Two federal district judges have ordered six journalists to disclose their confidential government sources in Dr. Steven J. Hatfill’s federal Privacy Act lawsuit against the government.
In 2001, the Federal Bureau of Investigations (FBI) and Department of Justice targeted Hatfill, a bioterrorism expert, in an investigation into deadly anthrax mailings. Hatfill’s suit, filed against the government in 2003 under the Privacy Act, 5 U.S.C. section 552a, alleges that sources in the FBI and Justice Department illegally disclosed disparaging details about him in “a coordinated smear campaign” during the investigation.
The reporters have thus far cited a qualified reporter’s privilege under the First Amendment and under federal common law in declining to reveal the government sources who provided them with information about Hatfill. Although they are not parties to the underlying suit, the reporters may face contempt sanctions such as fines or jail time if they continue to refuse to comply.
On Aug. 13, 2007, D.C. District Court Judge Reggie B. Walton granted Hatfill’s motion to compel further testimony from Michael Isikoff and Daniel Klaidman of Newsweek; Allan Lengel of The Washington Post; Toni Locy, formerly of USA Today; and James Stewart, formerly of CBS News.
A month later, Judge Alvin Hellerstein of the U.S. District Court for the Southern District of New York granted a similar motion regarding ABC News’ Brian Ross, according to a September 28 story in the New York Sun. The litigation involving Ross’ sources is proceeding separately in New York because of jurisdictional issues, said the Sun.
Hellerstein’s order said that Hatfill’s interest in learning the sources’ identities overcame the First Amendment privilege that protects reporters from testifying about sources, according to the Sun.
Since Judge Walton’s order was handed down, two of the sources have come forward and identified themselves, according to the Sun, which cites a letter filed by Charles Kimmett, a lawyer for Hatfill. The letter identifies the sources only as former Justice Department employees; it does not say to which reporters they spoke.
On October 2, Hatfill filed motions in the D.C. District Court to hold Locy and Stewart in civil contempt. Memoranda attached to the motions say the reporters “willfully disobeyed a clear and specific order which was clearly known to and understood by [them].”
In his August 13 order, Judge Walton declined to recognize a reporter’s privilege, saying that even if he were to recognize one, allowing it to extend to the Privacy Act would be “inappropriate,” because it would leave Privacy Act violations “immune from judicial condemnation” without deterring potential leaks to reporters.
Walton drew comparisons between Hatfill’s suit and Lee v. Department of Justice, 413 F.3d 53 (D.C. Cir. 2005), which he said “provides direct and unequivocal guidance and instruction for the Court’s assessment of whether Dr. Hatfill’s motion to compel should be granted.”
Wen Ho Lee, a scientist for the Department of Energy, was the subject of a highly publicized investigation by the FBI and Justice Department on suspicion of espionage on behalf of the People’s Republic of China. Lee was eventually cleared of all but one of the 59 charges levied against him, but he sued the investigating agencies under the Privacy Act, saying they had illegally leaked information about him to the media. The D.C. Circuit Court of Appeals upheld Lee’s subpoenas of journalists in order to find the sources of the agency leaks.
In 2006, just before the U.S. Supreme Court denied certiorari in the case, Lee reached an unusual settlement agreement with the government and five media organizations involved and was paid $1.65 million. (See “Settlement Reached in Wen Ho Lee Privacy Case” in the Spring 2006 issue of the Silha Bulletin.)
The U.S. Supreme Court refused to recognize a reporter’s privilege under the First Amendment in the context of grand jury investigations in Branzburg v. Hayes, 408 U.S. 665 (1972). Judge Walton quoted the same section of Justice Byron White’s majority opinion in Branzburg as did the courts in Lee v. Department of Justice and In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, (D.C. Cir. 2005):
“The Supreme Court has noted in the context of privilege in grand jury cases that it ‘cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it,’” Walton wrote.
- Patrick File, Silha Fellow and Bulletin Editor