BROOKE GLADSTONE: This week saw the end of an even longer saga, that of scientist Wen Ho Lee. The Taiwanese-American was working at the Los Alamos National Laboratory when he was accused of stealing nuclear secrets for China. He was fired in March of 1999, and The New York Times published an incriminating story, followed by more stories in The Times and elsewhere. Lee was arrested and held in solitary confinement for 278 days. Eventually, he pleaded guilty to one felony count of improperly downloading restricted data. The other 58 counts were dropped. Lee sued the Energy Department and the FBI, among others, for harm to his reputation caused by the leaks to the press, but to win his case, he needed the names of the leakers, which is why subpoenas were served to the New York Times, the Washington Post, the Los Angeles Times, ABC News and the Associated Press. Ultimately, the news outlets chose to pay a combined settlement of 750,000 dollars, the government shelled out 895,000, so now, Lee's nightmare is over. Not so the news outlets, especially since this week, the Supreme Court declined to consider whether the reporters' privilege to protect sources should extend to civil suits like Lee's. University of Minnesota media law professor Jane Kirtley is stunned by the media's preemptive payout. She says she's never known a news organization to buy its way out of a subpoena when it's not even a party to the case.

JANE KIRTLEY: I think that this does present a very real possibility that in the future we're going to have litigants who will use this precedent. Granted, it's not binding legal precedent, but they will use the fact that journalists were prepared to do this as a way to get money.

BROOKE GLADSTONE: What do you think the news organizations should have done in this case?

JANE KIRTLEY: This is one of these things that is going to alienate me from most of my other media lawyer friends, but my answer to the question is that I think in this circumstance, the news organizations really had no choice but to either go to jail or pay the fine, if that was what the court imposed. Or the journalists would have to go back to their sources and see if the sources would release them from their promises of confidentiality. I would assume that they did make those requests and that they were turned down.

BROOKE GLADSTONE: So basically you're saying these reporters should have been willing to go to jail to stand up for the reporters' privilege to keep their sources confidential.

JANE KIRTLEY: I know that that sounds somewhat harsh. It sounds extremely harsh. But I think that the promise of confidentiality is one that should not be given lightly.

BROOKE GLADSTONE: And they kept their promise. They merely paid to keep it, that's all.

JANE KIRTLEY: Buying your way out of it is, to me, troubling. You know, one of the things that we used to worry about 15 years ago was people doing end runs around the Constitutional protections of The New York Times versus Sullivan case that protects journalists from being sued from libel in most situations. I think this is the new end run around Constitutional protections for the press. You don't even have to file your libel suit. You're going to be able to get money from the press simply by subpoenaing them and then waiting for them to buy you off.

BROOKE GLADSTONE: Until the money runs out.

JANE KIRTLEY: Until the money runs out, and, of course, that's always the problem here. Judges now seem more inclined to levy fines. I mean, when you start fining the press, then there become really significant financial concerns which a big news organization has to think about, especially one that’s publicly traded. It's one of the more troubling aspects of all of this.

BROOKE GLADSTONE: You know, there's something else about journalistic practice that unites the Hatfill case, the accused anthrax doctor who turned out not to be, and the Wen Ho Lee case, and also the case of Richard Jewell, the so-called Atlanta bomber that wasn't. And that is the reporters in all those cases were relying on law enforcement, either named or anonymous, for their information, and law enforcement had their own reasons for supplying information that hadn't thoroughly been checked out.

JANE KIRTLEY: There's no question that the over-reliance on governmental sources, particularly law enforcement sources, is a really pernicious practice. Not only does it leave a journalist vulnerable to being manipulated, it also, to my mind, raises serious questions about fairness. Because oftentimes, the lawyers who are representing criminal defendants are constrained by ethical rules about what they can say, whereas the government and law enforcement generally takes the position that they can say anything they want. And leaks coming from law enforcement, I think, are equally, if not more, problematic. So if there's any cautionary tale that comes out of this, it's certainly that journalists should be very careful about leaving themselves open to that kind of manipulation.

BROOKE GLADSTONE: But once they have been manipulated, what's the solution? How do we keep reporters out of jail for simply reporting, and protect their employers from having to pay either contempt charges or settlement money?

JANE KIRTLEY: Well, there are two options. One is to get a federal shield law. But let's face it, the reality is that for most members of Congress, this is still viewed as special interest legislation. And unless you can appeal to either their commitment to the First Amendment or their self-protection, because so many of them are leakers, too, I'm not really convinced that they're going to move forward with any speed on enacting this law. The other would be to try to convince the judiciary that there really is a strong reason to provide journalists with protection that other people don't have. One of the things that has happened in the last three or four or five years is that we've seen greater skepticism on the part of the judiciary. They don't seem to see the role of the press as uniquely contributing to our democratic process. So until we get some judges that feel that way, I think the only real recourse we have is with Congress.

BROOKE GLADSTONE: All right. Jane, thank you very much.

JANE KIRTLEY: Thank you, Brooke.

BROOKE GLADSTONE: Jane Kirtley is a professor of media law and ethics at the University of Minnesota. [MUSIC UP AND UNDER]

BOB GARFIELD: Coming up, when grass roots are not enough, Democrats cultivate the "netroots."

BROOKE GLADSTONE: This is On the Media from NPR.