Ongoing confidential-sources cases

Thursday, August 4, 2005

This compilation was updated in July 2009. The Associated Press contributed to these reports.

James Risen subpoena
James Risen, a reporter for The New York Times, was issued a subpoena in January 2008 to appear before a federal grand jury in Alexandria, Va., on Feb. 7, 2008. The Times reported April 12 that the Justice Department was seeking Risen's source for some of the information in his book on the CIA, State of War. Risen’s lawyer, David N. Kelley, said Risen would fight the subpoena. The Times article also said government officials had been called to the grand jury to answer questions about phone records documenting Risen's calls. According to the Reporters Committee for Freedom of the Press, “Risen filed a motion to quash the subpoena on Feb. 19, 2008. He has continued fighting the subpoena and has not testified. However, the entire case is under seal.”

Closed and settled cases

Castellani v. Scranton Times – Closed
Common Pleas Judge Robert A. Mazzoni of Lackawanna County, Pa., ruled on June 3, 2005, that former reporter Jennifer Henn had to disclose the identity of a source used in a story about a grand jury investigation. Henn reported in a January 2004 story, which appeared in The Scranton Times and its sister paper, The Tribune, that the source said two of the county’s commissioners were “considerably less than cooperative” during their grand jury testimony. The two commissioners sued for defamation and demanded that the reporter reveal her source.

Despite Pennsylvania’s shield law, Mazzoni ruled that Henn must reveal the identity of her source. The judge said that maintaining grand jury secrecy outweighed the protections offered by the shield law. The newspapers appealed the decision to the state Superior Court. On Jan. 3, 2007, a panel of the Superior Court of Pennsylvania overturned the lower court decision in Castellani v. The Scranton Times. Judge Zoran Popovich wrote that the Superior Court was “mindful and sympathetic” of the concerns Judge Mazzoni expressed regarding the grand jury process and the shield-law privilege. However, the court concluded that Mazzoni’s finding of an exception to the shield law based on those concerns “exceeded the boundaries of the exception set forth by the Pennsylvania Supreme Court in [past rulings].”

The two county commissioners appealed to the Pennsylvania Supreme Court, which heard the case on April 16, 2008. Chief Justice Castille affirmed the decision of Judge Mazzoni and the Superior Court and reaffirmed that Pennsylvania’s shield law prohibits compelled disclosure of a confidential source's identity or any information that would expose the source’s identity.

Hatfill v. Mukasey (formerly Hatfill v. Gonzales, formerly Hatfill v. Ashcroft) (Settled) / Hatfill v. New York Times (Closed) / Hatfill v. Foster (Settled)
Attorneys for Steven Hatfill, a former bioweapons researcher, issued subpoenas to a number of news outlets in December 2004 as part of Hatfill’s lawsuit against the U.S. government. Hatfill was and is attempting to learn who leaked information about the Justice Department investigation into the 2001 anthrax attacks. Hatfill was named a “person of interest” in the investigation and is suing the Justice Department and the FBI, claiming that they unfairly targeted him and named him publicly. All the news outlets vowed to fight the subpoenas.

In late May 2005, pursuant to an agreement among counsel, most of the media subpoenas were withdrawn and Hatfill was given the names of specific journalists who had confidential government sources. These journalists were eventually deposed and identified more than 100 separate disclosures about Hatfill that they claim were directly from FBI or DOJ sources. However, they declined to reveal their sources. At this time the federal government also allowed its employees to be deposed. However, the employees who were questioned asserted the law-enforcement privilege, and the subpoenas to the media outlets were then re-issued.

