Justice and the Press
By MARK A. GRANNIS
March 15, 2008; Page A11
Last week, U.S. District Judge Reggie B. Walton held former USA Today reporter Toni Locy in contempt of court for refusing to answer questions he had ordered her to answer. Within hours, media apologists were trying to turn Ms. Locy's disobedience into a new excuse for a "reporter's shield" law -- a law that would let reporters hide the names of their sources when courts need them, instead of testifying fully and truthfully like the rest of us.
But a shield law would be bad for the country, and the circumstances of Judge Walton's ruling show us exactly why.
Here is the context: As many as 12 different officials in the FBI and the Department of Justice leaked inside information to Ms. Locy about their investigation into the anthrax attacks of 2001. They told her, and she reported, that some investigators thought former biodefense researcher Steven Hatfill was behind the attacks. The FBI, they said, could not "risk the embarrassment of losing track of Hatfill, even for a few hours, and then being confronted with more anthrax attacks." These leaks, and others like them, ruined Dr. Hatfill, against whom, as Judge Walton noted, "there is not a scintilla of evidence."
Now Dr. Hatfill wants justice, which means getting the names of the leakers. Ms. Locy is the only one who knows the names. Dr. Hatfill asked for them; she asked Judge Walton to let her keep the names secret based on her private promises of anonymity. Judge Walton said no and ordered disclosure. Ms. Locy is in trouble not because she reported what she heard, but because she disobeyed a court order to tell us where she heard it. It's hard to see how we could run a court system any other way.
But you wouldn't know much of that from the fawning coverage Ms. Locy received in the media. The Associated Press, for example, published a sound bite from Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, who accused Judge Walton of trying "to destroy [Locy's] life." Continued Ms. Dalglish: "This is just plain crazy. I know you're not supposed to call a federal judge arrogant, but this is arrogant."
Then came this from the AP: "Walton's ruling comes a little more than a week before the kickoff of 'Sunshine Week,' a national initiative organized by media, civic groups, libraries and nonprofit organizations to raise awareness of First Amendment and open-government issues." The coordinator of Sunshine Week told the AP she hoped Judge Walton's action would spur action on the shield law, "because it's just so appalling."
Appalling? Arrogant? Perhaps some of us take the legal system for granted, but the fact is that the legal system crumbles if people with relevant information about illegal acts do not testify -- truthfully.
For a court, the issue is not about good journalistic practice. It is about the search for truth, which is a practical necessity for doing justice. Every day that Ms. Locy maintains her silence is another day on the public payroll for perhaps a dozen law-breaking government employees who once swore to protect the public rather than gossip about it. Not getting the evidence means not righting the wrong.
On Tuesday, an appellate court postponed the sanctions against Ms. Locy until it can hear her appeal and make sure Judge Walton was correct. But if Judge Walton's order showed why we need a shield law, perhaps the appellate court's stay of that order shows why we don't need a shield law.
Reasonable minds could certainly conclude from the legal see-sawing that these cases often involve very close calls, highly dependent on specific facts and specific testimony rather than sweeping generalizations about freedom of the press. Maybe, just maybe, courts can deal with the competing values more flexibly, and therefore more equitably, than Congress could ever do in the black letters of a federal statute.
Still, journalistic demands for a federal shield law continue, and the big media lobby should never be underestimated. So in honor of Sunshine Week, I propose four questions senators should ask the media to answer before they vote on a federal shield law.
First, should people like Steven Hatfill -- that is, people injured by government leaks -- have a remedy at law, and if so, what? It is not clear how victims like Dr. Hatfill can ever be made whole, if leakers and reporters join in a conspiracy of silence. Senators should expect a better explanation on this point before they make it impossible for courts to enforce the federal Privacy Act.
Second, how can the arguments and behavior of journalists in a case such as this be reconciled with the profession's self-image as the public watchdog, bringing accountability to government? The public officials who leaked investigative information to Ms. Locy broke the law, ruined an innocent man, and violated the public trust. Shouldn't our watchdog bark or something?
The leakers should be fired, prosecuted, or both -- and reporters who care about government accountability should be racing each other to tell us who these miscreants are. The fact that they shut their mouths tight and run the other way suggests that the image of reporter-as-watchdog does not reflect the current place of journalism in society, whatever may have been true in the past.
Third, if the law prevents courts from ordering reporters to identify anonymous sources, what will prevent government officials from using the private information they keep on us for personal or political score-settling? What will prevent them from simply lying? What will prevent reporters from inventing anonymous sources who don't actually exist?
Fourth, how is a senator who votes for a shield law to convince his constituents that it is anything but a special favor for an influential lobby? When news of Judge Walton's ruling hit the Internet, ordinary people lionized him. A commenter on one Web site asked whether Judge Walton could become a traveling judge, because it "looks he could be used all over the country."
Similarly, when the Washington Post editorialized in favor of a shield law just days earlier, its readers heaped scorn on the idea. One wrote that "if a shield law is put in place, irresponsible journalists can print anything and get away with destroying lives. There has to be some sort of checks and balances here." If these comments reflect public opinion better than the media conglomerates' lockstep editorializing does, how can a senator justify a shield law?
Ideally journalists would ask these questions themselves. But it's not an ideal world. That's why they occasionally need to be held accountable, too.
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