The country’s biggest and wealthiest news media corporations are paying hefty legal fees to participate in a court drama that literally puts American journalism on trial. Yet, inexplicably, their news and editorial pages and programs have reported scant little about it to their readers and viewers.
There’s hardly a person in America who doesn’t know last summer’s story about a judge in the District of Columbia who claimed he was owed $54 million in damages because a drycleaning establishment lost a pair of trousers.
But how many know that another judge in the nation’s capital has ordered a former newspaper reporter to pay a $5,000 per day fine—and the order stipulates that the money must come only from personal resources—until she divulges the identities of confidential sources who supplied information for articles she wrote as a USA Today staff reporter that included FBI and CIA anti-terror and counter-terror activities.
U.S. District Judge Reggie Walton, a Bush appointee who also sits on the secret Foreign Intelligence Surveillance Act court that approves FBI wiretapping warrants, ordered the fine last month after Toni Locy claimed she could not remember the source for a story that identified Army germ warfare scientist Steven Hatfill as a “person of interest” in the FBI’s investigation of the 2001 anthrax mailings that killed 5 persons. Locy, now a journalism professor at West Virginia University, further claimed that she routinely discarded her notepads.
Judge Walton’s demand goes beyond the case pending in his court, a claim by Hatfill that he is owed damages because the government violated his privacy rights. Even Hatfill’s own lawyers have acknowledged that the identity of Locy’s sources is not central to their case. And, they certainly have no interest in learning the identity of sources who were not involved in the anthrax stories.
Locy hasn’t been forced to pay the fine, at least not yet. The D.C. Circuit Court of Appeals suspended its collection pending the outcome of an appeal to Judge Walton’s order.
Late last week (March 28), a team of lawyers filed an amicus brief with the appeals court, arguing that Judge Walton’s contempt order against Ms. Locy is unprecedentedly harsh and disregards the Circuit Court’s own recognition of a constitutionally protected First Amendment privilege for journalists.
In their brief, 18 news organizations and 14 professional societies and trade associations argue that Hatfill’s interest in obtaining additional evidence to buttress his damages claim “cannot outweigh the public’s interest in protecting journalists’ abilities to report on matters as consequential as that at issue here: one of the largest, if not the largest, still-unsolved investigations in recent history into murders that terrified a nation.”
And, it adds:
“The compelled disclosure here is not even narrowly tailored to sources about Hatfill, but includes sources who all concede supplied no information about Hatfill, and thereby jeopardizes a lifetime of sources (which Locy) cultivated as a beat reporter. Stories like the recent Pulitzer Prize-winning reports exposing the black sites where the CIA detained high-value targets or the careless disregard of injured soldiers at Walter Reed Army Hospital only saw the light of day because the reporter spent years building credibility and confidence with sources.”
Judge Walton’s order that Locy use only personal funds to pay the daily fine is “nightmarish” and “utterly without precedent,” the amici argued.
If allowed to stand, the “personal funds only” order would “wreak substantial havoc in newsrooms, driving a wedge between reporters and their employers, and leaving reporters in fear of personal bankruptcy whenever they write stories requiring information from confidential sources.”
–Edward Zuckerman, Editor
