A federal appeals court has refused to block an order requiring four journalists to testify about their confidential sources in reporting on former nuclear scientist Wen Ho Lee.
The appeal by news organizations failed on a 4 to 4 vote in which two of the dissenters warned that the ruling would damage First Amendment rights and all but destroy the principle that has generally protected reporters from being compelled to testify in such cases.
Lee's interest in seeking compensation in a civil suit "pales in comparison to the public's interest in avoiding the chilling of disclosures about what the government then believed to be nuclear espionage. . . . It's hard to imagine how his interest could outweigh the public's interest in protecting journalists' ability to report without reservation on sensitive issues of national security," appellate court Judge David S. Tatel wrote in dissent.
The four members of the U.S. Court of Appeals for the District of Columbia Circuit who voted not to hear the case did not issue written rulings. A majority of the court's 10 judges was required to grant a hearing, and two recused themselves from participating. The decision was issued Wednesday but released yesterday.
The New York Times is "very disappointed" in the ruling, said spokeswoman Catherine Mathis, but is "heartened" by the dissents, "which make clear that First Amendment values in protecting reporters and assuring public discussion of important issues should trump a civil litigant's need for information in routine cases."
The journalists reported in 1999 that Lee, who then worked at New Mexico's Los Alamos National Laboratory, was a suspect in the theft of nuclear secrets for China. Most charges were later dropped against Lee, who is suing government agencies for allegedly violating the Privacy Act by leaking information to the media.
The reporters in the case are James Risen of the New York Times, Robert Drogin of the Los Angeles Times, H. Josef Hebert of the Associated Press and Pierre Thomas, formerly of CNN and now at ABC.
In August, lawyers for Washington Post reporter Walter Pincus asked a federal district judge to refuse a request to hold him in contempt for refusing to testify about his confidential sources in the Lee case.
The bid for a rehearing before the full court follows a June decision against the journalists by a three-judge appellate panel. That ruling came a day after the Supreme Court declined to hear appeals by Time magazine's Matthew Cooper and Judith Miller of the New York Times in the Valerie Plame leak case, stirring concern among media advocates that reporters' privileges are being eroded by the courts.
A separate dissent, by Judge Merrick B. Garland, said the majority applied too narrow a test in evaluating the journalists' claims, and that "if the reporter's privilege is limited to those requirements, it is effectively no privilege at all."
Similar lawsuits compelling testimony from journalists would "be available to former officials seeking to learn who leaked the information that forced them to resign in their administration's own Watergate," he wrote.