Toni Locy, formerly of USA Today, was found in contempt recently by a federal judge for refusing to reveal her confidential sources for a story about Steven Hatfill, the bioweapons scientist who is suing the government for naming him a “person of interest” in the 2001 anthrax cases. Former Attorney General John Ashcroft himself named Hatfill at a press conference, but whatever case the government was trying to build fell apart. Hatfill was never charged with anything. He has every legal right to sue the government and pursue his case. Hatfill’s lawyers feel forcing Locy to violate confidentiality will somehow further their case. They are pressing the issue for one simple reason: they can. There is no legal protection on confidentiality for journalists in federal court. They are not concerned with journalists’ ethical code; they just want to win. Would Hatfill’s lawyers try to force other lawyers to abandon attorney-client privilege? They wouldn’t think of it.
But Locy faces jail time and steep fines. U.S. District Court Judge Reggie Walton even tried to forbid USA Today from paying those fines. An appeals court overruled him, thankfully, but the fact that Locy is in this position at all is appalling. Similar cases have popped up in federal courts in Washington, D.C., Illinois, California, and elsewhere.
Critics kick around a standard series of questions regarding the creation of a federal shield law. Should journalists be granted shield protections for any story they write, whether about a corrupt politician or the moment’s plummeting celebrity? Who is a journalist, anyway? These are legitimate concerns. But they can be resolved with healthy debate. Another question that gets asked also has an answer: Are we really missing any stories without a federal shield law?
In truth, we don’t know exactly what stories we are missing. But it’s a safe assumption that as the risk of identification increases, fewer sources will come forward, and the public will have less information. Many questions raised about shield laws divert the discussion away from the fundamental point: the shield-law privilege is vital because it makes reporters neutral parties in any legal problems sources may encounter. That is its great function and sole purpose. Sources must know that by coming forth with information, they risk consequences. They will be sought out. However, they must also know that reporters will not reveal their names.
Unlike Judy Miller and Toni Locy and many others through the years, I had shield protection in the Chiquita case. Ohio’s shield law reads:
No person engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer or committee thereof.
Nowhere in the legislation does it state the stories must meet some standard of societal importance. Or that the sources must meet some standard of ethical behavior. It’s a blanket privilege. And Ohio’s legal system has not collapsed since the shield law’s passage, back in 1953.
Of course, the Chiquita fiasco was by no means a simple shield-law case. Prosecutors went looking for chinks in the shield law in part because Mike Gallagher wasn’t just protecting sources. He broke the law. Gannett had no choice but to fire him. Facing prosecution, Gallagher quickly cashed in the only chit he had: he rolled on sources. He pleaded guilty to felonies, received probation, and promptly left journalism.