Wednesday, April 16, 2008

Toni Locy and the Freedom of the Press

Last week, I heard Lucy Dalglish of the Reporters Committee for the Freedom of the Press (RCFP) talk about, among other things, the importance of a Federal Shield Law to protect reporters from being forced to give up their sources. As you may know from watching Lou Grant or Mary Tyler Moore, giving up sources is a big deal. It places the sources in jeopardy, first of all, but it also means that the reporter may not be able to work again, if sources do not trust him or her to keep them confidential.

She mentioned one case in particular that I found distressing: that of Toni Locy.

Locy was a USA Today reporter who wrote about Dr. Steven Hatfill, suspect in the case of the anthrax attacks that took place after 9/11. Hatfill is now suing the government for, essentially, ruining his life by sharing confidential information about him with the press. As part of this process, Locy was ordered to give up her government sources. She claims that she doesn't remember exactly which of her sources she spoke with for that story, which I at first found hard to believe, until I learned that she has a number of regular sources with whom she has spoken regarding several stories; that she was working on several stories at the time that she wrote the Hatfill piece; and that she wrote the piece five years ago. The result, Dalglish says, is that the judge ordered her to turn over the names of not just the sources she had spoken with, but of twelve of her Justice Department sources. And Locy refused.

So, in television and movies, when a reporter fails to give up her sources, she goes to jail, right? Like Judy Miller? Not any more:

...U.S. District Court Judge Reggie Walton in Washington, D.C. issued an order holding former USA TODAY reporter Toni Locy in contempt for refusing to reveal confidential sources in the Hatfill/anthrax stories she wrote about five years ago.

Judge Walton denied Locy's request for a stay pending appeal to the DC Circuit and ordered that all fines must come out of her pocket: she will not be allowed to accept assistance in paying the fines. In a couple of weeks, the fines will accelerate to $5,000 a day and not even her own mother will be allowed to help her pay them. Her first payment is due at midnight tomorrow.

In other words, she is being threatened with complete financial ruin. Note that, as the RCFP press release explains, this is unprecedented: "No judge has ever officially ordered that a reporter held in contempt may not accept reimbursement from an employer (or anyone else.)" Further, there are broader implications here for journalists. From an RCFP white paper:
The corporate structure of the news media has created new obstacles, both financial and practical, for journalists who must keep promises of confidentiality. Information that once existed only in a reporter’s notebook can now be accessed by companies that have obligations not only to their reporters, but to their shareholders, their other employees, and the public. Additionally, in the wake of an unprecedented settlement in the Wen Ho Lee Privacy Act case, parties can target news media corporations not just for their access to a reporter’s information, but also for their deep pockets. The potential for conflicts of interest is staggering, but the primary concerns of The Reporters Committee for Freedom of the Press are that:

• because of the 21st-century newsroom’s reliance on technology, corporations now have access to notes, correspondence and work-product information that before only existed in a reporter’s notebook;

• the new federal "e-discovery" court rules allow litigants to discover vastly more information than a printed page – or even a saved e-mail – would provide during litigation;

• while reporters generally only have responsibilities to themselves, their family, and their sources, a corporation often has responsibilities to shareholders and regulators that can force compromises in the protection of newsgathering materials;

• since so many reporters have said that they would willingly go to jail to protect their sources, some plaintiffs and prosecutors are now threatening to financially ruin the journalist, often with the assumption that news media corporations will back their reporter and pay steep fines;

• the settlement in the Wen Ho Lee case has demonstrated to civil plaintiffs that a large check from news media organizations can be obtained in lieu of confidential information;

• the costs of litigation – both emotional and financial – are weighing heavily on journalists and news media corporations.

Now - a separate, but related, issue here is that I think these folks who are wrongly accused have every right to sue. But without a free press, we will be even less informed than we are now.

Be sure to read the whole thing.

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