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Journalism on Trial


Journalism on Trial

February 21, 2008
Legal ReformOther

There are many ways to intimidate or silence journalists. One depressing tactic in this country is to jail them for refusing to divulge the names of confidential sources who have provided sensitive information for articles, or to turn over telephone logs, emails, memos or notebooks identifying those informants to whom reporters have pledged confidentiality. (I'm familiar with this approach, having spent 85 days in jail two summers ago for protecting such a source until he waived the pledge I'd given him.)

There may now be an alternative: bankrupting reporters who refuse to comply with subpoenas and court orders.

On Tuesday, U.S. District Court Judge Reggie Walton—the same Judge Walton who presided over the Scooter Libby trial—found Toni Locy, a professor of journalism at West Virginia University and a former USA Today reporter, in contempt of court. She'd refused to divulge her sources for two articles she wrote about Steven J. Hatfill, a former Army scientist once at the heart of the government inquiry into the anthrax letter attacks of Oct. 2001, which killed five people.

Dr. Hatfill, long under suspicion but never charged with any crime, has sued the government for allegedly violating his privacy by leaking information about him and the investigation to the press. Ms. Locy is one of five reporters he subpoenaed to identify those anonymous government sources who he says ruined his reputation and career. (The anthrax case itself is unsolved.)

Judge Walton said he might fine Ms. Locy $500 a day for seven days, $1,000 a day for the following seven days, and $5,000 a day for the seven days after that if she continues to refuse to cooperate. In all, she could accumulate more than $45,500 in fines. What's more, Judge Walton may bar her former employer, USA Today, or any other individual or news organization from helping her pay, as Dr. Hatfill's lawyer has requested.

USA Today is paying for her legal fees, as the New York Times paid mine. But the case could go on and on—perhaps far longer than the investigation itself, now in its seventh year. If she still balks, she could also be jailed.

Court papers filed by Ms. Locy show she's already identified two sources who waived the confidentiality pledge she gave them. They also show it was Dr. Hatfill's own lawyers who provided some of the tips she pursued. Beyond these individuals, Ms. Locy insists she kept no notes of her conversations and remembers no one who specficially talked about Dr. Hatfill. But she refuses to name an entire catalog of individuals—some 10 FBI and Justice Department officials—who might have given her general information about the anthrax inquiry.

Judge Walton has suggested that her memory lapse may be all too "convenient" and a ruse to get her "off the hook." But journalists who investigate high-profile, high-pressure stories and talk to scores of officials and experts in search of information, see his conclusion as at best ill-informed about how journalists work, or at worst a fishing expedition into a reporter's sources.

I share Judge Walton's desire for justice for Dr. Hatfill, whose life is in ruins due to official and leaked statements about him that have not been substantiated. But why should Ms. Locy and independent journalism pay the price for former Attorney General John Ashcroft's reckless statement in 2002 that Dr. Hatfill was a "person of interest" in the anthrax inquiry? As Ms. Locy reported at the time, this was a non-legal category Mr. Ashcroft apparently invoked to imply progress in an investigation that was even then all but stalled.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said that if Judge Walton fines Ms. Locy for refusing to identify sources who had nothing to do with Dr. Hatfill's dire predicament, "it will be very risky for future journalists to write anything about a suspect who has not already been arrested and indicted."

There is a remedy. Last fall, the House of Representatives approved, by a veto-proof majority, a bill that would protect the identity of confidential sources—unless the information is needed to prevent terrorism, imminent death or significant bodily harm, or involves certain trade secrets, health or financial information, or classified information whose release would cause "significant harm." None of these exceptions would apply in Mr. Hatfill's case.

The Senate version of the bill would compel a reporter to identify a source in a civil lawsuit like Dr. Hatfill's only if the testimony or information being sought is "essential to the resolution of the matter." Since several sources whom journalists relied on have already come forth, and since Mr. Ashcroft is basically responsible for this mess, Dr. Hatfill's case can be resolved without Ms. Locy's information, or her insolvency. I urge the Senate to act now.