just before the Court was scheduled to discuss the case again — ABC News, The Associated Press, the Los Angeles Times, The New York Times, and The Washington Post agreed to pay Lee $750,000.