E-Mail This Article to a Friend Journalism’s next big battle (continued)
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A CIVIL MATTER

Other recent attempts to breach source confidentiality via the courts have been related to criminal investigations: Plamegate involves a possible federal criminal violation, while Providence TV reporter Jim Taricani was sentenced to home confinement for refusing to reveal the source of a secret tape in a municipal corruption case. But reporters caught in the Wen Ho Lee saga are being asked to cough up confidential sources in a civil Privacy Act lawsuit, and journalism advocates see that as an even greater threat.

"It lowers the bar for when somebody in a civil lawsuit can demand, when a reporter must unmask a source," says Charles Tobin, an attorney representing Thomas.

Lee Levine, an attorney for Hebert and Drogin, says that "there’s an additional concern that the interest of a private litigant would be held to be more important than the journalist’s or source’s [right to confidentiality]."

In his petition for rehearing, Levine argued that given the DC Circuit’s ruling, "no reporter today could make a credible promise of confidentiality to a contemporary Deep Throat because any modern-day Watergate suspect or even convicted felon could file a Privacy Act suit and compel disclosure of the reporter’s confidential sources."

In fact, reporters could be compelled to testify in a Privacy Act suit filed by Steven Hatfill, the researcher whose name surfaced in connection with the investigation into the 2001 anthrax attacks that killed five people. Claiming he was the victim of leaks to the media, Hatfill sued the government under the Privacy Act and subpoenaed about a dozen news organizations. (Hatfill has also sued the New York Times for libel, litigation that had been dismissed but was reinstated by a federal appellate court in late July.)

For now, Hatfill has withdrawn the media subpoenas while his legal team pursues a full-fledged discovery strategy against the government. But he could still come after the news outlets later. In a brief filed in connection with the Wen Ho Lee case earlier this year, Hatfill’s lawyers argued that "neither the First Amendment nor the common law gives reporters or media enterprises any exemption from a citizen’s obligation to disclose evidence of illegal acts committed in his or her presence, including violations of the Privacy Act."

Judging the public’s attitude toward the complex issue of reporters and their confidential sources is a pretty tricky matter. In one survey touted as a good sign for the media, a May 2005 poll commissioned by the American Journalism Review and the First Amendment Center found that 69 percent of the respondents agreed with the statement, "Journalists should be allowed to keep a news source confidential.’"

Yet another survey taken around the same time by the University of Connecticut seems to fly in the face of those sentiments. In that poll, 57 percent of the general public voiced approval for the court ruling that forced Miller and Time magazine’s Matt Cooper to reveal their sources during the Plame investigation.

NORMAL METHODS

In their petitions for a rehearing in the Lee case, the journalists’ attorneys argued that specific circumstances relevant to their clients’ reporting should exempt them from the court’s ire. But they also focused on the broader dangers to journalism posed by Lee’s suit.

Hebert’s legal team argued that "[t]he authors of the Privacy Act ... would likely be among the most surprised and troubled to find that a statute aimed at combating the misuse of computer database technology has become a vehicle for imposing onerous sanctions on reporters for using normal journalistic methods to report about a matter of such obvious public importance as alleged nuclear espionage."

Thomas’s lawyers contended that "the trial court erroneously failed to require Dr. Lee to demonstrate that he had exhausted alternative sources for the information sought to be compelled from Pierre Thomas specifically." And the filing on behalf of Risen stated that "the newsworthiness of the stories published here outweighed any harm caused by any of the leaks."

In a potentially significant development, lawyers for the Washington Post’s Walter Pincus — an accomplished national-security reporter whose case has lagged procedurally behind those of the other Wen Ho Lee reporters — argued before US District Court judge Rosemary Collyer last week for the court to create a common-law application of a reporter’s privilege similar to attorney-client privilege. (Judge Jackson, who issued the August 2004 contempt rulings, has retired.)

"There’s no overriding public interest in compelling disclosure. That’s the main thing I argued to Judge Collyer," says Pincus’s attorney, Kevin Baine. "I argued that there was no substantial harm caused by any leak in this case."

It’s not clear how a favorable ruling by Collyer might affect other reporters already in contempt. But Kurtzberg says it could re-open the entire matter: "As a practical matter, we would likely have the opportunity to raise the argument with her — even if we lose at the appellate [level] — that we should have the benefit of that same argument."

In the meantime, the complicated, convoluted fight to protect the Wen Ho Lee sources goes on. And the stakes for investigative reporting and freedom of the press couldn’t be higher.

"The question really is whether or not reporters have the right to promise confidentiality to their sources and then abide by their promises," says Baine, suggesting that forcing journalists to choose between disclosure or incarceration isn’t a realistic alternative.

"In the long run that’s not a very secure basis for sources to operate on," Baine adds, "that reporters are going to be willing to go to jail."

Mark Jurkowitz can be reached at mjurkowitz[a]phx.com