Judge upholds reporter's right to protect sources

By Tom Ramstack | Friday, July 25, 2008

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A federal judge in California supported a reporter's right to protect confidential sources on Thursday, ruling in favor of Washington Times national security reporter Bill Gertz on First Amendment grounds.

In a ruling that reverses a pattern of gradual encroachment on the right to protect sources, U.S. District Judge Cormac J. Carney found that Mr. Gertz could not be compelled to answer questions on a May 16, 2006, article about a Chinese espionage case because his First Amendment right to protect his sources outweighed the government's need to identify those sources.

Judge Carney, whose court is in Santa Ana, Calif., also refused federal prosecutor Jay Bratt's request for time to appeal the ruling. However the prosecutor told the court that the Justice Department is pursuing a separate grand jury investigation of the leak that sparked the case and indicated Mr. Gertz may be subpoenaed in that probe.

Mr. Gertz briefly took the stand to respond to a request from Judge Carney that he voluntarily reveal the sources for his 2006 report that the Justice Department had approved indictments of Chinese-born engineer Chi Mak and three relatives in a conspiracy to export defense technology to China.

"No, sir," Mr. Gertz said.

The reporter then cited the Fifth Amendment in response to questions about newsworthiness and the importance of keeping sources confidential.

"The freedom of the press is a paramount interest," Judge Carney ultimately ruled. "It is undeniable that Mr. Gertz was performing a vital public service by reporting on the Chi Mak case."

Attorneys for Mr. Gertz said the ruling could influence other cases involving the news media.

"It has been some time since we have seen a judge deliver a ruling like this," said Charles Leeper, an attorney for Mr. Gertz. "The law of course varies from circuit to circuit, but the judge's reasoning was thorough and thoughtful, so other courts might give it considerable weight."

In 2005, New York Times reporter Judith Miller spent 85 days in jail for refusing to testify about conversations she had with confidential sources in connection with the leaked identity of CIA operative Valerie Plame.

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