The News Media vs. the Innocent

Press freedom shouldn't mean defending the guilty at all costs

Years ago, Ray Donovan, Ronald Reagan's Labor Secretary, was prosecuted for corruption, only to be acquitted. After the verdict, Donovan asked plaintively, "Which office do I go to to get my reputation back?"

Steven Hatfill knows where to go to get his reputation back. But upon arriving there, he finds the door blocked by someone who says her privileges are more important than his good name. That someone, of course, is a journalist. And, not surprisingly, she enjoys the broad support of other journalists, who have proved to be slow learners about the obligations they share with their fellow citizens.

Hatfill was a casualty of the anthrax scare of 2001. Just after the 9/11 attacks, someone mailed letters containing anthrax spores to several news organizations and a pair of U.S. senators. Some 22 people were infected, and five died. In the aftermath, the Justice Department labeled Hatfill, who had done research on biological warfare for the army, a "person of interest." Secret information leaked to the press suggested he was the terrorist behind the attacks.

But the suspicions were wrong. Hatfill asserted his innocence, and he was never charged in the case. He sued the government, The New York Times and others for damages. Federal Judge Reggie Walton concluded that the claims have "destroyed his life" even though "there's not a scintilla of evidence to suggest Dr. Hatfill had anything to do with" the anthrax attacks.

Years later, Hatfill is still awaiting vindication. Last week, he inched closer when the judge ordered Toni Locy, a former USA Today reporter, to disclose her sources about Hatfill—or else face fines of up to $5,000 a day for contempt. A host of news organizations, including Tribune Co., filed a friend-of-the-court brief urging that she be spared from providing evidence.

Here we find ourselves on depressingly familiar ground. Back in 2005, Times reporter Judith Miller refused to say who told her that Valerie Plame was a CIA agent. She went to jail for contempt before finally acknowledging it was vice presidential aide Lewis "Scooter" Libby.

Five reporters didn't want to reveal their sources about Los Alamos nuclear scientist Wen Ho Lee, who was tarred for alleged espionage but convicted only of a single minor count of mishandling classified data. Their demands got nowhere, forcing their employers to reach a costly settlement with Lee.

The news media keep losing these cases, yet journalists and their attorneys refuse to recognize reality. They continue to insist on their right to keep evidence of wrongdoing and lawbreaking from the courts, no matter what the collateral damage.

Locy reported on the suspicions about Hatfill based on interviews with confidential sources in the Justice Department and the FBI, who may have violated federal law in leaking information about him. Since she discarded her notes and says she can't remember which of 10 people told her about Hatfill, the judge says she has to turn over the names of all 10 so Hatfill's lawyers can question them.

Judge Walton found that the identity of her sources "goes to the heart" of his case, and that there is no other way he can get the information. Without Locy's testimony, the damage done to Hatfill would go unpunished and unrepaired.

The Reporters Committee for Freedom of the Press and its allies also think the $5,000-a-day fine, which the judge says she must pay herself, is outrageously excessive. But the point of such fines is not to accommodate the financial resources of the person who is defying the law—it's to force her to comply, in the interests of justice.

Justice should not be at odds with the job of the news media. But in this instance, it is. University of Chicago law professor Geoffrey Stone, one of the premier experts on the First Amendment, thinks the press has overstepped. "It's important to remember here," he told me, "that these sources were not blowing the whistle on government wrongdoing but were allegedly doing something wrong in revealing the information about the identity of the suspect."

Journalists and citizens may disagree on the proper role of the news media in a free society. But when the press finds itself protecting the guilty at the expense of the innocent, it's made a wrong turn somewhere.

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