WASHINGTON -- In the second legal setback for the news media in two days, a federal appeals court upheld civil contempt findings yesterday against four journalists whose confidential sources pointed to scientist Wen Ho Lee as a possible spy.
Lee, who was exonerated of any espionage-related allegations, has sued over his treatment by the government. His lawyer wants the reporters to reveal their sources to help in Lee's lawsuit. The judge has cited them for contempt of court for refusing and has ordered fines of $500 per day, though the penalty has been placed on hold while appeals are underway.
The identity or identities of the reporters' sources ''goes to the heart" of Lee's case, a three-judge panel of the US Court of Appeals for the District of Columbia Circuit ruled.
The reporters are H. Josef Hebert of the Associated Press, James Risen of The New York Times, Robert Drogin of the Los Angeles Times, and Pierre Thomas, formerly of CNN and now of ABC. The appeals court reversed a contempt finding against New York Times reporter Jeff Gerth, saying it had been based on insufficient evidence.
AP said it would seek a further appeal to the full nine-member court. A lawyer for Thomas said no decision had been made on further appeals.
The decision was the latest in a string of legal setbacks for journalists seeking to keep sources confidential.
On Monday, the Supreme Court declined to take up the case of New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper. The two face jail time for refusing to reveal their sources to a federal grand jury. In that case, a federal prosecutor is conducting a criminal investigation into which White House official leaked the identity of CIA officer Valerie Plame.
Those two news organizations said they have filed court papers seeking a hearing today before Thomas Hogan, the federal district judge in Washington who held the reporters in contempt in October.
Those court filings indicate that lawyers for the journalists want to raise new arguments that might forestall the possibility of jail, as well as ''personal and medical considerations" that the court should consider in imposing ''suitable" confinement should those arguments fail.
Last year Rhode Island TV reporter Jim Taricani was sentenced to home confinement after he refused a court order to reveal the confidential source of an undercover FBI videotape of an alleged bribe. He served four months.
In the latest case, AP chief executive Tom Curley said no criminal issue is at stake and journalists should not be forced to identify sources to help support Lee's view in a private lawsuit.
''Joe Hebert's ability to protect the identity of his confidential sources is critical to his effectiveness as a journalist," Curley said. ''Sources with important information will not come forward unless they can trust a reporter's pledge to keep their identity under wraps."
New York Times publisher Arthur Sulzberger Jr. said the ruling went to the heart of the First Amendment and the free flow of information to the public. He also said many individuals named by Lee's attorney as potential sources had not been questioned.
The Los Angeles Times said people who file civil suits should not be granted the power to order reporters to break their word to confidential sources.
Lee's name surfaced in the news media during a political controversy in 1999, when Republicans accused the Clinton White House of ignoring China's alleged theft of US nuclear secrets.
Lee was fired from Los Alamos National Laboratory in New Mexico. Indicted on 59 felony counts alleging he mishandled nuclear weapons information, he pleaded guilty to one charge after spending nine months in solitary confinement.
His treatment drew an apology from a federal judge, who said the case had embarrassed the nation and every citizen.
Some legal experts see the courts as becoming increasingly hostile to the news media, although others warned not to read too much into the recent decisions.
''I think it's a terrible mistake to generalize about two tough cases for the press and think the world is coming to an end," said attorney James Goodale. ''The press has fought hard here and these cases are a lesson for the press to keep on fighting. If reporters have to give up their time and go to jail, they should be treated as heroes."
Goodale is the architect of the largely successful legal strategy the news media has employed since a landmark 1972 Supreme Court ruling went against a Kentucky reporter trying to protect his sources. Goodale noted language by Justice Lewis Powell that reporters have a qualified privilege and persuaded his fellow lawyers to get that language adopted state by state.