By Peter Scheer
“Deeply troubling.” “Profoundly disturbing.” “A huge disappointment.” So intoned various media law mavens in lamenting the decision of the New York Times, Los Angeles Times, ABC News, Washington Post and Associated Press to join in a settlement of an invasion of privacy lawsuit filed by Wen Ho Lee, an atomic scientist once suspected of espionage.
Lee had sued the federal government for its leaking of damaging information about him to the press, which, in a flurry of articles in 1998, had rushed to the apparently premature judgment of Lee’s guilt. Lee did not sue the news organizations, but subpoenaed their reporters to force them to disclose the sources of the leaks. In the settlement announced last Friday, the government agreed to pay Lee $895,000; the media organizations each agreed to pay Lee an average of about $150,000 (bringing the total settlement cost to $1,645,000).
So why the doom-and-gloom from the First Amendment commentariate? Unless you subscribe to the unrealistic view that the press should never, ever pay a dime to escape litigation, this settlement can only be seen as a victory for the affected news organizations and their reporters.
Consider that each news organization had already paid about $1 million in legal fees; that the reporters (Robert Drogin of The LA Times, H. Josef Hebert of AP, Walter Pincus of The Washington Post, James Risen of The New York Times and Pierre Thomas of ABC) had already been held in contempt and fined $500/day; that the news organizations themselves could be hit with ruinous contempt fines; that continued litigation might easily cost each news organization another $500,000 in legal fees; and that their only real hope for judicial relief–an appeal to the U.S. Supreme Court, which had declined to review the very similar appeals of Time Magazine’s Matthew Cooper and the New York Times’ Judith Miller only a year ago–was fading fast. (Indeed, the media were prescient: The Supreme Court on Monday denied their appeals.)
Consider all of this, and suddenly the opportunity to end the losses and eliminate further risks in exchange for a payment of $150,000 looks like an offer the press couldn’t refuse. This is especially so when you take into account that the media were not exactly blameless in this matter. The New York Times, to its credit (and, you can be sure, to its lawyers’ consternation), had conducted an internal investigation and published an extensive mea culpa, acknowledging mistakes in its coverage of the Lee case. That Lee never sued the Times for libel is one of the unexplained oddities of this litigation.
Nor is there much risk that, by settling with Lee, the press will encourage other would-be plaintiffs to try to extract payments from media organizations by subpoenaing them as witnesses. $150,000, after all, is not much of an inducement to filing suits that cost considerably more than $150,000 to litigate. Moreover, the Lee case, as a federal suit in which news organizations were third-party witnesses, was highly unusual. In more typical cases alleging violations of state law, subpoenas to reporters as witnesses would have been blocked by Shield Laws in effect in nearly all states.
There is also the delicious irony that the U.S. Justice Department, which is currently investigating leaks to the New York Times and Washington Post, and has indicated that news organizations could be prosecuted criminally for stories based on leaked national security information, has agreed to pay Lee money–which Lee can only be due on the theory that the Justice Department authorized the leaks about him.
In other words (and notwithstanding the disclaimers always made in settlements), the government’s payment to Lee is tantamount to an admission of official leaking at the same time the government has declared war on leaks. Oops. The Justice Department’s hypocrisy is showing. That, in itself, is a victory for the press.
Finally, the payments to Lee, which were necessary to free the reporters from the threat of fines and possible jail, may give a boost to efforts in Congress to enact a federal Shield Law. New legislation introduced last month would, if enacted, provide a qualified privilege to reporters in situations like the Lee case.
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Peter Scheer, a lawyer and journalist, is executive director of CFAC.