WASHINGTON - A federal appeals court yesterday said that four journalists could be held in contempt for not revealing their sources in writing about Wen Ho Lee, the former nuclear weapons scientist targeted as a possible spy.
The ruling was the second in as many days in which a court has sanctioned the media for protecting confidential sources and comes at a time when the media are facing increased questions about bias and accuracy.
Lee - who worked at the Los Alamos National Laboratory in New Mexico - was the subject of an FBI and Energy Department investigation in the late 1990s into the possibility that the nation's weapons secrets were being passed to China. But the case against him collapsed and he sued the government, claiming that his image had been tarnished because of illegal leaks to journalists.
Lee then subpoenaed the reporters who covered the investigation. They declined to answer his questions, arguing that the First Amendment shielded them from having to turn over the names of sources to Lee's lawyers. In August, a judge held the reporters in contempt and fined them $500 a day apiece, pending appeal.
The reporters held in contempt were Bob Drogin of the Los Angeles Times, James Risen of The New York Times, Josef Hebert of the Associated Press and Pierre Thomas, a former CNN correspondent now with ABC News.
A contempt citation against a fifth journalist involved in the case, New York Times reporter Jeff Gerth, was dismissed yesterday. Gerth had denied knowing the identity of sources used in stories he co-wrote about Lee.
The 3-0 ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit came after a Supreme Court decision Monday that reporters for The New York Times and Time magazine could be jailed for refusing to reveal their sources to a prosecutor investigating the leak of the identity of a CIA operative.
A hearing in the CIA case is set for today to discuss in part the terms and conditions under which the journalists might be confined.
Media lawyers and First Amendment groups said yesterday that the two decisions were part of an ominous pattern.
The rulings "continue what appears to be an unmistakable trend of appellate courts questioning what the press and its lawyers had assumed was largely settled: except in extraordinary circumstances, reporters have a First Amendment right to promise confidentiality to sources and keep those sources confidential," said Lee Levine, a Washington media lawyer. Levine represents Drogin, the Los Angeles Times reporter held in contempt.
The Los Angeles Times is a Tribune Publishing newspaper.