A three-judge panel of the U.S. Court of Appeals in Washington D.C. questioned whether it ought to uphold the potentially crippling fines assessed against former USA Today reporter Toni Locy for her refusal to identify the confidential sources she used while reporting on terrorism issues.
Locy became embroiled in the dispute when former Army scientist Steven Hatfill subpoenaed Locy in his Privacy Act lawsuit against the federal government. Hatfill contends that the government violated the act by identifying him as a “person of interest” in their investigation into the 2001 anthrax attacks that killed five people and left 17 others injured.
Hatfill has already identified three sources – including two of Locy’s – during the discovery period of his civil suit. Nevertheless, he has maintained his dogged pursuit of the additional sources Locy relied on in her stories covering the investigation. Locy has testified in depositions that she does not remember who provided her with the information specifically on Hatfill. Rather, she can only recall a universe of approximately a dozen sources she used while reporting on bioterrorism issues.
In February, U.S. District Court Judge Reggie Walton found Locy in contempt of court for refusing to identify all of those sources, even though some, or even all, of them may not have provided Locy information about Hatfill. Locy faces fines of up to $5,000 a day if the court of appeals upholds the contempt finding.
At the hearing on Friday, Judge Douglas H. Ginsburg questioned whether Hatfill could meet the minimum requirements demanded by the circuit’s First Amendment test which allows for subpoenas only when the information sought is crucial and goes to the heart of the claim, largely based on his own statements that they are already prepared for trial.
“You’ve said that you’ve got enough to go to trial. You think you can win,” Ginsburg said to Chris Wright, Hatfill’s attorney. “So why is more evidence critical to the case? That seems to be a contradiction.”
Judge Brett M. Kavanaugh questioned both attorneys as to whether there ought to be even stronger protections for journalists than the qualified privilege already recognized in the circuit. Instead, Kavanaugh suggested that the time may be ripe for an absolute common law privilege for journalists, similar to the one afforded to psychotherapists by the Supreme Court.
Kavanaugh contended that leaving the existence of the privilege up to the “vagaries of a balancing test” applied by a “random district court judge” would do little to encourage and protect the communications between sources and journalists.
He added that there has been a material change from the time the Supreme Court rejected an absolute common law privilege in the early 1970s: 49 states have established either legislative or judicial rules protecting reporters from subpoenas. Given that the court looks to the states for guidance when establishing common law evidentiary privileges, that change could indicate that the current landscape demands an absolute privilege.
Responding to questioning from the third judge on the panel, Judith W. Rogers, Locy’s attorney Robert Bernius said that Walton’s proposed solution of issuing a protective order would raise serious logistical and policy questions.
Bernius was most troubled that at least some of Locy’s sources continue to work at the Department of Justice, a named party in the underlying suit.
Bernius noted that, if identified, those sources would need to seek outside legal representation for their subsequent deposition and could arise suspicions if they needed to ask for time off to testify. He added that representatives from the Department of Justice – the exact people that the sources would need protection from – would be present at the deposition.
In sum, Bernius said, a protective order would contradict the stated goals of the privilege.
“This privilege was adopted to protect the flow of information to the public and to encourage sources to come forward,” Bernius told the panel.
Leaving the courthouse, Locy said that she was “encouraged” by the morning’s hearing.
“I just wanted to get my day in court,” Locy, now a journalism professor at West Virginia University, said, adding that she thought the judges asked good questions during the oral argument.