USA TODAY — Our view on your right to know: Judge forces reporter to pick between sources, bankruptcy

• By: ASNE staff
• On: 03/18/2008 10:57:20
• In: Shield law editorials

Ruling sends chilling message to journalists, whistle-blowers

USA TODAY
March 10, 2008

Few would argue against the idea that a free press is essential to democracy. Who else will keep watch on government and other powerful interests? But if one judge in Washington has his way, you can bet the public will be seeing less such journalism.

On Friday, U.S. District Judge Reggie Walton ordered former USA TODAY reporter Toni Locy to reveal the names of confidential sources or pay more than $45,000 in fines. He required, outrageously, that she pay them without any help from others, including the newspaper that published the stories. More may come later. On top of that draconian and perhaps unprecedented ruling, Walton refused to give Locy time to appeal. That, too, is unusual. Locy's crime? Keeping her word to sources so that readers could learn what those sources only dared disclose privately.

The case stems from incidents that began in 2001, when a series of mysterious anthrax attacks killed five citizens. In 2002, then-attorney general John Ashcroft publicly identified a former government scientist, Steven Hatfill, as "a person of interest" in the federal anthrax investigation.

Hatfill, who denied any involvement, was never charged, and the anthrax killings remain unsolved. But in 2003, Hatfill filed suit against the FBI and Justice Department, charging that they damaged his reputation by leaking private information. Locy and other reporters were subpoenaed and ordered to give up their sources. Locy named two after getting their permission. But she has refused to reveal more names of people she talked to about the anthrax case generally. She says she can't recall whether they even mentioned Hatfill, hardly surprising since the interviews occurred five years ago.

But this much is unforgettable: After the unsettling anthrax attacks, Americans were hungry for details of the government's investigation. Only by promising confidentiality was Locy able to provide that information.

To be sure, responsible news organizations should identify sources whenever possible. It enhances credibility. But it's also true that some stories won't get told if whistle-blowers fear retaliation. If they believe they will be exposed by overzealous judges, the public will not get the information.

Yet in recent years, federal judges have increasingly sent reporters to jail and ordered their employers to pay millions of dollars in fines.

In Locy's case, the judge's aggressiveness is unnecessary. Hatfill already has the names of several sources, including Ashcroft, who gave information to the press.

The best solution is a federal "shield" law that would prohibit judges such as Walton from forcing journalists to reveal sources, except in rare cases, such as when it's vital to national security and can't be found via other means. A bipartisan Senate measure, awaiting a vote, would do just that. The House has passed a similar bill. Both follow logic used by more than 30 states that grant reporters a similar privilege in state courts.

Opponents contend a shield gives journalists unique privilege. It doesn't. A journalist who witnesses a crime could not shirk his duty to report it. The shield is akin to laws that let people speak privately with lawyers or psychotherapists.

If the public interest is to be served, people must be able to speak to the press without fear of reprisal. That's the principle Locy is upholding. And that's the principle that Walton is jeopardizing by ordering Locy to make a life-altering and unfair choice keep her word and go bankrupt or sell out sources to whom she promised protection.