In light of the drastic contempt sanctions imposed on former USA Today reporter Toni Locy today, The Reporters Committee for Freedom of the Press calls on Congress to quickly pass the reporter’s shield bills that have been progressing through the House and Senate.
U.S. District Judge Reggie Walton today found Locy in contempt of court for failing to cooperate in former Army scientist Steven J. Hatfill’s Privacy Act suit against the government. His written order imposing the sanctions he outlined orally in court is expected to be filed in the coming week.
Locy faces escalating fines for her refusal to identify sources for her story about the federal government’s investigation of Hatfill. She will be fined $500 a day for seven days, $1,000 a day for the following seven days, and $5,000 a day for the seven days after that. In all, she could accumulate more than $45,500 in fines over the 21-day period. Walton is also considering whether to order her to pay the fines herself, with no assistance from Gannett Co., owner of USA Today, or anyone else.
“Of all the federal court sanctions on reporters for refusing to reveal confidential sources over the past several years, this is perhaps the most disturbing,” said Lucy A. Dalglish, Executive Director of the Reporters Committee. “Toni Locy is being punished for doing what reporters are supposed to do: making sure important information gets to the public about whether the government had the investigation into a major public health threat under control. We ask the U.S. Senate to take up the Free Flow of Information Act as soon as possible,” Dalglish said.
“Toni Locy faces possible financial ruin for doing her job, and doing it well,” Dalglish said.
Locy was one of five reporters Hatfill subpoenaed while trying to track down anonymous government sources who had identified him as a “person of interest” in the investigation into the 2001 anthrax attacks. Without identifying the source of those disclosures, Walton said, Hatfill cannot proceed with his suit against the government for releasing information about the investigation.
Since being subpoenaed, Locy has maintained that she does not remember the specific sources who identified Hatfill, but rather only a catalog of those who gave her information about the investigation generally. She no longer works for USA Today.
If Congress is able to get a shield bill through both houses and signed by the president, it should help Locy avoid the contempt sanctions. A bill has already passed the House, and the Senate Judiciary Committee has passed a similar bill, although that has not gone to the Senate floor yet.
Under the House bill, H.R. 2102, Sec. (2)(a)(3), the identity of a confidential source is protected unless it meets one of four specific exceptions, relating to: prevention of acts of terrorism, (2)(a)(3)(A); prevention of imminent death or significant bodily harm, (2)(a)(3)(B); certain trade secrets, health information, or financial information, (2)(a)(3)(C); and, classified information that will cause significant harm, (2)(a)(3)(D). None of those exceptions apply to the Hatfill case.
Under the Senate bill, S. 2035, the identity of a confidential source can only be compelled in a civil lawsuit if “the testimony or document sought is essential to the resolution of the matter,” Sec. (2)(a)(2)(B). A number of the sources used by journalists in the Hatfill story have already come forward, and the case can be easily resolved without Locy’s information, particularly because she has testified that she cannot specifically recall which of her many sources might have given her specific information that violated the Privacy Act.
Additionally, Sec. (2)(a)(3) of the bill requires that before a journalist can be compelled to reveal a source, a federal judge must determine “that nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information.” Again, since Hatfill has already obtained information regarding information released by government officials, there is little or no public interest in compelling a reporter to release more information, and the public interest in allowing reporters to cover government actions in something as critically important as an anthrax attack should easily outweigh the interest in disclosure.
At least 13 news media subpoenas have been served in this case, including to reporters from ABC, CBS, NBC, The Associated Press, The Washington Post, Newsweek, the Los Angeles Times, and Baltimore Sun. Most of those were withdrawn after either the government made sources available for depositions or the reporters’ sources came forward. Walton today also delayed ruling on contempt sanctions again former CBS reporter James Stewart. Stewart has already identified three anonymous sources who granted him a waiver of his promise of confidentiality but refuses to identify any additional sources, saying they are no longer necessary for Hatfill to continue his case.