On Aug. 13, 2007, U.S. District Judge Reggie B. Walton ruled that five journalists — Michael Isikoff and Daniel Klaidman of Newsweek; Allan Lengel of The Washington Post; Toni Locy, formerly of USA TODAY; and James Stewart, formerly of CBS News — must give up the names of the sources who provided them with information about Hatfill. Walton concluded that “Hatfill [had] exhausted his alternative means for obtaining the information,” which he concluded was central to Hatfill’s Privacy Act case against the government, and “is therefore entitled to further testimony from the reporters.” In making this ruling Walton found that Hatfill had met the requirements to overcome the qualified reporter’s privilege. He also refused to recognize a federal common-law privilege put forward by the reporters.

Walton also granted a motion to quash subpoenas issued to the corporations that employed the reporters. Walton ruled that it was premature to subpoena the media corporations because Hatfill had not exhausted every reasonable alternative source of information — the reporters themselves. He also said it might be necessary to revisit that decision based on the outcome of the reporters' depositions.

On Feb. 19, 2008, Judge Walton found Toni Locy in contempt for not revealing her sources during a December 2007 deposition. The judge imposed fines on Locy that topped out at $5000 a day. Locy was ordered not to accept any help through contributions to pay the fine. The D.C. Circuit Court of Appeals granted an emergency stay of the contempt fine while Locy appeals the contempt order.

On June 27, 2008, the Justice Department and Hatfill reached a settlement in this case. DOJ agreed to pay Hatfill $5.8 million and later officially “excluded” him from the ongoing anthrax investigation. The settlement most likely makes the Locy case moot. On June 30, Judge Walton issued a “Notice of Court’s Willingness to Vacate Contempt Citation Against Toni Locy.” On July 1, the court also issued an order vacating the ruling that James Stewart must provide the names of his sources. On Nov. 17, 2008, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia threw out the contempt order and dismissed the case. Judges Douglas H. Ginsburg, Brett M. Kavanaugh and Judith W. Rogers said the appeal raised “close questions” about federal evidentiary rules and the First Amendment.

Hatfill also filed a separate libel lawsuit against The New York Times and reporter Nicholas Kristof in July 2004. This suit was dismissed later in the year, only to be reinstated on July 28, 2005, by a 4th U.S. Circuit Court of Appeals panel. In March 2006, the U.S. Supreme Court refused to hear the case, allowing it to proceed in federal court in Alexandria, Va. In October 2006, federal magistrate Liam O’Grady ordered The New York Times and Kristof to reveal three confidential sources Kristof used. Kristof refused to reveal the sources; the Times appealed the order but lost. As a sanction for not revealing the sources, the judge ruled that the Times could not use information from those sources in its defense against the libel suit.

A trial was set for Jan. 29, 2007, but on Jan. 12, U.S. District Judge Claude M. Hilton dismissed the case. Responding to a motion for summary judgment filed by Kristof in December, Hilton found Hatfill to be “a public official and public figure.” As a public figure, Hatfill had to meet a higher burden of proof to win a defamation suit. He had to show that Kristof acted with “actual malice” in publishing the information in his columns, meaning Kristof had to have knowledge that the statements he made were false or that he had “a high degree of awareness of [their] probable falsity.” After looking at the facts, the judge ruled that Hatfill could not prove the columns were published with actual malice.

Hatfill’s attorney, Mark A. Grannis, appealed on Feb. 2, 2007. Attorneys for Kristof filed a cross appeal on Feb. 27. In March 2008 the 4th U.S. Circuit Court of Appeals upheld the lower court's July decision. On Dec. 15, 2008, the U.S. Supreme Court rejected without comment Hatfill's request to revive his libel lawsuit against the Times.

In August 2004 Hatfill filed a defamation lawsuit against Vassar College professor Donald Foster, Vanity Fair and Reader’s Digest. Foster wrote an article, which was carried by the two publications, in which he used the method of “literary forensics” to link Hatfill to the anthrax attacks.

In February 2007, The New York Sun reported this lawsuit had been settled. The two publications agreed to retract any implication that Hatfill was behind the attacks. Details of the settlement have not been disclosed.

