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the press's legal battles

Some recent criminal and civil cases that have been seen as challenging the First Amendment role of the press to be a watchdog on government and to provide a free flow of information to the people.

Criminal Cases


At issue: the press's right to protect confidential sources.

In July 2003, former ambassador Joseph Wilson published an op-ed piece in the New York Times stating, that based on his own CIA-authorized investigation into allegations that Iraq had tried to purchase nuclear matieral from Niger, the charges were bogus.

A week later, columnist Robert Novak reported that Wilson had been assigned to the Niger inquiry because his wife, Valerie Plame, was a CIA operative and had recommended him for the job. Novak attributed this information to "two senior administration officials." Wilson, backed by a vocal group of mostly Democratic supporters, decried Novak's column as a politically motivated attempt to undermine his credibility and called for an investigation into who had leaked his wife's name to Novak.

Wilson and his supporters cited legislation that makes it a federal crime to knowingly reveal the identity of a covert CIA agent. In December 2003, after an initial Justice Department investigation, then-Attorney General John Ashcroft recused himself and assigned a special prosecutor, Patrick Fitzgerald, to investigate the leak. The following month, Fitzgerald convened a grand jury to determine whether a crime had occurred.

Fitzgerald sought the identities of the "two senior administration officials" who had leaked Plame's name in order to question them and determine if they'd committed any prosecutable crimes. Over the next two years, Fitzgerald identified and questioned administration officials -- up to and including President Bush -- and reporters he believed could have pertinent information based on White House phone and appointment logs.

Fitzgerald ultimately directly subpoenaed at least six journalists, including Tim Russert of NBC, Matt Cooper of Time, Judy Miller of the New York Times, and Walter Pincus, Bob Woodward and Glenn Kessler of The Washington Post. Robert Novak has refused to say publicly if he was subpoenaed, but The Washington Post reported in October 2005 that he cooperated with Fitzgerald from the case's early stages.

What was the outcome?

Most of the reporters agreed to talk to the prosecutor about their sources in the Plame affair, but Russert, Cooper and Miller initially contested their subpoenas. After failed appeals, Russert and Cooper eventually made deals with the prosecution to disclose limited information about their conversations with administration sources, and Time Inc. Editor-in-Chief Norman Pearlstine independently agreed to comply with a subpoena for Cooper's notes and e-mails.

Miller did not make a deal and was sent to jail for contempt of court in July 2005. She served 85 days before announcing that her confidential source -- Vice President Cheney's Chief of Staff, I. Lewis "Scooter" Libby -- had given her permission to testify. She was released from jail on Sept. 29, 2005, and gave limited testimony to Fitzgerald.

In the end, Fitzgerald's grand jury inquiry did not charge anyone with improperly revealing Valerie Plame's name, but in October 2005 he did indict Libby on charges of perjury, obstruction of justice, and making false statements to investigators. Libby's trial began in January 2007, and many of the same reporters -- including Novak, Miller, Cooper, Russert and Pincus -- have testified. Novak testified that the two senior officials who provided information for his 2003 column were White House adviser Karl Rove and former Deputy Secretary of State Richard Armitage, who in September 2006 publicly admitted he was Novak's source, although he denies knowing Plame was an undercover agent.

Plame and Wilson have filed a civil suit against Libby, Vice President Cheney, Rove and Armitage. If it goes forward, that case could involve subpoenaing reporters to testify again.

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At issue: the press's ability to protect confidential sources, even when it involved a leak from a grand jury investigation.

Read an important update on the BALCO case

In 2002, the U.S. Justice Department launched an investigation into the Bay Area Laboratory Co-Operative (BALCO), a nutritional supplement company located near San Francisco. They suspected BALCO's founder, Victor Conte, used the supplement business as a front to sell illegal steroids to professional athletes. In 2003, after authorities raided BALCO's lab, San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams began publishing an extensive series of articles on the case's developments.

In some of their articles, Fainaru-Wada and Williams printed confidential information from the case's grand jury proceedings. They filled in names that had been redacted from the indictments the grand jury made public, revealing that high-profile athletes were appearing to testify, including sprinter Marion Jones and baseball stars Jason Giambi and Barry Bonds. Fainaru-Wada and Williams' reporting won awards and a nod of appreciation from President Bush for exposing the problem of steroid use among professional athletes. The pair also parlayed their stories into a book, Game of Shadows, that focused on the evidence that Bonds had used performance enhancing substances.

Who wants the information?

