The Resolution of an Ugly Battle

Article excerpt

In June, five media companies took the unprecedented action of participating in a settlement to resolve a lawsuit between a former federal employee and the U.S. government. When they agreed to pay nuclear scientist Wen Ho Lee $750,000, the contempt fines levied against their reporters for protecting their confidential sources was lifted.

I was appalled that the news organizations participated in the settlement.

But I doubt I would have found a better resolution.

Lee, you will recall, 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 Hebert 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, which sought the identities of confidential sources.

In August 2004, a federal judge 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 (Ierth 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 case was unsuccessfully appealed to the entire circuit. The reporters then asked the U.S. Supreme Court to take the case. Before the Supreme Court's decision was announced, ABC News, The Associated Press, the Los Angeles Times, The New York Times and The Washington Post each agreed to pay Lee $ 150,000. A few days after the settlement, the Supreme Court announced it would not have heard the appeal. In a joint statement from the news organizations on the day of the settlement, 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. …