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In a move that is surely unprecedented, five of the country’s leading news media organizations contributed to a settlement of privacy claims brought by Wen Ho Lee, the former Los Alamos nuclear scientist, against the federal government. They did so to get out from under subpoenas that Lee had served on their reporters seeking the identity of government officials who had acted as confidential sources in the reporting of espionage allegations against him. In the settlement announced earlier this month, The New York Times, The Washington Post, the Los Angeles Times, the Associated Press, and ABC News agreed to pay $750,000 on behalf of their reporters. Undoubtedly, some will find cause to criticize their actions. Any such criticism seems to me misplaced given the difficult scenario faced by the five journalists who were staring at the very real prospect of jail and significant fines unless they burned their sources. That the journalists faced this quandary as the result of reporting on a case of the utmost public importance is truly disturbing and highlights the need for congressional action on a federal shield law for reporters. A THORNY PROBLEM In 1998 the government accused Lee of giving nuclear secrets to China. He spent nine months in solitary confinement awaiting trial. The government was unable to prove the most serious charges against him, although he did plead guilty to one minor felony of mishandling classified data. According to The New York Times, the federal judge handling his case apologized to Lee for the ordeal the government put him through. A year after he was accused of espionage, Lee brought suit against the federal government claiming that in leaking certain information about him to the news media, it had violated the Privacy Act. To prove his case, Lee argued he needed to know the identity of the leakers, and he issued subpoenas to the journalists who had covered his case. Before seeking to enforce the subpoenas, he deposed many government officials, all of whom denied that they had acted as confidential sources. Lee’s case presented the journalists with a particularly thorny problem. Although many courts (including the U.S. Court of Appeals for the D.C. Circuit, where Lee’s case was heard) have recognized a First Amendment-based reporter’s privilege to protect confidential sources in civil cases, the protection is not absolute. It gives way where the information sought is essential to the case and otherwise unavailable from parties other than the journalist. In this particular case, Lee was able to make a strong argument that the identities of the sources were critical to his ability to prove his case, and because the most likely government sources denied any involvement, he was able to convince the court that the information could be obtained only from the journalists themselves. In other words, this was not a Judith Miller kind of case in which the court rejected the very existence of the privilege. In this case, one could accept that a privilege existed and still find in Lee’s favor consistent with the case law. AN IRRECONCILABLE CONFLICT Unfortunately for the journalists, their promises of confidentiality weren’t conditioned on essentiality or availability. Thus, absent some creative solution, the stage was set for an irreconcilable conflict between the ethical obligation to protect a source and the legal one to comply with a court’s order to disclose. Thus, the solution was to offer relatively modest payments to Lee to make the cases go away. This enabled the journalists to continue protecting their sources without defying the law. As to claims that there is something wrong with paying to resolve a subpoena, consider that in addition to putting the reporters in jail, the court likely would have levied significant fines, which might well have exceeded what was paid to resolve the case. Moreover, some or all of these fines might have gone directly to Lee. Indeed, he had filed a motion seeking this very result. And finally, in light of the unusual factual posture of the case and the Supreme Court’s earlier refusal to hear the Miller case, the likelihood of the high court intervening was somewhere between slim and none. PROTECTING SOURCES The really disturbing aspect of the Lee case is that it had to come to this in the first place. Unlike its recently concluded cousin involving the jailing of Miller over her refusal to identify the now-indicted I. Lewis “Scooter” Libby Jr. as her source in the Valerie Plame matter, the reporting on Lee presents a clear and compelling case for protecting reporters’ sources. The Miller case was always clouded by various sideshows that distracted from the importance of the issue at hand. It began with suggestions of media complicity in political retribution by the current administration. Robert Novak, the journalist who first reported Plame’s identity as a CIA operative, is a conservative partisan with close ties to the administration. Miller herself is a controversial figure, both for her reporting and for her relationship with colleagues. The Lee case is quite different. It involved reporting on an issue of undeniable public importance. It involved reporters doing what reporters are supposed to do�ferreting out information and telling us what they learned. Although some of the reporting on Lee’s case may well have been flawed ( The New York Times admitted as much in a commendable self-examination published in September 2000), there were no suggestions of political chicanery or partisan politics. And if the reporting was flawed, the law presents a remedy in the form of a libel suit. If reporters can’t protect their sources in cases like this, I fear we are likely to find that important information goes unreported. The fact is that confidential sources are a necessary part of the arsenal of an effective press. Unlike prosecutors or litigants, the press doesn’t have access to compulsory process. It needs to rely on persuasion and trust to get people to talk. Yes, sometimes confidential sources are overused. Sometimes they are misused. But that wasn’t the case here, and if we really want the press to be able to do its job effectively, it’s time we get serious about ending these conflicts between the Third and Fourth Estates. Congress is considering doing just that. Let’s hope it gets down to business soon.
David C. Kohler is director of the Donald E. Biederman Entertainment and Media Law Institute and a professor of law at Southwestern Law School in Los Angeles. He is the former senior vice president and general counsel of CNN in Atlanta. This commentary first appeared in Atlanta’s Daily Report , an ALM publication.

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