In June 2004, the judge overseeing the grand jury in the BALCO case expressed concern that the Chronicle's stories on the proceedings included illegal leaks of secret grand jury proceedings and ordered the prosecuting attorney to investigate. In December of that year, after more articles had appeared revealing more supposedly confidential information, the prosecutor requested a formal Justice Department inquiry, which led to the creation of separate grand jury to investigate who was leaking testimony from the BALCO grand jury.

When were reporters subpoenaed?

When the BALCO prosecutor initiated his leak inquiry, he asked Fainaru-Wada and Williams to voluntarily surrender any leaked transcripts they had received; both refused. Six months later, in May 2006, Fainaru-Wada, Williams, and the Chronicle received subpoenas to appear before the grand jury investigating the leaks. The subpoenas asked the reporters to turn over any grand jury transcripts they had received -- including the packaging they had come in -- and to testify about who had supplied them with these materials.

The reporters and the Chronicle again refused to comply. Shortly thereafter they filed an official motion to contest the subpoenas based on First Amendment concerns, which included supportive affidavits (pdf file) from journalist Carl Bernstein and Mark Corallo, a former Department of Justice spokesman under Attorney General John Ashcroft.

What happened?

In August 2006, a judge ruled against Fainaru-Wada and Williams' motion to quash the subpoenas. The judge ordered that both reporters be jailed for up to 18 months and that the Chronicle pay a fine of $1,000 per day for contempt of court. These punitive actions were put on hold while the reporters and the Chronicle waited for the 9th Circuit to hear their appeal, scheduled for March 2007.

On Feb. 14, 2007, defense attorney Troy Ellerman admitted he was the reporters' source. He has pled guilty to four counts of violating a judge's order by leaking the transcripts, and faces a jail sentence of up to two years and a fine of up to $250,000. Ellerman -- who in October 2004 had filed to have the charges against his client and his confederates dismissed on the grounds that the leaks made a fair trial impossible -- said he allowed Fainaru-Wada to come to his office and take verbatim notes of the grand jury testimony in June and November of 2004. Following this admission, federal officials announced they would no longer seek to jail the reporters or fine the Chronicle.

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Josh Wolf

At issue: the press's ability to protect confidential sources, even when it involves a criminal investigation.

On July 8, 2005, a San Francisco protest march against the G-8 economic summit turned violent, with one policeman seriously injured. Police claimed that during the melee, some of the protesters tried to set a San Francisco Police Department cruiser on fire. A few days later, local detectives and FBI agents assigned to investigate the alleged arson knocked on the door of Josh Wolf, a freelance journalist and video blogger. Wolf had filmed the July 8 protest; on July 11 he posted video from that night on his blog, The Revolution Will Be Televised, where he often featured footage of similar demonstrations. Wolf had also sold clips from his footage to local news stations. The agents asked Wolf to voluntarily turn over everything he recorded at the march. Wolf refused.

Who wants the information?

The San Francisco Police Department, but since the department receives federal funding, the investigation went to a federal grand jury to gather more information about events the night of the rally.

Was he subpoenaed?

In February 2006, Wolf was subpoenaed to appear before the grand jury and turn over his footage. He resisted, arguing that complying with the subpoena would irreparably damage his credibility and access as a journalist and make him a de facto law enforcement agent.

What happened?

In August 2006, the judge overseeing the grand jury proceedings held Wolf in contempt of court for refusing to testify. He ordered Wolf to spend one month in federal jail, hoping Wolf would change his mind and cooperate. Wolf was freed in September and continued to appeal the judge's ruling. He offered to allow the judge to pre-screen the footage alone to verify if it contained anything relevant to the investigation, but the judge would not agree to these conditions.

By the end of September 2006, Wolf had unsuccessfully pursued all possible avenues for appeal up through the Ninth Circuit Court of Appeals. The grand jury judge ruled that Wolf must return to prison for the duration of the grand jury's term.

After 226 days in jail -- having served more time than any other journalist in U.S. history -- on April 3, 2007, Wolf and prosecutors reached an agreement after having been ordered into mediation by the judge. The 24 year-old blogger was released from jail after he answered two questions about what he saw during the demonstration and turned over his videotape to federal prosecutors while simultaneously publishing it on his Web site. He also issued declared victory in a statement on his site, saying the agreement "leaves my ethics intact but actively serves the role of a free press in our so-called free society."

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The Espionage Act: The AIPAC Case

At issue: the threat of prosecuting private citizens, and journalists, for possessing and passing on classified information.