Pierce v. Melton (Closed)
On June 7, 2005, Mississippi Circuit Judge Robert Bailey ruled that Ann Radelat, a reporter for The (Jackson) Clarion-Ledger, must disclose the identity of the person who gave her a confidential memo. The memo from the Mississippi Bureau of Narcotics contained allegations that agents Earl Pierce and Jimmy Saxton had “engaged in serious wrongdoing.” After the newspaper ran a story by Radelat about the memo, Pierce and Saxton sued Frank Melton, former MBN director and current mayor of Jackson, and MBN agent Warren Buchanan, saying the allegations were false and had caused them emotional distress. The lawsuit alleged that Melton had given Radelat the memo and that Buchanan had provided the false information contained in the memo. Radelat was not a party in the lawsuit.

Mississippi has no shield law, but Bailey acknowledged that reporters have a qualified privilege under the First Amendment to protect the identity of their sources. Citing two rulings by the 5th U.S. Circuit Court of Appeals (Miller v. Transamerican Press and In re Selcraig), which contain a balancing test to determine when the privilege is overcome, Bailey found that the plaintiffs had “exhausted all reasonable means” to identify the source of Radelat’s information. It was based on this finding that Radelat was ordered to provide the identity of her source.

In July 2005, Radelat filed an appeal with the Mississippi Supreme Court in an attempt to protect her source. Later that month, however, Melton admitted that he had leaked the memo to Radelat. Melton had previously denied being Radelat’s source. The plaintiffs in the case have filed for an involuntary dismissal of Radelat’s appeal, alleging that Melton’s admission makes the appeal moot. Radelat’s attorney, Leonard Van Slyke, has filed an opposition motion. The plaintiffs filed for an involuntary dismissal of Radelat’s appeal, alleging that Melton’s admission made the appeal moot. Van Slyke then filed an opposing motion. However, in August 2005, Judge Bailey ended the case by entering a default judgment against Melton after Radelat, who was deposed again, admitted what was already known, that Melton was the source of the memo.

New York Times v. Gonzales (Closed by statute of limitations)
A subpoena was issued in September 2004 to two New York Times reporters, Philip Shenon and Judith Miller, by U.S. Attorney Patrick Fitzgerald seeking the telephone records of the two reporters. Fitzgerald is investigating who leaked information of impending government action against two Islamic charities, Holy Land Foundation of Texas and Global Relief Foundation in Illinois. Before the government blocked the assets of the charities and raided their offices in 2001, Fitzgerald said, a Times reporter called each charity for comment, effectively alerting them to the coming actions. Fitzgerald said the reporters themselves were not the targets of his investigation, though whoever told the reporters about the government plans might have violated the law. The Times sued the government, asking the court to stop Fitzgerald from gaining the records from telephone companies and from reviewing any phone records the government already had.

On Feb. 24, 2005, federal Judge Robert W. Sweet of the Southern District of New York ruled that the Times had a First Amendment right to protect the confidentiality of its sources by refusing to give the phone records to the government.

In a 2-to-1 decision on Aug. 1, 2006, a 2nd Circuit panel overturned the district court and ruled that The New York Times and the reporters must cooperate with the government investigation and provide the information requested. The court wrote that the grand jury investigating the leak “has serious law enforcement concerns as the goal of its investigation … at stake … is not only the important principle of secrecy regarding imminent law enforcement actions but also a set of facts — informing the targets of those impending actions — that may constitute a serious obstruction of justice.” The majority concluded “the knowledge of the reporters is at the heart of the investigation” and that no other sources could reliably establish the circumstances of the leak.

Fitzgerald obtained the records but was not allowed to review them until the Times had exhausted all its legal options. On Nov. 27, 2006, the U.S. Supreme Court declined the Times' request to grant a stay of the 2nd Circuit order. The denial allowed Fitzgerald to review the records — however, the statute of limitations for bringing charges against any leakers ran out in mid-December.

