- The Washington Times - Friday, July 25, 2008

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.

Also in 2005, journalists from the Associated Press, the New York Times, the Los Angeles Times and CNN were found in contempt of court for refusing to reveal their sources to a federal grand jury for stories about former nuclear scientist Wen Ho Lee.

In another case, two San Francisco Chronicle reporters faced the threat of jail time for reporting leaked grand jury testimony concerning steroid use by major league baseball players until their source voluntarily came forward in 2007.

“Today’s hearing shows that First Amendment press freedoms are under assault,” Mr. Gertz said after Thursday’s ruling. “Confidential sources are the lifeblood of a free press, independent of government control. Without them, most government failures and abuses of past decades would have gone unreported and uncorrected.

“The identity of these confidential news sources must be protected if our press freedoms, fundamental to the effective functioning of our democratic system, are to endure. Efforts by government to compel reporters to disclose news sources must be resisted.”

His May 16, 2006, story cited unnamed “U.S. government officials” as the sources of information about the charges against Mak and his relatives.

Mak was sentenced to 24 years in prison in March after being convicted last year of acting as an unregistered foreign agent, attempting to violate export control laws and making false statements to the FBI.

Judge Carney, who presided over the case, had ordered an investigation to determine whether federal officials had leaked information from a grand jury investigation. Unauthorized release of confidential grand jury information by government officials about pending cases is a federal crime.

The case might not end with the judge’s ruling in favor of Mr. Gertz.

At the outset of Thursday’s hearing, Mr. Bratt informed the court that the attorney general had approved a grand jury subpoena to Mr. Gertz and asked that the judge stay his hearing while the grand jury investigated. Judge Carney refused.

“This fight may not be over,” Mr. Leeper said. But if Mr. Gertz is subpoenaed to appear before a grand jury, “we now have a judicial determination that the First Amendment interests here outweigh the need to know who provided the information for Bill’s original articles.”

U.S. Justice Department guidelines state that “all reasonable attempts should be made to obtain information from alternative sources” before the attorney general considers issuing a subpoena to a member of the news media.

The criteria for subpoenas require that non-media sources be able to verify that a crime has occurred and that the information sought through a subpoena of a reporter is essential to a successful investigation.

John Solomon, executive editor of The Washington Times, said, “We hope the Justice Department follows the judge’s lead today and recognizes the important First Amendment right in allowing reporters to have confidential sources so that Americans can get important news on issues like national security from good reporters like Bill Gertz.”

The Senate is considering a federal “shield law” that would protect reporters from the need to divulge their sources to courts.

A different judge might have ruled that Mr. Gertz must reveal his sources, said Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, a journalists advocacy group.

The proposed federal law would eliminate the risk that judges could interpret the reporters’ privilege differently, he said.

“I hope it will inspire some members of the Senate to see the need for a shield law so that doesn’t happen again,” Mr. Leslie said.

The reporters’ privilege is a limited First Amendment right granted by some states and courts to protect journalists from revealing confidential sources. It is recognized by the U.S. District Court for the District of Columbia and eight other federal courts. Thirty-two states have enacted shield laws that contain some degree of the reporters’ privilege.

Mr. Leslie called the ruling Thursday, “a solid victory for the First Amendment and the idea of a reporters’ privilege, even when a reporter is facing a grand jury.”

cThis story is based in part on a wire service report.