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Court of appeals to hear Locy arguments tomorrow

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  1. Protecting Sources and Materials
On Friday, the U.S. Court of Appeals in Washington, D.C., will hear Toni Locy’s appeal of a contempt finding that…

On Friday, the U.S. Court of Appeals in Washington, D.C., will hear Toni Locy’s appeal of a contempt finding that could impose crippling fines on the former USA Today reporter.

Former Army scientist Steven Hatfill first subpoenaed Locy as a witness in his Privacy Act suit against the government for naming him as a “person of interest” in its investigation into the 2001 anthrax mailings that killed five people and left 17 others injured. 

U.S. District Judge Reggie Walton informed Hatfill that he could not succeed on his claim without pinpointing specific sources within the government who released such information. Hatfill subsequently subpoenaed five reporters to ascertain the identities of the anonymous sources that named him in news stories about the investigation. His efforts turned up three sources – including two of Locy’s – who voluntarily released the reporters from their promises of confidentiality.

Locy cannot recall which other confidential sources, if any, provided additional information that specifically referred to Hatfill. Despite having three sources already come forward and claiming that they are already prepared to go to trial, Hatfill’s attorneys continued to doggedly pursue any additional sources Locy may have used in her reporting. 

In February, they succeeded in convincing Walton to find Locy in contempt for refusing to identify all of the confidential sources she used while reporting about terrorism-related stories, including those who did not mention Hatfill at all. Walton ordered Locy to pay escalating fines of up to $5,000 a day for her refusal to identify her sources. The contempt order also prohibited Locy from receiving assistance in paying those fines from any outside source, including her former employer.

In March, the appeals court granted an emergency stay of the contempt order pending her appeal.

In her appeal, Locy argues that the contempt order was overbroad in that it required the disclosure of confidential sources who were unrelated to Hatfill and that Hatfill’s attorneys have already conceded that her sources were not crucial to his case. Her attorneys further argue that a common law reporter’s privilege should have served as a basis to quash the subpoena Locy faced in the first place.

Hatfill’s attorneys contend that Walton properly exercised his discretion in issuing the contempt finding to compel Locy to testify and that the reporter’s privilege recognized in federal courts should not prevent Locy from identifying her sources.

The Reporters Committee joined 18 news organizations and 14 professional and trade organizations in submitting a friend-of-the-court brief in support of Locy. 

Specifically, the brief argues that the information that Hatfill seeks is not of the type that the Privacy Act protects and that Hatfill is simply hoping to add to already collected proof of the allegedly offending disclosures to pad his damages claim against the government. The brief further contends that the public’s interest in protecting a reporter’s sources and maintaining the free flow of information far outweighs any private benefit that Hatfill might enjoy by identifying Locy’s full slate of terrorism-related sources.

The court will hear arguments starting at 9:30 a.m.