Miller v. United States / Cooper v. United States (Closed)
On July 14, 2003, columnist Robert Novak, citing two “senior administration officials” as his sources, published the name of CIA officer Valerie Plame in his syndicated column. The next month, special prosecutor Patrick Fitzgerald issued subpoenas to several reporters, including The New York Times’ Judith Miller and Matthew Cooper of Time magazine, seeking information on who leaked Plame’s name to the press.

Miller conducted interviews and research for an article about Plame but never actually wrote a story. She refused to name her sources when ordered by U.S. District Judge Thomas F. Hogan. Cooper cooperated with Fitzgerald and provided limited testimony when initially subpoenaed. Fitzgerald then issued a second, broader subpoena, with which Cooper refused to comply. Both Miller and Cooper were held in contempt and ordered to spend 18 months in prison; in addition Cooper was fined $1,000 a day. The sentences were suspended pending appeal.

On Feb. 15, 2005, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia ruled that Cooper and Miller had to comply with the subpoenas or face jail time.

In April 2005, the case was appealed to the full D.C. Circuit, which refused to hear the case. A stay was granted to both reporters until the Supreme Court decided whether it would hear the case. The reporters filed separate appeals to the Court.

On June 27, 2005, the Supreme Court refused to hear the cases. On July 1, Time editor-in-chief Norman Pearlstein said the company would turn over all information sought by federal authorities. In addition, Cooper agreed to testify, sparing him from serving jail time. Judith Miller continued to refuse to testify and was taken into custody on July 6. After reaching an agreement with the special prosecutor, Miller was freed on Sept. 29 and testified before the grand jury a day later. Miller said she agreed to testify after her source — identified by the Times as Vice President Dick Cheney’s chief of staff, I. Lewis “Scooter” Libby — released her from her promise of confidentiality. According to the Reporters Committee for Freedom of the Press, her testimony was limited to conversations she had with Libby in July 2003.

Because the reporters testified before the grand jury and turned over the information sought by the prosecution, their lawsuits are effectively finished. However, Plame and her husband, Joseph Wilson, have filed a civil suit against Libby, White House adviser Karl Rove and Cheney. If the suit goes to trial, reporters may be asked to testify.

Lee v. Department of Justice (Settled)
Wen Ho Lee, a former nuclear-weapons scientist at Los Alamos Nuclear Laboratory in New Mexico, filed suit against the Departments of Justice and Energy and the FBI for their alleged violations of his rights under the Privacy Act of 1974. Lee was investigated for suspected spy activities at the weapons lab and was named by several news organizations as the chief suspect in the investigation. He claims that government officials leaked private information about him and his family to the press. Reporters from the Associated Press, CNN, the Los Angeles Times, and The New York Times were held in contempt of court by U.S. District Judge Thomas Penfield Jackson for refusing to disclose the names of the officials who provided confidential information about Lee. In addition Judge Jackson imposed a $500-a-day fine on the reporters until they provided the names. The fine was stayed pending appeal. Lee v. United States DOJ, 327 F. Supp. 2d 26 (D.D.C., 2004).

The U.S. Circuit Court of Appeals for the District of Columbia heard arguments on May 9, 2005. On June 28, the appeals court upheld the contempt-of-court ruling for four of the five journalists involved in the case. The contempt order for New York Times reporter Jeff Gerth was vacated. The Associated Press said it would ask the full nine-member appeals court to review the decision.

On Nov. 2, 2005, the D.C. appeals court denied the request from the reporters to rehear the June 28 decision holding them in contempt. On Nov. 17, 2005, U.S. District Judge Rosemary M. Collyer added Washington Post reporter Walter Pincus to the list of reporters in contempt.

Bob Drogin of the Los Angeles Times, H. Josef Hebert of the Associated Press, James Risen of the New York Times and Pierre Thomas, formerly with CNN and now with ABC News, all filed petitions for writ to the U.S. Supreme Court. The Court, on May 22, 2006, announced that it was delaying any action on this case because it was awaiting the outcome of settlement negotiations between the parties.

