Sources of controversy

It may not have been his intention, but a federal judge in Washington has underscored the need for Congress to join 33 states and the District of Columbia in recognizing a reporter’s privilege to protect confidential sources.

Last month, U.S. District Judge Reggie Walton ruled that five journalists must disclose who in the FBI or the Justice Department told them that Steven Hatfill was being investigated in connection with the anthrax attacks that killed five people in 2001. Hatfill, a physician who had worked at an Army laboratory where the strain of anthrax used in the attacks was once studied, has filed a lawsuit against the government under the federal Privacy Act, seeking damages for the “intentional and willful” leaking of his name. A similar suit by former nuclear scientist Wen Ho Lee, who was arrested in 1999 as part of an espionage investigation at the Los Alamos National Laboratory in New Mexico, was settled last year after the government and five news organizations -- including The Times -- agreed to pay Lee a total of $1.65 million.

Earlier this year, a different judge dismissed Hatfill’s libel suit against the New York Times, ruling that Hatfill was a public figure who couldn’t show that the newspaper had knowingly published falsehoods. Yet Walton’s order -- even though it comes in a suit against the government -- poses the same danger for journalism. Most news organizations prefer to be able to identify sources of information. But without assurances of confidentiality, some important stories will go uncovered. The investigation of the anthrax attacks was an important story. So was the fact that the government was focusing, albeit mistakenly, on a particular individual.

Two weeks before Walton ordered journalists to identify their sources in the Hatfill case, the House Judiciary Committee approved the Free Flow of Information Act of 2007. The legislation, similar to a bill introduced in the Senate, would require federal courts to recognize a qualified privilege for confidential sources -- one that could be overcome if disclosure were necessary to resolve a criminal case, to prevent terrorism or to identify a person who had leaked trade secrets or private health records.

Even then, a judge would have to determine “that the public interest in compelling disclosure [of the information or document sought] outweighs the public interest in gathering or disseminating news or information.” Without a robust federal shield law, other aggrieved parties will be tempted to follow Hatfill’s path.