Journalists must reveal sources if centrally important to case and plaintiff has tried all other methods of getting information

Law Reporter, Apr 2004

Lee v. U.S. Dept. of Justice, 287 F. Supp. 2d 15 (D.D.C. 2003).

Journalists may be forced to reveal their sources if the information is of central importance to a case and the plaintiff has exhausted all reasonable alternative methods to gather the information, a federal district court held.

Here, Lee was working on nuclear weapons design at the Los Alamos laboratory when federal authorities determined that someone was selling information to China. The investigation focused on Lee, and information about the investigation and Lee's career was subsequently leaked to the press. Lee sued the United States, alleging it released confidential information without verifying its accuracy or getting his consent. During discovery, Lee attempted to depose the journalists who wrote the articles to prove their sources were U.S. officials. The journalists moved to quash Lee's subpoenas, citing reporter's privilege.

The court held the journalists must appear for the depositions and answer Lee's questions about their sources. The court determined that the U.S. Supreme Court, in Branzburg v. Hayes, 408 U.S. 665 (1972), declined to establish a reporter's privilege, but did agree that reporting has some First Amendment protections. Noting that neither the Court nor Congress has subsequently addressed the issue, the court said local jurisprudence is also slim. The court has, in the past, found there should be a balance between the First Amendment and citizens' obligations to give relevant testimony. Moreover, the court has granted reporters a "qualified privilege," holding that constitutional protections apply unless the information sought is "of central importance," and the plaintiff has exhausted all reasonable alternative sources.

In this case, the court held, the Privacy Act, 5 U.S.C. § 552a(b), is the relevant statute. That statute makes it a crime, as well as a tort, for an agency to willfully disclose a person's records without consent. Thus, for plaintiff to prevail against defendant, he must show defendant's agents were the informants. This requirement, the court reasoned, makes the journalists' sources centrally important.

Moreover, the court held, plaintiff had shown he exhausted every reasonable avenue available to him to get the information. Lee requested documents, sent interrogatories, and deposed numerous U.S. officials, who stonewalled each time. The court also said that First Amendment protections were never meant to protect informants who are committing a crime by sharing information.

Plaintiff's Counsel

Thomas Charles Green, Washington, D.C.

Charles Kevin Marshall, Washington, D.C.

Heather E. Hersh,

Brian A. Sun, and

Luan K. Phan, all of Santa Monica, Cal.