New York Times — Squeezed by the courts (opinion)

By Clark Hoyt, public editor
The New York Times
April 20, 2008

The push for a federal shield law to help journalists protect the identities of confidential sources got a big boost last week when John McCain, the Republican presidential candidate, endorsed it in Washin

By Clark Hoyt, public editor
The New York Times
April 20, 2008

The push for a federal shield law to help journalists protect the identities of confidential sources got a big boost last week when John McCain, the Republican presidential candidate, endorsed it in Washington at a convention of the nation’s newspaper editors and publishers.

The Democratic candidates, Hillary Clinton and Barack Obama, are also on board, and supporters of the proposal, which is strongly opposed by the Bush administration, are optimistic that success is near. The bill awaits Senate action after the House passed its version last October by a vote of 398 to 21.

Times reporters have had more than their share of recent court struggles to protect confidential sources, the latest being James Risen, who is fighting a grand jury subpoena for testimony involving a 2006 book he wrote on the C.I.A. But the journalist in the most immediate jeopardy is Toni Locy.

Locy, a former reporter for USA Today, is facing the choice of personal financial ruin or surrendering the names of as many as a dozen sources who might or might not have given her information about Steven J. Hatfill, a “person of interest” in the investigation of the 2001 anthrax attacks that killed five people, injured 17 and terrorized the nation. It. is not clear that a federal shield law can arrive in time or in a form to help her.

Hatfill, a former government researcher who specialized in germ warfare, is suing the Justice Department and the F.B.I. because he says leaks to the news media about the anthrax investigation violated the federal Privacy Act and destroyed his reputation. (He also filed a defamation suit against The New York Times for columns by Nicholas D. Kristof that first identified him only as “Mr. Z.” The trial judge dismissed that suit, and Hatfill is appealing the decision.)

United States District Judge Reggie B. Walton has ordered Locy to identify her sources or pay heavy fines, escalating to $5,000 a day. He has decreed that no one can help her with them not USA Today, her family or her students at West Virginia University, who had offered to organize a bake sale. Locy teaches media law and public affairs reporting and will be moving this fall to Washington and Lee University.

“I really do love the law,” she told me, even as she faces the prospect of bankruptcy at its hands. Locy said she has little equity in the three-bedroom home she bought last year, her first, and is making car payments on a 2007 Nissan Murano. Her savings have been drained to help pay medical expenses for a niece with a serious birth defect, and all that remains is a 401 (k) retirement plan that would be wiped out in little time under Walton’s order. She said she is not sleeping well.

A federal appeals court stayed the fine and is scheduled to hear arguments on the case on May 9.

Locy covered the Justice Department for USA Today from 2000 through 2005. The newspaper’s editor, Ken Paulson, described her as “a tenacious and hardworking reporter.”

In May 2003, she was asked to write an update on the anthrax case, which was then two years old and still unsolved, as it remains today. The news media had already reported that Hatfill was a focus of the investigation, that his apartment had been searched three times and that he had failed lie detector tests. Attorney General John Ashcroft had gone on “The Early Show” on CBS the previous August and identified Hatfill as “a person of interest,” a designation that has not been removed by the Justice Department, even though no charges have been brought against Hatfill in all the years since.

Locy wrote skeptically about the investigation, comparing Hatfill to Richard Jewell, the former security guard who was wrongly implicated in the bombing at the 1996 Atlanta Olympics. She said that investigators but not all of them believed Hatfill was behind the anthrax attacks. Two unidentified sources said the evidence against him was largely circumstantial.

Locy said that she talked with one of Hatfill’s lawyers before writing the article and that he praised it afterward as fair coverage, never raising Privacy Act problems because of what the unidentified sources had told her. As her desk became cluttered, she said, she tossed away her notes. Today, she said, she cannot remember who told her what about Hatfill.

Judge Walton has criticized Locy for not keeping her notes, as though she should have anticipated a lawsuit and that she would be called to testify. At a hearing in February, he also seemed skeptical that Locy could not remember five years later what her sources had said. “I’m not suggesting that Ms. Locy would not be truthful,” he said, “but it would be very convenient for reporters in this situation to just say, ‘I don't recall.’”

Locy said she had 10 to 12 sources at the Justice Department and the F.B.I. who talked with her about the anthrax investigation and about many other stories she covered during her four years on the beat. Walton said she had to identify all of them so that Hatfill’s attorneys could question them about whether they gave her information about their client. The judge then imposed the stiff fines to coerce her. Her lawyers argue that they amount to unlawful punishment because she has not been found guilty of criminal contempt of court.

Two of Locy’s sources did agree to come forward, and they said they could not remember what they had told her.

Locy’s lawyers contend that Hatfill does not need her sources, saying his lawyers told the judge in January that they were ready to proceed to trial and believed they had a strong case. Mark Grannis, a lawyer for Hatfill, said Locy’s sources were important but that getting a trial this year, before memories fade even more, was more important than waiting out a long fight to get her to give up the names.

There are two competing interests here: the right of an individual who believes he has been wronged to sue for damages, and a reporter’s need to keep promises of confidentiality to sources who provide information for stories of vital public interest. If something close to the House version of the shield law were to become reality and be applied to this case, Locy would be off the hook, because the reporter’s privilege in most civil cases like Hatfill’s would be absolute. But the Senate might include a balancing test to let a judge decide which interest was more compelling in each case meaning Locy could still be in hot water. Walton said he thinks government employees should be fired for talking about a criminal investigation.

In the end, whatever damage was done to Steven Hatfill’s reputation was not done by Locy’s articles, played inside USA Today long after he was swept up in the case by intense media coverage and the attorney general’s statement. Hatfill can still have his day in court without her sources. Breaking Toni Locy to set an example for journalists and as a warning to government officials not to talk confidentially with reporters sends exactly the wrong signals in an era of increasing government secrecy. Her case is a powerful argument for a federal shield law.