If the civil case is settled, the larger constitutional questions before court would be left unresolved.
At issue is what First Amendment privilege journalists may have, if any, to reject subpoenas in civil lawsuits demanding they reveal their sources of reporting.
If if does move forward, the case could serve to clarify conflicting legal standards over how the press deals with sensitive information it obtains.
Among the reporters fighting the subpoenas is Pierre Thomas, who was CNN’s justice correspondent in 1999.
Thomas reported extensively on the government probe of Lee, a onetime Energy Department scientist who worked at the federal nuclear research facility in Los Alamos, New Mexico.
Government officials, including then-Energy Secretary Bill Richardson, publicly named Lee as a target of a probe into the alleged theft of highly secret documents from the lab, and investigators suspected he was spying for China.
Lee was later cleared of espionage and nearly all the other serious charges.
After his release from prison, Lee sued the government under the Privacy Act, alleging officials leaked false and incriminating information to several reporters, including Thomas, who now works at ABC News.
Thomas and four other reporters were subpoenaed in 2002, and a federal district court ordered them to testify or face contempt charges.
A federal appeals court upheld the subpoenas against Thomas, James Risen of the New York Times, Bob Drogin of the Los Angeles Times, and H. Josef Hebert of The Associated Press. A similar subpoena against Jeff Gerth of the New York Times was dismissed.
In its ruling, the appeals court noted Thomas “refused to reveal the names or employers of the sources who gave information about the progress of the FBI investigation into Lee.”
It concluded, “This evidence is plainly sufficient to support the district court’s holding of contempt.”
Justice Roberts, over to you.