December 26, 2003


BROOKE GLADSTONE: From WNYC in New York, this is NPR's On the Media. I'm Brooke Gladstone.

BOB GARFIELD: AndI'm Bob Garfield. Last week, New York Times reporters Jeff Gerth and James Risen invoked what they believe is their First Amendment privilege not to reveal anonymous sources. The wrinkle here is that those sources -- presumably government employees --provided the erroneous information that led to scientist Wen Ho Lee being smeared in print over allegations about the passing of nuclear secrets to China in 1999. Lee, who was held in solitary confinement for nine months and whose reputation was destroyed, wants to sue for violation of his rights under the Privacy Act. In order to do that, he needs to identify the government agencies that spread the erroneous accusations to the press in the first place. To do that, he needs the reporters to identify their sources. But they don't want to, despite an order from a federal judge to comply. Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press says this court order is "very dangerous territory," and she joins me now from Washington, D.C. Lucy, welcome back to OTM.

LUCY DALGLISH: Thank you very much, Bob.

BOB GARFIELD: All right, so why is this territory so dangerous?

LUCY DALGLISH: It's been about 30 years since the U.S. Supreme Court has directly confronted this issue, and in fact in the last ten years I think we've only had five journalists sentenced to jail for refusing to release confidential source information. So to have five of them all at once in the same case in such a high-profile situation, and they're all from major news organizations, I think it's a fairly dramatic case.

BOB GARFIELD:Yeah. The other three are not with the New York Times but have been ordered to testify in the same case by Judge Thomas Penfield Jackson. Correct?

LUCY DALGLISH: Yes. They're from the Los Angeles Times, the Associated Press and CNN.

BOB GARFIELD: Well, at the risk of asking you to belabor the obvious, why is it so important to journalists and to sources and to democracy for the privilege of confidentiality to remain alive?

LUCY DALGLISH: Journalists view their duty to keep confidential information confidential the same way that doctors and lawyers and priests view their duty to keep confidential information confidential. You want sources to be able to feel that they can come forth, share information with a journalist, and that a journalist is going to act independent of the government or independently of any party in a lawsuit, and their only goal is to share the truth. The only thing a journalist can really rely on is the public's perception that they are operating independently.

BOB GARFIELD:Now, there is a body of law that in general supports the reporter's privilege, and a number of states have shield laws which explicitly protect journalists in situations like this, but on a federal level, there is no absolute right to journalistic privilege, is there?

LUCY DALGLISH: No, there's not. The federal government has never passed what we call a shield law. It gives a reporter a privilege not to divulge information. Several federal circuits have recognized varying degrees of a privilege under certain circumstances, and in fact in this case Judge Jackson did consider the reporter's privilege. He said that Mr. Wen Ho Lee's attorneys had exhausted all alternative methods of finding this information, and said that the only course of action left to him was to order the journalists to testify.

BOB GARFIELD:This case is interesting and I think puts the issue in very sharp relief, because it's not a case of a whistleblower telling tales on the government. It appears to be a case, or at least Wen Ho Lee believes it's a case, of the government unleashing its employees to smear a private citizen, and in fact in his Los Angeles Times column, journalist Robert Scheer, who is unabashedly left of center, said that Gerth and Risen and the others should surrender their sources, because if they don't it will give the government license in the future to use their resources to harm its own citizens.

LUCY DALGLISH: But in the end, if you allow the government to compel you to testify and identify your confidential sources, your credibility as a journalist ultimately is gone, and the result will be journalists and sources being far less willing to take risks on whistle-blowing.

BOB GARFIELD:One final thing. I'm assuming that your absolutism on this issue doesn't deprive you of sympathy for Wen Ho Lee. What do you tell Mr. Lee in these circumstances?

LUCY DALGLISH: I guess I say Mr. Lee, there are certain journalistic principles at stake here, and we are intent on behaving ethically, and just because you believe someone in the federal government behaved unethically and illegally in revealing your name does not mean that we as journalists should behave unethically.

BOB GARFIELD: Yeah. I don't think he's buying, but it, it makes some sense to me. [LAUGHTER] Thanks so much.

LUCY DALGLISH: You're very welcome.

BOB GARFIELD: Lucy Dalglish is executive director of the Reporters Committee for Freedom of the Press.

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