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11/18/2005: More About that Non-Existent Absolute Reporter Priviledge...
Yet another Court has ruled on the issue of what kind of *qualified* priviledge rules govern in this case and when reporters MUST comply with a Court's ruling to discuss their sources: From Wen Ho Lee v Dept. of Justice (pages 4 & 5)."...In August of 2002, Dr. Lee issued subpoenas to journalists James Risen and Jeff Gerth of The New York Times, Robert Drogin of The Los Angeles Times, H. Josef Hebert of the Associated Press, and Pierre Thomas of CNN seeking testimony and documents concerning the identity of the leakers. Id. Each of these journalists filed motions to quash their subpoenas on the grounds of a reporter’s privilege to refuse to reveal confidential news sources.
On October 9, 2003, Judge Thomas Penfield Jackson issued an order denying each of the five journalists’ motions to quash and ordering them to sit for depositions and to “truthfully answer questions as to the identity of any officer or agent of defendants . . . who provided information to them directly about Wen Ho Lee, and as to the nature of the information so provided.”
In rejecting the journalists’ assertions of privilege, the Court relied on the D.C. Circuit’s decision in Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981), which “laid out guidelines for balancing First Amendment interests with a litigant’s need for information when a plaintiff seeks to subpoena a non-party journalist in the context of a civil action.” Lee, 413 F.3d at 56-57. Zerilli recognized “a limited privilege upon which a reporter might withhold testimony on First Amendment grounds if it would compromise a confidential news source.” However, a plaintiff can overcome this qualified privilege and compel a journalist to reveal the identity of his or her confidential sources if
(1) the information sought goes “to the heart of” the plaintiff’s case and
(2) the plaintiff has exhausted “every reasonable alternative source of information” before seeking testimony from the journalist(s).
[Zerilli, 656 F.2d at 713; cf. Lee v. Dep’t of Justice, No. 04-5301, 2005 WL 2874940, at *2-3 (D.C. Cir. Nov. 2, 2005) (Tatel and Garland, JJ., dissenting from the denial of rehearing en banc) (arguing for a different interpretation of Zerilli) (“Lee (Denial of Rehearing)”). ]
Judge Jackson determined that Dr. Lee had clearly met both Zerilli requirements to overcome the journalists’ qualified privilege, and that at this stage in the litigation “only [the journalists] can testify as to whether defendants were the sources for the various news stories...”
Walter Pincus has refused to comply with this ruling of the Court and is now under a Contempt of Court Citation and a fine of $500 per day (but no jail time is involved in a civil case).
But the REAL issue is that there is NO ABOLUTE, UN-QUALIFED Priviledge for a Reporter. They have no legal standing to refuse to reveal the confidentiality of a source when ordered to do so by a Court under the balancing test of the First Amendment protections as stated above.
And these reporters, like Bob Woodward, Walter Pincus or Judy Miller, who think they have some ability to make up the rules to suit their own individual needs are just WRONG. Morally, Legally and Ethically WRONG under certain circumstances. So, they need to get off their First Amendment High-Horse and play by the rules that exist in the real world.
Karen on 11.18.05 @ 07:55 AM CST
