Aug. 14, 2007 · Rejecting arguments that the First Amendment and a federal common law privilege protects them from revealing their sources, a federal judge Monday ordered five journalists to disclose who gave them information about Steven Hatfill, the government scientist once under investigation for the 2001 anthrax attacks.
U.S. District Judge Reggie B. Walton in Washington, D.C., ruled that there was no other way for Hatfill to obtain the names of the government sources, which are central to his lawsuit alleging that the government improperly disclosed his personal information. Consequently, Hatfill’s need for the information outweighed the journalists’ First Amendment rights to protect their sources, Walton said.
“Thus far, Dr. Hatfill’s discovery efforts have revealed numerous leaks from government officials to the press regarding personal information about Dr. Hatfill, his status in the anthrax investigation, and the techniques used to investigate his possible involvement in the events related to the anthrax mailings,” Walton wrote. “However, all of his efforts have failed to reveal the names of the sources who leaked this information.”
Five journalists — Michael Isikoff and Daniel Klaidman of Newsweek; Allan Lengel of The Washington Post; Toni Locy, formerly of USA Today; and James Stewart, formerly of CBS News — now risk being held in contempt of court if they refuse to comply with the judge’s order.
Walton called Hatfill’s case “strikingly similar” to that of Wen Ho Lee, the Los Alamos nuclear scientist investigated for espionage in 1999.
Like Hatfill, Lee brought a claim against the government under the Privacy Act and subpoenaed journalists to find out who in the government had leaked them information. The journalists in the Lee case were held in contempt of court and heavy daily fines were assessed against them by the judge, though the fines were stayed while the reporters appealed. Lee eventually agreed to settle his claim, and in an unprecedented arrangement, the media companies that employed the journalists agreed to contribute money to the settlement.
In the Hatfill decision Monday, Walton refused to recognize a federal common law privilege for journalists to decline to reveal their sources.
Walton said doing so “would erect a potentially insurmountable hurdle for a Privacy Act litigant seeking to hold the government accountable for leaks condemned by the Act.”
In one bright spot for the media, Walton quashed Hatfill’s attempt to subpoena the corporate representatives of the media companies that employed the five journalists at the time of the leaks. Walton said such a move, which could ultimately subject the deep-pocketed companies to penalties, was premature at this stage when the information could be obtained directly from the reporters. If the reporters continue to refuse to reveal their sources, however, Walton said he would revisit this decision.
(Hatfill v. Gonzales) — NW