The Point: Media - and public - need strong shield law

Any reporter who has ever promised anonymity to a source ought to be paying close attention right now to what is happening to Toni Locy, a former staff writer at the Philadelphia Daily News.

Locy is facing financial ruin for defying U.S. District Judge Reggie B. Walton, who is presiding over a civil lawsuit against the government by Steven Hatfill, the man Attorney General John Ashcroft named as a "person of interest" in the still-open anthrax-mailing case of 2001. The anthrax letters killed five people and sickened 17, sending the nation into a panic over a possible terrorist chemical attack.

The anthrax mailer has not been caught. Hatfill, a virologist and biomedical research scientist, has always asserted his innocence and has never been charged with the crime, but his reputation and career have been destroyed. FBI and Justice Department officials repeatedly identified him off the record to newspaper reporters as the prime suspect. One of those reporters was Locy. In two stories she wrote for USA Today in 2003 naming Hatfill as the primary suspect, she mentioned first four unidentified law-enforcement sources, and then three. Walton wants to know who they were.

My heart goes out to Locy. I was in a similar position once myself. I was fined (along with Philadelphia Tribune columnist Linn Washington) a total of $60,000 for refusing to answer questions during a criminal trial here in 2000. In my case, The Inquirer paid the fine. In Loci's, the judge has fined her personally up to $5,000 a day for refusing to name names, and he has forbidden anyone from paying the fine for her. The order has been appealed.

I am hoping Locy wins on appeal, for her own sake but also for every working reporter in America, myself included. There are two important lessons to take from her predicament, one for journalists and the other for society at large. Reporters should be aware that promising a source anonymity is a big deal, carries major risks, and ought not to be done lightly. Society needs to learn that if it wants journalism that functions as a watchdog on power and plays a relevant independent role in our democracy, then reporters need strong protection in court.

A big part of this problem is journalism's fault. In Locy's case, the use of unnamed sources in her stories was unnecessary and had the effect of both further staining Hatfill's reputation and inviting her current troubles. Neither of the stories she wrote was remarkable or exclusive.

The first reported in essence that the FBI was tailing Hatfill around the clock; the second that agents searching for evidence were draining a pond near his former home in Frederick, Md. The same stories were covered by many reporters from many news outlets at the same time. In both of Locy's accounts, the facts alone told the story. It was newsworthy that the government was taking these dramatic steps, and particularly in the context of Ashcroft's statement, it was abundantly clear that Hatfill was suspected of the mailings and remained under aggressive federal scrutiny.

Locy went further. In the first story she cited "four law enforcement sources" of her own who told her that "many" investigators but "not all" involved in the case believed Hatfill was "behind the mail attacks." Two of her unnamed sources told her that the evidence was "largely circumstantial." This suggested that while most investigators considered Hatfill their man, some felt they still lacked enough evidence to charge him. The second story cited "investigators" who confirmed that they were interested in the pond because it was near Hatfill's home and they suspected he might have discarded evidence in it.

These off-the-record additions to the stories added little beyond advertising Locy's access to inside information. It is the sort of thing reporters do all the time. It shows them to be diligent and hardworking, and to have well-placed sources, but beyond that does not significantly advance the story. Given the power of courts to coerce reporters to testify, announcing the input of unnamed official leakers is like waving a red flag.

That said, Hatfill's legitimate interest in finding out who was trashing him in the Justice Department is not as important as Locy's need to protect her sources. This is one of the places in our democracy where two important priorities collide. Judges have a legitimate interest in finding the truth, while society benefits greatly from an unfettered press. If Walton's unprecedented penalty against Locy is upheld, Hatfill may come closer to collecting well-deserved damages, but at an absurdly high cost. The blow to journalism might be the worst in U.S. history.

Great reporting relies on confidential sources. To note just of a few of the most dramatic modern examples: David Halberstam's critical reporting from Vietnam; publication of The Pentagon Papers; Woodward and Bernstein's revelations about the Watergate break-in; details of the Iran-Contra scandal; the existence of secret CIA interrogation centers; and the recent revelations of extralegal spying by the National Security Agency. In my own experience, nearly every major story I have written, including the books Black Hawk Down and Killing Pablo, has involved promising sources anonymity, and could not have been written without their help. Much of the material in both books remains officially classified.

Reporters have long faced the prospect of imprisonment for protecting sources, but few would hazard everything they own. Without some legal protections, and without the financial protection of a newspaper, magazine or network, little investigative reporting would get done.

Walton has proved his point. He can bring Locy to her knees, and he can send a chilling warning to every reporter in America. Stripped of all protection from judicial abuse, they can be deterred from practicing their craft, and our democracy will be much poorer for it. Journalists should never use confidential sources lightly, but unless we are willing to abandon the practice of vibrant journalism, judges should not have such a free hand.

In many places throughout this country, they do. "Shield" laws - laws that protect reporters from having to reveal the sources of information they gather in their reporting - differ from state to state. It would be nice to have a uniform federal standard, and there are several bills currently before Congress that would accomplish that. Given the legitimate interests of courts, there ought, of course, to be some limits on reporters' rights. The controlling precedent in this debate, the 1972 Supreme Court case Branzburg v. Hayes, ruled against the idea of reporters' privilege, but influential dissents to that ruling had the opposite effect: they established two important ground rules for questioning reporters that most courts have followed ever since.

Before compelling a reporter to testify, the information sought (1) must be critically important to the case, and (2) must be unobtainable anywhere else. Neither standard applies in Loci's case, nor did it apply to mine or to most of the cases where reporters have been held in contempt. The slander of Hatfill was made publicly, and at least some of the sources of the statements about him from the Justice Department already have identified themselves or been revealed.

Steven Hatfill will probably get his payday, and may well deserve it - but not at the cost of sacrificing a free press.