Reporters Committee joins brief in defense of Toni Locy

The Reporters Committee for Freedom of the Press joined 18 news organizations and 14 professional and trade organizations in filing an amicus curiae brief in support of a former USA Today reporter’s appeal from an contempt or court order of unprecedented scope.

Toni Locy was found in contempt by a federal judge after she did not cooperate with former Army scientist Steven Hatfill in a civil Privacy Act lawsuit he filed against the government. Hatfill, who was named as a “person of interest” in the federal government’s investigation into the anthrax mailings that killed five people, contends that FBI and DOJ officials violated federal privacy laws by releasing information about their investigation to Locy and other journalists. Locy has said that she no longer has notes from her reports and that she cannot recall who gave her the information.

U.S. District Judge Reggie Walton ordered Locy to pay escalating fines of up to $5,000 a day for her refusal to identify all of the confidential sources that she used while reporting about terrorism-related stories. Walton’s contempt order also prohibits Locy from receiving assistance in paying those fines from any outside source, including her former employer. Additional information about the case can be found in the Reporter’s Committee’s “toolkit” and “Shields & Subpoenas” pages.

The amicus brief, prepared by a team of lawyers in the Washington, D.C. office of Davis Wright Tremaine LLP led by Laura Handman, argues that the U.S. Court of Appeals for the D.C. Circuit’s long-recognized constitutional reporter’s privilege should protect Locy from forced disclosure of her sources.

At a minimum, precedent in the circuit demands that subpoenaed newsgathering materials go “to the heart of the matter” and are “crucial” to the case, but Locy’s sources fall well short of even this initial hurdle. Specifically, the brief argues that the information that Hatfill seeks is not of the type that the Privacy Act protects and that Hatfill is simply hoping to add to already collected proof of the allegedly offending disclosures to pad his damages claim against the government, leaving the identity of Locy’s sources as anything but “crucial” to his claim.

The brief further contends that the public’s interest in protecting a reporter’s sources and maintaining the free flow of information far outweighs any private benefit that Hatfill might enjoy by identifying Locy’s full slate of terrorism-related sources.

The Reporters Committee was joined on the brief by ALM Media, the American Society of Newspaper Editors, the Associated Press, the Association of American Publishers, the Author’s Guild, Bloomberg News, CNN, the California First Amendment Coalition, CBS, the Citizen Media Law Project, Cox Enterprises, the Daily News, Dow Jones, the E.W. Scripps Company, the Hearst Corporation, the Magazine Publishers of America, the McClatchy Company, the National Association of Broadcasts, the National Newspaper Association, the National Press Club, National Public Radio, NBC Universal, the New York Times Company, the Newspaper Association of America, the Newspaper Guild, the Radio-Television News Directors Association, Reuters America, the Society of Professional Journalists, Time, the Tribune Company, and U.S. News and World Report.

Hatfill now has until April 11 to respond to Locy’s motion. Oral arguments on the appeal will be held on Friday, May 9, at 9:30 am.