An end to reporters’ appeals
UPDATE Monday June 5 11:05 a.m. The Supreme Court denied review of the two appeals by reporters, without waiting for a formal move to dismiss the cases because of the settlement described below. See post above on Monday orders by the Court.
UPDATE 7:25 p.m. U.S. District Judge Rosemary M. Collyer in Washington on Friday dismissed “with prejudice” Wen Ho Lee’s lawsuit against government officials, and vacated earlier orders holding five reporters in contempt for refusing to disclose their news sources for use in Dr. Lee’s lawsuit. The case in District Court is Lee v. U.S. Department of Justice, et al., docket 99-3380. The documents available on the District Court’s website do not disclose the terms of the settlement leading to these results.
Two significant appeals to the Supreme Court, testing news reporters’ claim to a right to keep their confidential news sources from forced disclosure in civil lawsuits, are now expected to be dissolved in the wake of a settlement disclosed Friday. The pending cases are Drogin v. Lee (05-969) and Thomas v. Lee (05-1114).
Five news organizations announced that they had agreed to pay a former scientist at a government nuclear arms laboratory a total of $750,000 as part of a settlement the scientist, Dr. Wen Ho Lee, had reached with the government in a civil lawsuit against federal officials. News accounts said that Lee and the government had agreed to a payment of $895,000 to end his claims that officials had violated his rights under the federal Privacy Act by leaking information to the press about a federal espionage investigation of Lee. Thus, according to news accounts, Lee will get a combined payment of $1,645,000 in the deal.
In their joint statement, the five news organizations said they had agreed to pay a fee to Dr. Lee to protect their sources and their reporters, as well as the organizations themselves. “We were reluctant to contribute anything to this settlement, but we sought relief in the courts and found none,” the statement said. “Given the rulings of the federal courts in Washington and the absence of a federal shield law, we decided this was the best course to protect our sources and to protect our journalists.” The statement speaks for the ABC broadcast network, the Associated Press, the Los Angeles Times, the New York Times and the Washington Post. Their statement can be found here.
Another news organization whose reporter also had been found in contempt for refusing to disclose confidential sources, the Cable News Network, declined to join in the settlement. Its former reporter, Pierre Thomas, had filed his own appeal to the Supreme Court, separate from that of the other reporters. CNN said in a statement: “CNN paid over a million dollars towards Pierre’s defense in this matter. We parted ways because we had a philosophical disagreement over whether it was appropriate to pay money to Wen Ho Lee or anyone else to get out from under a subpoena. While we recognize that others involved came to a different conclusion, and we respect their decision, CNN was unwilling to pursue that option.”
With the underlying lawsuit settled, however, Thomas will also benefit from the end of Dr. Lee’s pursuit of access to reporters’ sources. So far, the Justice Department has not publicly confirmed the settlement, or its terms.
The Supreme Court has taken no action on either of the reporters’ pending appeals, but the parties are now likely to move to dismiss them under the Court’s Rule 46.1, which allows the parties to take that action without having to gain the consent of the Court..
Here’s a question about reporters’ claims of a right not to reveal their sources that has puzzled me for years. The Court has stated on several occasions and in different contexts that the First Amendment provides the press with the same rights that it provides to other members of the public. That would seem to mean that the I have the same right to protect my ’sources’ that the press has if I am asked about them in litigation. If there’s some precedent or principle at work that would make that conclusion incorrect, I’d be grateful to hear about it.
Comment by skeptik — June 5, 2006 @ 12:47 am
Skep, you are right, in Branzburg v. Hayes the court decided that journalists enjoy no rights beyond those of ther citizens. However, society has recognized the special role of the press in providing information, for example by providing press passes to let reporters behind police lines and into combat zones, and for judicial example in NY Times v. Sullivan by limiting libel actions by public figures against the press. Traditionally, technically illegal journalistic activities, such as sneaking a knife through airport security to show how easy it is, have not been prosecuted. Also traditionally, it has been frowned upon to try to turn press live action coverage into police evidence, although the Court refused to enforce this expectation in Zurcher v. Stanford Daily. Sometimes a sort of first amendment “work product” privilege for unpublished materials such as notes and photos has been claimed, but without much success. So the basic reason for recognizing journalistic privileges is that the benefit to society of maintaining a free flow of information outweighs the benefit to society of obtaining every person’s evidence through judicial process.
Comment by r.friedman — June 5, 2006 @ 8:23 am
Mr./Ms. Friedman:
So, we agree that the press has no unique constitutional right to protect its sources. Therefore, doesn’t it follow that, if the policies you describe are worth protecting, it’s up to the legislature(s) to protect them, unless, of course, we are to ascribe to the ubiqitous fallacy that everything that is a bad idea is unconstitutional?
Comment by skeptik — June 6, 2006 @ 12:05 am