Sheridan: Con-Law

$750,000 Paid to WEN HO LEE by Publishers

Let's say that you are the lawyer for a newspaper that is being sued for millions of dollars for defamation and the person suing demands that the reporter give up the source who provided the damaging information.  The newspaper asks you to advise whether, if it refuses to cough up the information and is then held in contempt and the reporter is sent to jail, the U.S. Supreme Court is likely to reverse itself in its Branzburg v. Hayes (1972) decision which held that there was NO reporter/source/news-gathering privilege in support of freedom of the press.

How do you advise your client?  Surrender (compromise or pay) or fight?

The lawyers for the five news organizations in the Wen Ho Lee case must've told their clients to forgeddaboudit, the even more conservative Supreme Court is unlikely to flip, so don't take the risk, you're better off settling for your fair share of $750,000.

That's $150,000 apiece.

The lawyers decided they couldn't beat the rap. 

The media organizations decided they couldn't give up their sources.

That's Conlaw where the rubber meets the road, isn't it.

One reason this is worth thinking about is that there are several pending high profile cases in which the claim that such a privilege ought to be recognized and created is being contested.  One is the Scooter Libby prosecution of V.P. Richard Cheney's chief of staff, and the other is into the leak of grand jury testimony in the BALCO/Baseball Steroid scandal starring N.Y. whoops, S.F. Giants slugger Barry Bonds. The San Francisco Chronicle is moving to quash the subpoenas issued by federal prosecutors apparently contrary to previous practice of the Justice Department.  Perhaps the U.S. reasons that if it doesn't try to hold the line on grand jury leaks it's position will be weakened when it tries to plug up leaks from government employees on sensitive intelligence matters.  Here's the Chron story from June 1, 2006.

I used to root for the N.Y. Giants when Bobby Thomson, from my hometown and high school, hit the shot heard round the world off Sal the Barber Maglie of the dreaded (Brooklyn) Dodgers, but let's not lapse into the serious stuff, okay?

And this just in, the New York Times report on the story including it's sorry role in maligning Mr. Lee.

I can just guess what happened:  Someone in government decided to get Mr. Lee, perhaps because he was Chinese, and so they leaked a crock of half-baked you-know-what to the media about this big investigation into wrongdoing by a nuclear scientist at the bomb lab, accusing him of maybe being a spy for the dreaded Red China.  Only one person knew for a fact that the accusation was not true, and that was Mr. Lee, but who was listening to him.  Not the news media.  But then a federal judge in Mr. Lee's lawsuit held the media held in contempt of court for failing to produce their apparently wicked sources, and the reporters were hit with fines of $500 per day and jail, the newspapers had to examine these sources, which were apparently worthless.  Their lawyers may have realized that their reporters efforts were minimal, and their reliance misplaced to a degree beyond that of mere negligence protected by NYT v. Sullivan.  The media didn't need another victory for bad reporting in the name of free speech, which they may be unlikely to win from the current Court.  So the media coughed up in the name of keeping more reporters out of jail, and are putting the best gloss on the situation as possible.

BRANZBURG V. HAYES (1972)

The First Amendment Center has issued the report, below, as to how the circuit courts have ruled on a claim of First Amendment privilege for reporters in protecting sources who wish to remain confidential as a condition of leaking alleged news. 

That's not being cute, it's being lawyerly, for those are going to be issues.

Branzburg is the key case.  Prof. Geoffrey Stone, author of "Perilous Times" concerning the First Amendment in times of national crisis, spoke on Michael Krasny's talk-show today on KQED, San Francisco, where he pointed out that the Court declined to recognize a reporter's privilege to protect sources as such, but that Justice Lewis Powell, who joined the 5:4 majority, nevertheless wrote a concurring opinion taking back what he'd just voted for, stating that there were (or should be) limits on prosecution efforts to go after reporters' sources, such as not for harassment, etc. 

This, according to Prof. Stone, has caused confusion among judges wrestling with what the law is.  After all, only the Supremes get to make up law as they go along.  The rest of the troops in black robes are supposed to march in step.  In step to what?  If you find a Supreme Court opinion opaque, confusing, or ambiguous when applied to the facts before you, what are you supposed to do if you want to follow the law?  Suddenly you're unmoored from law and using your noodle. 

Later you get reversed because five of the nine Big Noodles saw things differently, alas.   

C'est la guerre, except that people go to jail over such differences of opinion.