The New York Times, the Washington Post, the Los Angeles Times, ABC News, and the Associated Press pooled $750,000 last Friday to buy their way out of a civil suit in which they weren't even defendants. The cash went to former nuclear scientist Wen Ho Lee, who had subpoenaed the news organizations' reporters to divulge their confidential sources in the Privacy Act suit Lee filed in 1999 against the federal government. As part of the mediated settlement, Lee also got $895,000 from the government.
In public, the news organizations treated the settlement as if they'd ordered the least-nasty entrée from a bad restaurant at which they were compelled to dine. And they denied that their chow-down set any precedent. "I don't see this as any type of incentive for attorneys to get money out of the media," George Freeman, New York Times Co. assistant general counsel, told Editor & Publisher's Joe Strupp. AP Managing Editor Mike Silverman and Washington Post Executive Editor Leonard Downie Jr. salvaged a victory of sorts from the settlement by noting to E&P that it rescued them from either surrendering their confidential sources to Lee's attorneys or seeing their reporters jailed on contempt charges.
But in private, I'll bet editors and their attorneys are as sick as dogs over all this.
As Freeman says, the outcome won't necessarily encourage gold-digger plaintiffs—$750,000 split among five deep-pocketed media organizations is chump change. But the money isn't the issue. A greater danger is that the Wen Ho Lee settlement may signal to plaintiffs' attorneys that newsrooms are becoming soft touches when it comes to subpoena defenses. That wasn't really true in this case—the New York Times, the Washington Post, the Los Angeles Times, ABC News, and the Associated Press reportedly spent millions to repel Lee's subpoenas. Still, in the end, they caved.
How many plaintiffs' attorneys in federal civil cases will now be encouraged to subpoena reporters to 1) gather evidence cheaply and efficiently for their cases or 2) bleed press coffers by throwing subpoenas at it? As many commentators have pointed out, $150,000 for a settlement isn't small change for small media. It costs only a few billable hours to prepare a subpoena and a nominal fee to file. If this were a battlefield, we'd call it asymmetrical warfare in favor of plaintiffs.
In-house counsels at newsrooms had best be re-educating reporters about legal exposure this week. The Supreme Court's issued a post-settlement decision rejecting the Wen Ho Lee subpoena defense. That and the court's previous wave-off of the Matthew Cooper and Judith Miller appeal skywrites a message to every news organization: In the absence of a federal shield law, subpoenaed reporters can't realistically expect to protect confidential sources unless they're ready to go jail on contempt charges.
First Amendment avatar Bruce Sanford predicted one likely upshot of the Wen Ho Lee appeals and settlement Monday night on TheNewsHour With Jim Lehrer.
"I think journalism based on confidential sources is going to be done more carefully, more surgically—certainly more thoughtfully—than ever before, because this settlement raises, potentially, the cost of publishing or broadcasting a story based on confidential sources," Sanford told reporter Jeffrey Brown.
The "surgical care and thoughtfulness" to which Sanford alludes probably includes discussions between reporters and confidential sources of how far reporters will go in the future to protect source anonymity. If the reporter is prepared to go to jail, he should tell his source that. If he's going to give up the source to a lawful subpoena, he should say so, too.
Conversations between reporters and editors about what anonymous sources belong in news stories should also be in the offing. Critics of the coverage of the Wen Ho Lee investigation argue that the government used confidential leaks to the press to intimidate him. Indeed, before Lee's December 1999 indictment, anonymous government sources gave the media damning information that pointed to his guilt, evidence that did not hold up. At the risk of being branded a journalistic pariah, the Lee settlement will be worth every penny if it prevents reporters from convicting suspects based on calculated anonymous leaks.