U.S. District Judge Thomas Penfield Jackson ordered the reporters on Friday to answer questions about their sources and to provide Lee’s attorneys with notes and other documents from their newsgathering.
Lee is suing the U.S. Energy Department and Justice Department, alleging government officials supplied reporters with private information about him and suggested he was a suspect in an investigation into the possible theft of nuclear secrets from Los Alamos National Laboratory in New Mexico, the Associated Press reported.
Jackson ruled that, in this particular case, the First Amendment principle that typically protects journalists from having to reveal confidential sources was outweighed by the greater importance for Lee’s right to obtain possible evidence of government leaks.
The judge did not set a deadline for the reporters’ compliance.
Lee was indicted in December 1999 on 59 felony counts accusing him of mishandling nuclear weapons information. He spent nearly nine months in solitary confinement, then was released in September 2000 after pleading guilty to a single felony count.
In his ruling, Jackson apologized to Lee, saying the case “embarrassed our entire nation and each of us who is a citizen of it.”
The journalists ordered to give depositions are New York Times reporters James Risen and Jeff Gerth; Los Angeles Times’ Robert Drogin; H. Josef Hebert of the Associated Press; and Pierre Thomas, formerly of CNN, now with ABC.
New York Times spokeswoman Catherine Mathis said the newspaper would appeal.
“We continue to believe that protection of journalists’ confidential sources is essential to providing the public with important information. We expect to seek an appeal,” Mathis said in a press statement.
Dave Tomlin, the AP’s assistant general counsel, said his organization was still deciding whether to appeal the order.
“Before the First Amendment lets you compel reporters to reveal sources, we think you have to do more than get a small handful of government officials to shrug their shoulders and claim they don’t know or can’t remember,” Tomlin said.
A lawyer for the LA Times, Lee Levine, said the newspaper had not decided its course of action, The New York Times reported.
Charles Tobin, an attorney for former CNN reporter Pierre Thomas, told The Washington Post that Thomas was “disappointed” by Jackson’s ruling and they were still weighing their options.
If the reporters do not comply with Jackson’s order, they could face fines or be imprisoned for contempt of court.
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, told the AP, “I think it would be highly unusual if the order stands, and secondly if it stands I would be very, very surprised if the reporters complied with it.”
An attorney for Lee, Frank Volpe, told the AP he had not seen Jackson’s order, but said he assumed the news organizations would appeal.
Only one journalist, Ian Hoffman, formerly of the Albuquerque Journal, has agreed to answer questions from Lee’s attorneys, but said he would not reveal the names of anonymous sources, The Washington Post reported.
Hoffman told The Washington Post that he agreed to do so only because a government official he had quoted in an article about Lee denied ever speaking with Hoffman.
“In circumstances such as that, we needed to break with tradition and address it,” Hoffman told Washington Post reporter R. Jeffrey Smith in an interview.
In March 1999, The New York Times was widely credited for initially breaking the Chinese espionage story. But, by the following September, the paper issued a lengthy editor’s note, acknowledging there were “things we wish we had done differently … to give Dr. Lee the full benefit of the doubt.”