Thirty years ago, the Nixon administration considered using the 1917 Espionage Act to prosecute The New York Times for publishing a Defense Department history of the Vietnam War which came to be known as the Pentagon Papers. The White House ultimately pulled back. And during the Ford administration, Deputy Chief of Staff Dick Cheney weighed using the statute to prosecute The New York Times and reporter Seymour Hersh for a story which published details of highly classified U.S. Navy missions. More recently, Attorney General Alberto Gonzales has publicly commented on the possibility of using the act to go after reporters whose stories contain leaked classified information, like The Washington Post's secret prisons story and The New York Times' NSA eavesdropping the SWIFT banking surveillance stories.

But to date, the Espionage Act has only been used once to prosecute private citizens. In 2003, the FBI opened a wide-ranging investigation into the alleged leaking of classified information to the American Israel Public Affairs Committee (AIPAC). Investigators suspected AIPAC was in turn passing on top-secret facts and documents to colleagues, members of the media and Israeli officials. The investigation quickly zeroed in on Lawrence Franklin, a Defense Department employee unhappy with the Bush administration's policy toward Iran, as the leaker responsible for giving classified information to AIPAC employees.

In May 2004, Franklin agreed to wear a wire to help investigators pursue their AIPAC targets. He led the investigators to AIPAC lobbyists Steven Rosen and Keith Weissman. Two months later, a wiretapped call from Rosen and Weissman to Washington Post reporter Glenn Kessler recorded the two offering the journalist sensitive national security information obtained from a reliable inside source. The source was Franklin.

In April 2005, as the investigation continued, AIPAC fired Rosen and Weissman. Later that year the pair were indicted under the Espionage Act, a 1917 law that makes the "unauthorized possession" of "information relating to the national defense" illegal. Rosen and Weissman were not technically charged with spying, but rather with conspiring to obtain and pass along classified reports on topics including Al Qaeda, the 1996 bombing of the Khobar Towers, and U.S.-Iran policy. In response to the charges, Rosen's and Weissman's attorneys contended that their clients were never in the position to know if information they received from government officials was important to national security and had been given to them improperly.

Who wants the information?

The U.S. Justice Department is pursuing the prosecution of Rosen and Weissman. This is not a traditional leak investigation, because investigators know who the leaker is -- Franklin. Their focus is on proving that his sharing information with Rosen and Weissman constituted a crime.

When were reporters subpoenaed?

No reporters have been subpoenaed in the case against Rosen and Weissman. Prosecutors asked to talk with Kessler, but they did not subpoena him when he refused because the recorded phone call between the reporter, Rosen and Weissman already contains the evidence they need.

In August 2006, during arguments to dismiss the case, Rosen's and Weissman's attorneys pointed to an August 2004 report by 60 Minutes correspondent Leslie Stahl that broke the story of the FBI's investigation into AIPAC. The judge rejected the defense's argument that the leak evinced by Stahl's report damaged the government's case, but he did order an official inquiry into how information about the probe reached the media. There have been no public reports of journalists subpoenaed to testify about this leak, but the progress of the inquiry is being kept under seal by the judge.

What happened?

In 2006, Lawrence Franklin was sentenced to 12 years and seven months in prison for his role in leaking classified information to AIPAC and to members of the media. Some of his sentence will be suspended in return for his ongoing cooperation with prosecutors.

Rosen and Weissman's trial is scheduled to begin on June 4, 2007. In August 2006, a judge ruled against the lobbyists' motion to have the case thrown out; defense lawyers had argued that the language in the Espionage Act is overly broad and therefore unconstitutional. In his ruling, however, the judge did urge Congress to revisit the 1917 act to be sure that it adequately addresses issues created by new technologies and practices.

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Civil Cases


Wen Ho Lee

At issue: journalists' ability to protect confidential sources.

In December of 1999, shortly before being indicted on 59 counts related to spying, Wen Ho Lee filed suit against the U.S. Energy and Justice Departments and the FBI. Lee, a former nuclear scientist at the Los Alamos National Laboratory, contended that by leaking sensitive information about him to the press, officials in these agencies had violated his civil rights as guaranteed by the 1974 Privacy Act. Ultimately, the government's case against Lee collapsed due to a lack of evidence. He pleaded guilty to a single count of improperly downloading classified information, and the rest of the charges were dropped.

After Lee's criminal prosecution ended, he resumed his Privacy Act suit, and his legal team began investigating the leaks to the media. In order to move his suit forward, Lee needed to know the identities of the individuals who had shared information with the press. His lawyers undertook an extensive investigation to find the leakers, ultimately spending four years taking depositions from more than 20 government officials they believed could be connected to or have knowledge of the leaks.

