A federal appeals court has come to the rescue of a journalist who faced financial ruin if she continued to shield her confidential sources from a scientist suing the federal government. That's good news. But the only reliable protection for reporters who rely (usually reluctantly) on anonymous sources is a federal reporter's privilege similar to those in two-thirds of the states.
Legislation in Congress to recognize such a privilege may have a better chance because of U.S. District Judge Reggie B. Walton's heavy-handed attempt to force Toni Locy, a former reporter for USA Today, to violate a core ethical principle rooted in the 1st Amendment. At issue are sources on which Locy relied in reporting on the investigation into anthrax attacks that killed five people in 2001. Steven J. Hatfill, a Justice Department biowarfare expert who for a time was a "person of interest" in the investigation, is suing his former employer under the federal Privacy Act.
Locy insists that she doesn't recall who in the FBI or the Justice Department confirmed that Hatfill was under investigation, but Walton has ordered her to disclose all of her confidential sources at Justice. Until she does, Walton ruled last week, Locy must pay out of her own pocket daily contempt-of-court fines that would increase from $500 the first week to $1,000 the second week to $5,000 thereafter.
On Tuesday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit stayed Walton's order during Locy's appeal, raising hopes that she might prevail. Even if she does, other reporters could be pressed to choose between bankruptcy and a violation of professional ethics. Until the Supreme Court reverses a wrongheaded 1972 holding that the 1st Amendment does not protect a reporter's privilege, protection must come from Congress.
Last week, Sens. Patrick J. Leahy (D-Vt.), the chairman of the Judiciary Committee, and Arlen Specter (R-Pa.), the ranking Republican, urged the Senate leadership to schedule floor action on the Free Flow of Information Act approved by the committee in October. The bill would require federal courts to recognize a qualified privilege for confidential sources -- one that could be overridden in a civil suit like Hatfill's when the information sought "is essential to the resolution of the matter." Even then, a judge would have to take into account both the public interest in compelling disclosure and the public interest in gathering news.
As we have observed, the question isn't whether reporters will protect their sources, it's whether they will devote time better spent on reporting the news closeted with grand juries or sitting in jail. Or in bankruptcy court.