The Reporters Committee for Freedom of the Press
Reporter's Toolkit: Toni Locy contempt citation
(Update: 3/14, 5:00pm: The appeal has been expedited, and oral arguments will be heard Friday, May 9, 9:30 am
This memorandum is a call to arms to all American journalists from the Reporters Committee for Freedom of the Press.
Late Friday (3/14), U.S. District Court Judge Reggie Walton in Washington, D.C. issued an order holding former USA TODAY reporter Toni Locy in contempt for refusing to reveal confidential sources in the Hatfill/anthrax stories she wrote about five years ago.
Judge Walton denied Locy's request for a stay pending appeal to the DC Circuit and ordered that all fines must come out of her pocket: she will not be allowed to accept assistance in paying the fines. In a couple of weeks, the fines will accelerate to $5,000 a day and not even her own mother will be allowed to help her pay them. Her first payment is due at midnight tomorrow.
Gannett Co. filed a motion for an emergency stay of the contempt citation with the U.S. Court of Appeals for the D.C. Circuit on Monday, March 10. A coalition of about two dozen media companies and non-profit journalism organizations also filed an amicus brief in support of Locy the same day. Hatfill's response was filed Tuesday. The appeals court stayed the decision on March 11, and granted Hatfill's request for an expedited appeal on Friday, March 14.
Locy's brief was filed March 28, along with a separate amicus brief by media organizations including the Reporters Committee. Briefs for Hatfill and the U.S. government were filed April 11, and Locy's reply is due April 18. Oral arguments on the appeal will be held on Friday, May 9, at 9:30 am.
In the meantime, the Reporters Committee for Freedom of the Press urges you to pay attention to this case. Accordingly, we have prepared this memo as background as you write stories and editorials about this outrageous situation. Below you will find useful links to copies of court pleadings and orders, helpful background on the proliferation of subpoenas in recent years in the federal courts and information about the status of proposed federal shield laws in Congress.
We'd appreciate your help in impressing upon journalists, lawmakers, and the public that this situation is untenable. As always, the Reporters Committee stands ready to help you. We can be reached at 703-807-2100.
A few bullet points for you:
No judge has ever officially ordered that a reporter held in contempt may not accept reimbursement from an employer (or anyone else.) Read the Reporters Committee's list of recent contempt citations nationwide.
Ms. Locy has cooperated to a degree. But she can't remember who her specific sources were, so the judge has ordered her to reveal the names of up to a dozen confidential sources she routinely relied upon in the Justice Department (many of them who were sources for stories more sensitive than this one.) Read her declaration, deposition and legal brief challenging the contempt citation.
The fine (up to $5,000 a day) is punitive. If the judge wants to punish Ms. Locy, he should try her for criminal contempt and let a jury find that she willfully, intentionally and criminally forgot who her sources were for these stories. Read plaintiff Hatfill's motions for sanctions against Ms. Locy and former CBS News reporter Jim Stewart.
The judge's order can be interpreted as unjustly and unfairly coercing media companies to participate in settlements in federal Privacy Act cases. Because the media companies involved in the Wen Ho Lee case were willing to participate in a settlement with the government, one consequence of the judge’s order, whether intentional or not, could be an attempt to bring Gannett to the negotiating table to come up with part of the damages sought by Hatfill. Read a "White Paper" describing the threat to newsrooms of subpoenas in federal civil cases and a story describing the Wen Ho Lee settlement.
Some of the sources in this case have "self-identified." We know the Justice Department leaked the information. So what we're involved in here is essentially an effort to increase the financial settlement by trying to multiply the damages by keeping track of: (1) How many sources were involved, (2) How many times each spoke, and (3) How many different "facts" they revealed. Despite Hatfill’s aggressive pursuit of this theory, counsel for the reporters in this case say it has no basis in law.
This case is a prime example of why we need a federal shield law. You can read the bills that are pending in the Senate and that passed the House, as well as a memo prepared by the Newspaper Association of America that describes them. Last week, Senators Patrick Leahy (D-Vt.) and Arlen Specter (R-Pa.) urged Senate leadership to send the bill to the floor for a vote.
Journalists across the country need to cover this issue. To that end, we hope you will find the Reporters Committee's "Shields and Subpoenas" web page to be useful. You may also be curious as to how your own state handles subpoena issues; see The Reporters Committee compendium of state and federal reporters privilege laws.
The Reporters Committee continues to explore ways in which we can financially support Ms. Locy without violating the judge's order. We will keep you apprised of those efforts.