In 2004, after their intra-government investigation had turned up no leads, Lee and his lawyers subpoenaed five reporters to testify about the confidential sources who had informed their reporting on Lee: Bob Drogin of the Los Angeles Times, H. Josef Hebert of the Associated Press, James Risen of The New York Times, Walter Pincus of The Washington Post, and Pierre Thomas, who reported for CNN at the time of his Lee coverage but is now employed by ABC.

What was the outcome?

The reporters twice contested their subpoenas before the District of Columbia Court of Appeals, arguing that divulging their sources would irreparably damage their ability to work as reporters and that Lee's team had not sufficiently tried to find the leakers' identities by other means. Twice the court ruled against the journalists, finding that Lee had the right to pursue his suit and that knowing the identities of the leakers was central to his ability to do so. The judges also ruled that Lee's team had expended enough effort trying to find the individual leakers before turning to the journalists. The court planned to fine each journalist held in contempt $500 per day if the case proceeded.

On June 3, 2006, the United States government and five media organizations -- ABC, the Associated Press, the Los Angeles Times, The New York Times, and The Washington Post -- agreed to pay Lee $1.65 million to settle his suit. The government contributed $895,000 (to be used only for legal fees and taxes) and the media organizations paid $150,000 each, an amount dwarfed by what they'd already spent litigating the case's multiple appeals.

Although the media organizations were not technically defendants in Lee's suit, they chose to pay to help resolve the case without forcing their reporters to give up their sources. "We were reluctant to contribute anything to this settlement," the five media organizations said in a joint statement, "but we sought relief in the courts and found none." CNN, Pierre Thomas' employer at the time of the reporting in question, declined to contribute to the settlement, citing "a philosophical disagreement over whether it was appropriate to pay money to Wen Ho Lee or anyone else to get out from under a subpoena." (Thomas' current employer ABC News paid his share.)

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Steven Hatfill

At issue: the press's ability to protect confidential sources

Dr. Steven Hatfill, a physician and bioterrorism expert, became a "person of interest" of the FBI's investigation into the mailing of letter laced with anthrax in October 2001. In 2003, Hatfill, who was never charged with any crime, filed two suits seeking compensation for harm caused by media coverage that portrayed him as a suspect in the attacks, which killed five people. In one suit, he accused the New York Times Co. and Times columnist Nicholas Kristof of defamation. In the other, he sued former Attorney General John Ashcroft, the FBI, and the U.S. Department of Justice for violating the 1974 Privacy Act by leaking information to the press.

To proceed with his defamation case against the New York Times Co., Hatfill claimed he needed to know the identities of Kristof's sources for a series of columns in which Kristof criticized the FBI's investigation of the anthrax attacks, including their handling of Hatfill. A judge agreed. To prove a violation of the Privacy Act, Hatfill's second suit also required discovering the identities of the government leakers. As in Wen Ho Lee's suit, this investigation would involve subpoenas to both government officials and reporters.

In the fall of 2006, after a dismissal and a pair of successful appeals for reinstatement, a District Court Judge ruled that Kristof must reveal his sources' names in the defamation suit. Kristof refused, and although the judge chose not to fine him for contempt of court, he ruled that Kristof could not use any information gathered from those sources in his defense.

In Hatfill's Privacy Act suit, the government initially denied his legal team access to federal employees or officials on the grounds that their depositions could disrupt the "ongoing investigation" into the anthrax mailings. Given this roadblock, in February 2004, a judge gave his approval for Hatfill to subpoena journalists, but Hatfill's team, hoping the government would allow them access and hoping to avoid a confrontation with the press, waited until later that year to go forward with the subpoenas. In October, Hatfill sent out over a dozen subpoenas to news organizations including ABC, CBS, NBC, The Associated Press, Gannett, Newsweek, The Washington Post, the Baltimore Sun, and the Los Angeles Times.

Shortly after the subpoenas went out, the government reversed its earlier decision and allowed Hatfill's legal team to question government sources. Hatfill voluntarily withdrew his first round of subpoenas, but when federal officials refused to answer some of his questions, claiming a law enforcement privilege, he issued a new round of subpoenas to the same news organizations he'd pursued months before.

What happened?

In January 2007, a District Court judge dismissed Hatfill's case against Kristof and the New York Times Co. for a second time, ruling that Hatfill was a "public figure," a designation that makes it much more difficult to claim defamation. Hatfill's team has said that they will probably appeal the second dismissal.

Hatfill's suit against the government is essentially on hold. The subpoenaed reporters have agreed to testify but refuse to name any confidential sources, and Hatfill's team has not yet filed a motion to compel the journalists to reveal the leakers' identities.

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posted feb. 20, 2007; updated april 4, 2007

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