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Fall 2008 Bulletin
Subpoenas and Journalist's Privilege
Court Throws Out Locy Contempt Order
The United States Court of Appeals for the D.C. Circuit threw out a contempt order against former USA Today reporter Toni Locy on November 17, several months after the lawsuit in which she was called to testify was settled out of court.
“Because the underlying case has been settled … there is no longer a pending trial in which the appellee’s request for disclosure can be used,” the two-page per curiam, or unsigned, opinion in Hatfill v. Mukasey, No. 08-5049 (D.C. Cir. 2008), said. Although the court acknowledged that the appeal raised “close questions” under the First Amendment, it did not address whether Locy’s sources were privileged.
Former Army Scientist Steven Hatfill subpoenaed Locy’s sources in a suit against the federal government, alleging that government officials illegally disclosed disparaging details about him in “a coordinated smear campaign” while investigating the deadly anthrax mailings of 2001.
Locy, who covered the investigation for USA Today, refused to reveal her sources, and was held in contempt and ordered to pay escalating fines of up to $5,000 per day. (See “Reporters Ordered to Testify and Reveal Government Sources in Hatfill Case,” in the Fall 2007 issue of the Silha Bulletin and “Reporters Fight Federal Subpoenas” in the Winter 2008 issue of the Silha Bulletin.)
Locy appealed the order and contempt charges to the D.C. Circuit, and the court heard oral arguments, but the suit between Hatfill and the government was settled in June for about $5.8 million, and it was uncertain what would happen regarding the charges against Locy. (See “Hatfill Suit Settled, Reporter Locy’s Fate Still Unclear” in the Summer 2008 Silha Bulletin).
According to an October 1 Associated Press (AP) story, Locy said she had been forced to continue her legal fight because Hatfill said he wanted to collect attorneys’ fees, which could have been hundreds of thousands of dollars, for the time spent litigating the case while Locy refused to disclose her sources.
Hatfill filed a motion to dismiss Locy’s appeal on September 11, arguing that the settlement rendered the appeal moot. The motion said that if the appeal was dismissed, Hatfill would seek fees from Locy in lower court, noting that U.S. District Judge Reggie Walton had said that attorneys’ fees would be appropriate.
Locy filed a response on September 18 arguing that she “deserves the opportunity to have [the] court clear her name,” and that the court should still issue a ruling on the appeal. Locy’s response argued that even if the appeal was dismissed, the court should vacate the lower court’s contempt ruling and fine.
Gregg Leslie, legal defense director at the Reporters Committee for Freedom of the Press, said in a November 17 AP story that the dismissal probably means Locy will not be liable for any attorney fees. “To go after someone for attorney fees you have to have substantially prevailed in litigation, and there’s no order finding [Hatfill] prevailed,” Leslie said, although the decision could still be appealed.
“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 in the October 1 AP story. “It would be a novel way of harassing reporters.”
In an unrelated holding also published on November 17, U.S. District Court Chief Judge Royce Lamberth ruled in favor of The New York Times and the Los Angeles Times in a Freedom of Information Act suit to unseal FBI records relating to the investigation and the arrest of Hatfill. Lamberth wrote that the public has “a legitimate interest in observing and understanding how and why the investigation progressed in the way that it did,” The Washington Post reported November 18.
– Jacob Parsley
Silha Research Assistant
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