A federal judge said Tuesday he will hold a former USA Today reporter in contempt if she continues refusing to identify sources for stories about a former Army scientist under scrutiny in the 2001 anthrax attacks.
U.S. District Judge Reggie B. Walton said reporter Toni Locy defied his order last August that she cooperate with Steven J. Hatfill in his lawsuit against the government. Walton indicated he would impose a fine until she divulged her sources, but that he would take a few more days to decide whether to postpone the penalty as she pursues an appeal.
The judge is also considering whether to find former CBS reporter James Stewart in contempt.
“I will order she provide the sources of information,” Walton said during a hearing, as Locy, dressed in black, looked grim and slowly shook her head in disagreement.
“I don’t like to have to hold anyone in contempt,” the judge added, but when it comes to cases where a person says his reputation was destroyed because of stories published about him, “the media has to be responsible.”
Both Locy, also a former Associated Press reporter who now is a journalism professor at West Virginia University, and her attorney, Robert C. Bernius, declined to comment after the hearing.
Walton did not immediately indicate the amount of the fine. Hatfill’s attorneys have asked Walton to initially fine Locy $1,000 per day and to prohibit media corporations from paying the fines for her to force compliance. The proposed daily fine would increase to $2,000 after a week and continue to increase $1,000 every week.
Journalism group protests
In Stewart’s case, Walton said he would take a few weeks to consider the reporter’s claim that divulging his sources was no longer necessary since several law enforcement officials had already acknowledged talking to reporters in the case about information similar to what Stewart reported.
One reporters’ advocacy group called Walton’s move “an unjustifiable intrusion into the newsgathering process,” saying it illustrated the need for Congress to move quickly on a federal shield law. The House last October passed a measure that would back the right of reporters to protect the confidentiality of sources in most federal court cases, but the full Senate has yet to act on a similar measure.
“It’s a travesty that a journalist can be essentially bankrupted for doing her job. This case is also particularly offensive because they know who some of these sources were,” said Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press.
“I can’t even imagine the chilling effect this is going to have on reporters’ willingness to cover the next terrorist attack, or anthrax attack, or anything involving police,” she added.
Hatfill, who worked at the Army’s infectious diseases laboratory from 1997 to 1999, was publicly identified as a “person of interest” in the 2001 anthrax attacks. He is suing the Justice Department, accusing the agency of violating the federal Privacy Act by giving reporters information about the FBI’s investigation of him.
Five people were killed and 17 sickened by anthrax that was mailed to lawmakers on Capitol Hill and members of the news media in New York and Florida just weeks after the Sept. 11, 2001, terrorist attacks. After initially being identified as a “person of interest” in the investigation by then-Attorney General John Ashcroft, the case now remains unsolved.
Walton previously ordered five journalists to reveal all of their sources. Stewart and Locy refused, saying Hatfill was partly to blame for news stories identifying him as a suspect after his attorney provided details about the investigation.
During Tuesday’s hearing, Bernius also argued that Locy could not remember who gave her information specifically about Hatfill and that she should not be forced to disclose the names of roughly 10 FBI and Justice Department officials who spoke to her generally about the anthrax investigation.
That immediately drew a skeptical response from Walton.
“I’m not suggesting that Ms. Locy would not be truthful, but it would be convenient for reporters in this type of situation to say ’I don’t remember’ and then be off the hook,” Walton said. “That would be one way to avoid the serious consequences of the law.”
Walton’s move is the latest in a handful of cases nationwide, most notably in Washington, in which reporters have been held in contempt for failing to reveal confidential sources.
In 2004, U.S. District Judge Thomas Penfield Jackson fined five reporters $500 a day each for refusing to identify their sources for stories about Wen Ho Lee, a former nuclear weapons scientist once suspected of spying. After Jackson postponed the fines pending appeals, news organizations including The AP eventually agreed to pay Lee $750,000 as part of a $1.6 million settlement of his privacy lawsuit against the government based on their expectation the U.S. Supreme Court would decline to hear appeals in the case. The high court turned away the appeal after the settlement was announced.
More recently, last year nearly a dozen of Washington’s best-known journalists took the stand during the CIA leak criminal trial in Walton’s court. Several had been subpoenaed to testify before a federal grand jury in the case. One of them, New York Times reporter Judith Miller, was sent to jail for 85 days after refusing to disclose her sources as ordered by U.S. District Judge Thomas F. Hogan.
In the Hatfill case, the other reporters ordered to disclose sources were Michael Isikoff and Daniel Klaidman of Newsweek and Allan Lengel of The Washington Post. In court papers, Hatfill’s attorneys indicated that these reporters had cooperated in revealing information at least in part.