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.
Continue reading "$750,000 Paid to WEN HO LEE by Publishers" »