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Reporter's legal troubles remain despite deal in anthrax case

By The Associated Press
10.02.08

WASHINGTON — A former USA Today reporter held in contempt for refusing to identify sources for stories about the 2001 anthrax attacks is facing hefty legal fines despite the government's $5.8 million settlement with a former Army scientist once under scrutiny.

Toni Locy has been appealing a judge's order from March that required her to pay up to $5,000 a day unless she identified officials who discussed Steven J. Hatfill. A federal appeals court was expected to rule in the case when the government announced in June its settlement with Hatfill, who claimed the Justice Department violated his privacy rights.

That settlement was expected to lead to dismissal of Locy's case, and the trial judge quickly indicated he would lift Locy's contempt finding and fine.

But Locy said yesterday that she was being forced to continue her legal fight after Hatfill said he wanted to collect attorneys fees for the time he litigated the case while she refused to disclose her sources. Until the courts sort it out, her contempt finding still technically stands.

Hatfill has yet to submit an estimate of legal costs. For a case that extended many months, those fees could reach hundreds of thousands of dollars.

"What do you think the impact is going to be if reporters have to face these kinds of costs for protecting their sources?" asked Locy, a former Associated Press reporter who wrote about Hatfill while working at USA Today. Locy is also a former reporter for The Washington Post and a former West Virginia University journalism teacher. She now teaches legal journalism at Washington and Lee University in Lexington, Va.

"News organizations are cutting back; coverage is tightening up," she said. "News organizations are not going to be able to take that. They'll censor themselves. They'll stop covering the difficult story."

In a Sept. 11 court filing, Hatfill asked the U.S. Circuit Court of Appeals for the District of Columbia to dismiss Locy's appeal. Hatfill said that once the appeal was dismissed, he would seek fees from Locy in lower court, noting that U.S. District Judge Reggie Walton had said from the bench that fees would be appropriate.

"It's a simple question of playing it straight and being candid," Mark Grannis, a Washington attorney representing Hatfill, said yesterday. He described the court filing as preserving Hatfill's rights to fees after it remained unclear in September whether the appeals court still planned to rule in the case.

"It's not some renewed attack on Toni Locy. ... We told her we don't need her testimony," Grannis said.

During oral arguments in May, a three-member appeals panel appeared reluctant to uphold the contempt fines for Locy, citing in part general legal protections for journalists seeking to shield sources. By seeking to continue her fight in appeals court, Locy is betting that the panel will rule for her on legal fees and issue either a neutral or journalist-friendly opinion on the question of protecting sources.

Walton has indicated that if the appeal is dismissed, he will lift the contempt finding.

Five people were killed and 17 sickened when anthrax was mailed to Capitol Hill lawmakers and members of the media just weeks after the Sept. 11, 2001, terrorist attacks.

After the anthrax attacks, Attorney General John Ashcroft called Hatfill "a person of interest" in the investigation and stories by various reporters including Locy followed. Hatfill had worked at the Army's infectious diseases laboratory from 1997 to 1999.

Bruce Ivins, the Army scientist eventually accused of carrying out the 2001 anthrax attacks, committed suicide last July as prosecutors prepared to charge him in the mailings that killed five people and sickened 17 others.

Gregg Leslie, legal defense director at the Reporters Committee for Freedom of the Press, said the appeals court may be interested in issuing a ruling since judges typically act quickly to clear their docket. He said there was a risk the appeals court could issue a ruling harmful to journalists, but the issue of huge attorneys fees was worth the fight.

"If every time reporters stood up for constitutional rights they're hit with huge attorneys fees, that would be a huge chilling effect," Leslie said. "It would be a novel way of harassing reporters."


Previous
Judges seem to question heavy fines for reporter
Appealing contempt ruling, Toni Locy's lawyer tells D.C. Circuit that journalists' ability to report on critical issues is at risk. 05.09.08

Related

Justice Dept. to pay Hatfill $5.8 million to settle lawsuit

Deal may make contempt order and $5,000-a-day fines against USA Today reporter Toni Locy moot. 06.30.08

Newspapers seek government records in anthrax inquiry
'The public has a right to know why [Stephen Hatfill] was targeted,' says attorney for New York Times and Los Angeles Times. 11.13.08

Ongoing confidential-sources cases
By Bill Kenworthy Compilation tracking current cases involving efforts to force journalists to disclose confidential sources. 08.04.05

Journalist ‘shield’ – balancing openness, security
By Gene Policinski Under a Senate bill, journalists would be protected from having to reveal confidential sources — but not if they witnessed a crime or if there were an imminent threat to life or national security. 10.07.07

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