NEWS MEDIA UPDATE · VIRGINIA · Confidentiality/Privilege · Oct. 25, 2006
New York Times ordered to reveal sources in anthrax case
Oct. 25, 2006 · A federal judge in Virginia has ordered The New York Times to reveal three confidential sources columnist Nicholas Kristof used to write columns about the deadly anthrax mailings that killed five people in 2001.
The order was issued Friday in response to a motion by lawyers for Steven Hatfill, a former Army scientist who was publicly named as a “person of interest” in the anthrax investigations.
Magistrate Judge Liam O’Grady ordered that the Times reveal the sources by Wednesday, but lawyers for the Times filed an emergency motion to stay the enforcement of the order until the appeal can be heard by the district judge. If that motion is successful, the case will go to U.S. District Judge Claude Hilton for review.
If the motion is unsuccessful, Times attorney David McCraw said the case will proceed. “When we are asked to reveal source,” he said, “we will decline to do so, and there will be a motion for contempt.”
Hatfill first sued Kristof and The New York Times for libel in July 2004, but a federal judge dismissed the lawsuit later that year. Hatfill appealed that ruling to the U.S. Court of Appeals in Richmond (4th Cir.), and the appeals court ruled that Hatfill did, in fact, have enough evidence to support his claim. The U.S. Supreme Court declined to review the decision, and the case was remanded to a lower federal court in Alexandria, Va., earlier this year.
Kristof was deposed in July but he refused to give the names of three of his sources. Two other sources gave him permission to reveal their identities.
Even though the case is in federal court because Hatfill and the Times are from different states, the state laws of Virginia will apply because Hatfill brought the suit there.
Although Virginia does not have a reporter’s privilege statute, the Virginia Supreme Court recognized a qualified privilege under the U.S. constitution in the 1974 case Brown v. Virginia. In that case, the court held that a reporter has the right to withhold the identities of confidential sources but that there are circumstances that might outweigh that right.
O’Grady wrote in the order that while “[c]onfidential sources have been an important part of journalism,” Hatfill “needs to acquire a full understanding of Mr. Kristof’s state of mind and verify the accuracy of the statements from the article” and “the information is central to this dispute and this relevant” under the balancing test.
McCraw said that this balancing test is often tipped in favor of the plaintiff in libel cases “because the evidence being sought often goes to the question of how the reporter gathered the information, what he heard and how he decided to put it in his story. It’s hard to win a balancing test without a shield law.”
If the newspaper is found to be in contempt of court, however, it is unlikely that anyone will be imprisoned because the motion is against a corporation, not an individual.
“Because it’s a civil case, it’s unlikely that any sort of incarceration would be involved,” McCraw said. “More likely, the result will be that the ruling will prevent the Times from making certain arguments at trial, or there may be monetary sanctions.”
Kristof is no longer named as a defendant.
Hatfill also sued former Attorney General John Ashcroft and other government officials in federal court in Washington, D.C. in 2003 under the federal Privacy Act over government leaks to the media about his status as a “person of interest.” Hatfill was never charged in the attacks but he lost his job as a government contractor and has remained unemployed, according to news reports.
(Hatfill v. The New York Times; Media Counsel: Jay Ward Brown, Levine Sullivan Koch & Schulz LLP, Washington, D.C.) — ES