Nearly in the clear?

From the Winter 2009 issue of The News Media & The Law, page 26.

Toni Locy’s battle to keep confidential the sources she used seven years ago in her reporting on the 2001 anthrax attacks appears to finally be over.

In early February, U.S. District Judge Reggie Walton vacated and threw out his previous contempt order against Locy. Walton’s directive was pursuant to a November ruling by the U.S. Court of Appeals in Washington, D.C. that the appeal of Walton’s contempt order was moot and should be dismissed.

According to her attorney, Robert Bernius, that means the case is closed.

“She didn’t wind up in jail,” Bernius said. “She didn’t wind up paying money and she didn’t wind up disclosing sources. That to me is a pretty good result of the case.”

Locy, a former USA Today reporter, has been battling Steven Hatfill’s attorneys since they first subpoenaed her, and a dozen other reporters, in 2004 as part of his lawsuit against the Department of Justice. Hatfill sued under the Privacy Act over the government leak of his name as a person of interest in the anthrax investigation. His name was later cleared and he settled the case with the Justice Department for $5.8 million.

While Hatfill’s subpoenas against other reporters were ultimately quashed or withdrawn, the subpoena Locy received was not so easily resolved. Walton ultimately held Locy in contempt in February 2008 and levied huge fines against her — beginning at $500 per day for the first seven days, $1,000 per day for the following seven days after that, and $5,000 a day for the last seven. At that point, Walton ruled, he would determine what measures to take next.

Locy appealed the contempt order; she and Hatfill litigated the issue until this past November, when the appellate court finally vacated the contempt order. In a two-page opinion, the appellate court held that since Hatfill and the government had settled the Privacy Act lawsuit while the court was considering the appeal, the need for Locy’s sources was now moot. The court did not decide any of the First Amendment issues in the case.

Judge Walton issued an order on Feb. 11 accepting that decision. In the one-page order, Walton wrote that pursuant to the U.S. Court of Appeals decision, the August 2007 order compelling Locy’s testimony, his February 2008 order holding Locy in contempt, and a March 2008 order denying Locy’s reconsideration of the contempt order were all vacated and dismissed.

Bernius said he was pleased that Walton issued the order accepting the appellate court’s determination.

Locy, however, said that she is still worried Hatfill’s attorney will try to appeal or come after her for legal fees.

“It is still hanging over me,” said Locy, who is now a professor of legal journalism at Washington and Lee University in Lexington, Va. “It is still there; it’s always there. I am hoping that they don’t [seek attorney fees], but we have no idea what they will do.”

In Walton’s original opinion, aside from holding Locy in contempt, he wrote that Hatfill could seek attorney’s fees from Locy. In that opinion, Walton barred USA Today from helping Locy pay the contempt fees; and Locy feared that any attorney fees she may have to pay would also fall under the same stipulation. However, contempt fines are meant to compel action, and thus would be less effective if others helped pay them, while there is no such impetus behind an award of attorney’s fees.

As of early February it was unknown if Hatfill’s attorneys would petition for those fees. Locy said she fears that if Hatfill does seek attorney’s fees from her, the amount will far exceed the initial contempt sanctions Walton placed on her.

“There is no doubt in my mind that two years’ worth of legal bills would be significantly more,” she said.

Though the matter now seems to be moving in Locy’s favor, she said she is not completely satisfied with the Court of Appeals decision. She and her attorneys wanted the court to decide the underlying reporter’s privilege issues in her case.

But in any event, Locy said she is keeping her fingers crossed that her time in court is over: “They should take their $5.8 million and ride off into the sunset and leave me alone.”