AJR  Features
From AJR,   February/March 2008

Cries of Outrage   

Online Exclusive » A federal judge’s ruling requiring a former USA Today reporter to personally pay heavy fines for not identifying confidential sources stirs concern among journalists and First Amendment advocates.

By Kevin Rector

Come midnight Tuesday, the first $500 is due. In two weeks, the toll will go to $5,000 a day. Although friends, colleagues and supporters of former USA Today reporter Toni Locy can't help her pay the federal fines she faces for not revealing the identities of confidential sources, they can certainly express their outrage.

"I think it's despicable, shortsighted, unduly punitive, outrageous and unprecedented, and by far the clearest case we have to demonstrate why we absolutely must have a federal shield law," says Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press, which is helping to coordinate an effort among media organizations to file an amicus brief supporting Locy.

The fines were leveled against Locy by U.S. District Court Judge Reggie B. Walton in Washington, D.C., after he found her in contempt of court on February 19 for her refusal to identify confidential sources in her 2003 coverage of former Army scientist Steven J. Hatfill. Hatfill had been named a "person of interest" in the Justice Department's investigation of the post-9/11 anthrax attacks. Hatfill, who has not been charged in the case, claims in a suit against the federal government that officials who provided his name and other information to reporters violated the Privacy Act and irreparably damaged his reputation. He wants the names from Locy to bolster his case.

Walton set the fines at $500 a day for the first week, $1,000 a day for the second week and $5,000 a day afterward until she names her sources. And he is requiring Locy to pay them herself, without the help of USA Today, parent-company Gannett or anyone else. Walton cited fines levied in 2004 against reporters who refused to identify sources in stories about nuclear weapons scientist Wen Ho Lee. In that case, U.S. District Judge Thomas Penfield Jackson fined five reporters each $500 a day. He later postponed the fines and Lee received a $1.6 million settlement of his privacy suit against the government, including $750,000 from news organizations.

Toni Locy

On Friday night, Walton denied Locy's motion to stay payment of the fines until her appeal could be heard. Locy's lawyers at Nixon Peabody LLP, including Robert C. Bernius, on Monday appealed Walton's order to the U.S. District Court of Appeals in Washington.

Journalists and press advocates said they were riled and shocked by what they regard as the judge's heavy hand. "If this judge's decision stands, it means that reporters are going to have to have insurance," says Kathy Kiely, a friend and former colleague of Locy's and a USA Today reporter. "If people think that they're going to be faced with financial ruin for doing their job, it's going to be really hard for anyone to be a reporter anymore. This raises some very, very serious long-term implications for our business and our profession."

USA Today Editor Ken Paulson called the decision disappointing, saying that "if it stands, it will undercut the role of the free press in keeping an eye on government."

"We're accustomed to courtroom battles pitting protection of sources against national security issues, but that isn't what this is about," Paulson said. "It's tough enough for journalists to protect sources when they face potential jail time, but what we're talking about here is the loss of everything an individual has spent their entire life working for... That's just wrong. Journalists should not be forced to choose between principle and poverty."

Bruce Sanford, a First Amendment attorney, said it is quite unusual to have such tight restrictions on contributions to legal defense funds in criminal or civil contempt cases. "I think it's overbearing," Sanford said. "It's one thing to say her former employer can't pay it, but I don't understand where the judge has authority to say that her parents couldn't pay it or her friends or her supporters."

Dalglish, like Paulson, said she sees the fines as threatening everything Locy has. "I think ultimately, based on reporters I've talked to who have been in this situation, the thought of going to jail is not nearly as scary as losing practically everything you have built up through your whole life," Dalglish said. "We're in uncharted territory here. I mean, jail is jail, but this whole notion of having to pay fines out of your own pocket? Absolutely unprecedented."

Kiely brought up Locy's status as a media law and public affairs reporting professor at West Virginia University, questioning how Walton's ruling would be taken by Locy's students. "What kind of a message does this send to aspiring journalists? You're either going to have to have a sugar daddy or a huge insurance policy to be a journalist?"

Locy said she has been discussing her current situation with her students, who have expressed concerns about the government's ability to haul journalists to court. "They're young and it frightens them, and I'm standing there in front of them, and I'm in a position where I can't give them any comfort because I don't know what's going to happen because I've never seen anything like this in my career," she said. "I covered courts for most of my career, and I always had faith that eventually judges would sort it all out and make sense of the madness. I've had faith in the courts and I still do, but I would say that that faith has been shaken by what Judge Walton is doing."

Locy also says she believes that Walton acted in line with tactics more appropriate for criminal contempt cases than civil ones: "When he put that caveat [that I had to pay the fines personally] on that order, I really think he crossed the line from civil contempt to criminal contempt. My students can't even hold a bake sale for me. He's crossed the line into criminal-like punishment."

Aside from the financial straitjacket placed on Locy, Kiely said she was particularly appalled when she saw Walton "castigated Toni in his opinion for not saving her notebook," asking, "Does this guy have any idea what it takes to be a reporter?"

Kiely said she fills entire notebooks in one day while reporting stories and that the stories in question were from 2003--a year for which people no longer even have to keep their tax records.

Walton also rebuked reporters for poor note-taking when he presided over the obstruction of justice case of I. Lewis "Scooter" Libby, former chief of staff for Vice President Dick Cheney.

Dalglish said Locy's predicament underscores the urgent need for a federal law protecting reporters from being forced to identify their confidential sources. Such a law is awaiting consideration by the Senate after similar legislation passed the House last year. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking minority member Arlen Specter (R-Pa.), citing Locy's case, urged party leaders Thursday to consider the proposed legislation on the floor.

But until and unless a shield law is passed, Locy said, the ramifications of her case for reporters are enormous. "It could change journalism as we know it if this stands. If the Court of Appeals or the Supreme Court don't stop this, what do you think is going to happen?" she asked. "If you have news executives who are afraid of a blogger sitting at home in his underwear, how do you think they're going to feel about a lawyer coming at them in an Armani suit?"

Locy said she used a large number of sources in her reporting on multiple stories involving anthrax, including about a dozen in the FBI and the Justice Department, and is unable to determine the exact source she spoke with regarding Hatfill. Because of that uncertainty, Locy said, she would have to name not one but a number of sources to comply with the court. She said those sources could not be shielded by a protective order offered by Walton because it would not exclude the Justice Department from access to their names, and the Justice Department is precisely whom she must protect her sources from.

In a declaration opposing the motion for contempt, Locy pointed out that she had never heard of Hatfill until then-Attorney General John Ashcroft labeled him a "person of interest," a distinction that she addressed again during an interview. "I did not violate Steven Hatfill's privacy rights. John Ashcroft did that," she said, adding that she simply investigated the story after Ashcroft created it.

Locy said other facts in her stories that Hatfill claims violated the Privacy Act were discussed between her and Hatfill's attorney at the time, Tom Connolly. She said she represented facts accurately and even questioned the Justice Department's naming of Hatfill as a "person of interest," drawing compliments from Connolly for her fair writing. For Hatfill to say she is responsible for naming confidential sources who verified information given to her initially by Hatfill's own attorney makes no sense, she argued.

Said Paulson: "What's particularly remarkable about this case is that the two pieces that Toni wrote were not particularly [revealing]. They disclosed little about Hatfill beyond what the attorney general had already said. And, in fact one pointed out there was real question he was guilty of anything and raised the possibility that he was being made a scapegoat."

Kevin Rector is an AJR editorial assistant.