WASHINGTON – A federal judge held five reporters in contempt Wednesday for refusing to identify their sources for stories about Wen Ho Lee (search), a former nuclear weapons scientist once suspected of spying.
U.S. District Judge Thomas Penfield Jackson (search) imposed a fine of $500 a day each for Associated Press reporter H. Josef Hebert; James Risen and Jeff Gerth of The New York Times; Robert Drogin of the Los Angeles Times; and Pierre Thomas of ABC, who was at CNN when the stories were done.
Jackson said the fines would be delayed pending appeals. Attorneys for the journalists said they would appeal.
The reporters contend they provided all the relevant information they could without breaking a commitment to protect their sources. The sanctions come one week after another federal judge held a Time magazine reporter in contempt for refusing to testify before a grand jury investigating the leak of a CIA officer's identity.
"The threat to First Amendment rights that's going on this summer is unprecedented," said Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press. "We have reporters being subpoenaed. We have judges issuing illegal prior restraints on the media."
"All this has to do with secrecy. The government is trying to keep more and more secrets all the time, and journalists are working harder to uncover those secrets. Given the terrorism climate, all this has come to a head," she said.
Lee is seeking the identity of the sources for his lawsuit against the departments of Energy and Justice. He alleges the agencies gave reporters private information on him and suggested he was a suspect in an investigation into possible theft of secrets from Los Alamos National Laboratory (search) in New Mexico.
All but one of 59 counts against Lee eventually were dismissed and then-President Clinton apologized for Lee's treatment. He was never charged with espionage. He pleaded guilty to one felony count of mishandling nuclear weapons information.
In his order, Jackson rejected the reporters' arguments that Lee could obtain the information he seeks elsewhere. He said he was holding the five in contempt because they violated his explicit order in October to disclose the information.
"The journalists declined to reveal their confidential sources," Jackson wrote.
Hebert, a 34-year AP veteran, said he was disappointed by Jackson's ruling.
"I believe strongly that when a reporter gives a source the assurance that his or her confidentiality will be protected, he cannot go back on his word," Hebert said. "To do so would be a disservice to the source, destroy the reporter's credibility with future sources and hinder essential newsgathering."
George Freeman, assistant general counsel for The New York Times, said: "The Times continues to believe, as we have for decades, that confidential sources are critical for us to give the public as broad a perspective as possible on the important issues of the day."
Los Angeles Times vice president Martha Goldstein said, "The ruling seriously jeopardizes the press's ability to report about our government's actions and the public's right to know."
During the hearing, Lee's lawyer, Brian Sun, said learning the identities of the journalists' sources was critical to pursuing Lee's privacy action against government officials.
"Although the journalists would posit this as a battle of the First Amendment, we would submit it's not just that," Sun said. "It's undisputed that classified information was leaked and government officials acknowledged there were leaks. (Lee) is being deprived of crucial information."
Jackson's 12-page order avoids addressing the question of First Amendment rights, instead focusing on narrower issues such as whether the reporters truthfully and fully answered questions from Lee's attorney in depositions.
At one point, Jackson calls Gerth's statement in depositions that he could not recall some of his confidential sources "not credible." He also rejected an argument from attorneys that the subpoenas effectively punished reporters for publishing information they lawfully obtained.
Lee is "not seeking to 'punish' the journalists for publishing the information; rather, he seeks an order of contempt because they will not reveal sources that they have been ordered to reveal," Jackson wrote.
Last week, U.S. District Judge Thomas Hogan in Washington held Time magazine reporter Matthew Cooper in contempt for failing to reveal sources as part of the investigation into the leak of the identity of CIA officer Valerie Plame. Prosecutors have subpoenaed at least four other journalists, and Cooper is appealing.
"Reporters' ability to quote sources anonymously is a fundamental and crucial tool in getting important information to the public," said Stuart Wilk, vice president and associate editor of The Dallas Morning News and president of the Associated Press Managing Editors Association.
"Courts have held repeatedly that journalists can protect their sources. APME would hope that that principle ultimately will prevail," he said.