WASHINGTON – A federal appeals court appeared reluctant Friday to uphold hefty fines for a reporter who refuses to identify the sources of her stories about the 2001 anthrax attacks.
Former USA Today reporter Toni Locy is appealing a judge's order requiring her to pay up to $5,000 a day out of her own pocket until she gives up her sources.
Locy has been drawn into a lawsuit by former Army scientist Steven Hatfill, who came under FBI scrutiny following the attacks. He accuses the government of violating his privacy by talking to reporters.
Locy says she can't remember who at the Justice Department discussed Hatfill with her, so U.S. District Judge Reggie B. Walton ordered her to identify all her sources who discussed any aspect of the anthrax case.
The U.S. Court of Appeals for the District of Columbia Circuit judges questioned Friday whether that order went too far or whether Hatfill really needs the information, since his attorneys have asked for a trial date anyway.
"You've got enough to go to trial. You think you can win," Judge Douglas H. Ginsburg told Hatfill's lawyer. "Why is more evidence critical to the case? That seems to be a contradiction."
Before ordering a reporter to identify a source, judges normally balance the need for the information against the need for a reporter to protect his or her sources.
"I think you have an argument that the court didn't do the necessary balance," Judge Judith W. Rogers said.
Judge Brett M. Kavanaugh, the third member on the panel, expressed skepticism that Locy had a constitutional right not to identify her sources. But he said she had a very strong case under a more general legal principle, known as common law.
Five people were killed and 17 sickened when anthrax was mailed to Capitol Hill lawmakers and members of the media just weeks after the Sept. 11, 2001, terrorist attacks. Locy's lawyer, Robert C. Bernius, told the judges that upholding the contempt ruling would prevent reporters from being able to report on important issues like the anthrax attacks.
After the attacks, Attorney General John Ashcroft called Hatfill "a person of interest" in the investigation and stories by various reporters including Locy followed. Hatfill had worked at the Army's infectious diseases laboratory from 1997 to 1999. The anthrax attacks remain unsolved.
"This was the government using a reporter to smear an individual," said Christopher Wright, Hatfill's attorney.
Locy, a former reporter with The Associated Press and other news organizations, now teaches journalism at West Virginia University.
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