The June 29 news story "Court Orders 4 Reporters to Reveal Sources in Lee Case" is a classic example of inept press coverage of a legal ruling.
The article is about a civil lawsuit in which Wen Ho Lee, the former nuclear scientist, is the plaintiff. The court ruled that four reporters must answer questions about their confidential sources on stories they produced about Lee. The story suggests that the ruling is part of a new trend in the law after the Supreme Court's decision not to hear the appeals of reporters Matt Cooper and Judith Miller in the Valerie Plame matter.
But in addition to not telling the reader who Lee is suing, what ruling was on appeal or whether the appellate ruling even mentioned the Supreme Court's decision in the Plame matter, the article perpetuates a common misperception about a reporter's legal right not to disclose confidential sources.
The article quotes four individuals, including two lawyers involved in the case, all of whom suggest that courts are suddenly eroding a supposed absolute right of reporters to refuse to disclose confidential sources in response to a subpoena. One of the lawyers states flat out that recent court rulings cast doubt on something that "was settled long ago -- that reporters have the ability to make and keep promises to their sources." But that is simply not true.
The Supreme Court ruled in 1972 that reporters who learn about criminal activity while reporting have no First Amendment privilege to refuse to obey a grand jury subpoena. Even many of the shield laws that some states have enacted to protect reporters explicitly provide for forced disclosure of confidential sources in certain circumstances, such as those in the Lee case.
A strong argument can be made that it would be in the public interest to give reporters the right to protect confidential sources in some or all legal contexts. Since at least 1972, however, any reporter who has promised, and any source who has believed, that reporters have an absolute right to protect the source's identity from disclosure in legal proceedings has simply been uninformed about the law in most of the country. Unfortunately, The Post's article contributes to this common misunderstanding.
-- Thomas P. McLish