On June 2, 2006, the government and all five news organizations reached a settlement with Lee in his privacy case against the government. A total of $1.65 million is to be paid to Lee, with $895,000 to come from the government and another $750,000 from the Associated Press and four other news organizations. The news organizations fought the subpoenas to protect their sources and the settlement was seen as a way for them to keep the sources' identities secret. One possible reason the news organizations wanted to avoid a Supreme Court decision was to avoid an outcome similar to the one concerning former New York Times reporter Judith Miller. In that case, the D.C. Circuit ruled that Miller and Time's Matthew Cooper must reveal their sources or face jail time. After the Supreme Court refused to intervene, Cooper agreed to testify and Miller went to jail for almost three months.

In a June 3 story on the Lee case settlement, the Los Angeles Times quoted its reporter Drogin as saying, “We had fought this for four years and lost at every level. And we thought there was a great risk for the press if we took it before the Supreme Court and lost.”

Price v. Time (Settled)
Former University of Alabama football coach Michael Price sued Sports Illustrated’s parent company, Time Inc., for defamation. Price believed that an article published in the May 12, 2003, issue of Sports Illustrated led to his termination by the university. The article cited anonymous sources who alleged that Price got drunk at a Pensacola, Fla., strip club and later had sex with two women in a hotel.

In part, Price’s suit sought the identities of the anonymous sources used by Sports Illustrated reporter Don Yaeger. Price’s attorneys said they needed the names to determine the accuracy and credibility of the sources and to determine whether the story was published with malice.

In December 2003, U.S. District Judge Lynwood Smith Jr. of the Northern District of Alabama ordered Yaeger to reveal his sources, saying that Alabama’s press-shield law did not apply to magazines (Price v. Time, Inc., Civil Action No. CV-03-S-1868-S). Sports Illustrated wanted to appeal to the 11th Circuit; however, Smith decided that the Alabama Supreme Court should hear the case first (Price v. Time Inc., 304 F. Supp. 2d 1294 (N.D. Ala., 2004)). On April 1, 2004, the Alabama Supreme Court declined to hear the case.

Smith approved the 11th Circuit appeal in May. In June 2004, the 11th Circuit agreed to consider the case, and on July 15, 2005, it issued its decision. The court ruled that Alabama’s shield law does not apply to Sports Illustrated as it does not fall into the category of a newspaper. But the court also ruled that Yaeger did not have to reveal his sources because Price had “not yet exhausted all reasonable efforts” to discover the identity of the confidential source.

On Oct. 7, 2005, the lawsuit was settled. Terms of the settlement were not disclosed. Time officials also refused to discuss whether the magazine or Yaeger had revealed his confidential sources.

U.S. Commodity Futures Trading Commission v. McGraw-Hill (Closed)
The Commodity Futures Trading Commission (CFTC) has been investigating an unidentified energy company for violations of the Commodities Exchange Act. The CFTC said the energy company reported false transaction data to Platts, an energy newsletter published by a division of McGraw-Hill, in an attempt to manipulate the market price of natural gas. Many energy companies use the newsletter to set prices for energy transactions. The CFTC wanted documents from Platts concerning submissions from the energy company to try to identify instances of false reports that affected market prices.

McGraw-Hill argued that Platts is a news publication protected by reporters' privilege and that the information sought is confidential. The company further maintained that the CFTC had neither demonstrated that the information was essential to its investigation nor exhausted all other sources for obtaining the information.

On Oct. 4, 2005, U.S. District Judge Royce C. Lamberth ruled that McGraw-Hill must turn over the information sought by the CFTC. The judge noted that it was easier to overcome the reporters' privilege in criminal cases because enforcement of criminal laws is designed to protect the public. Likewise, because the provisions of the Commodities Exchange Act related to false reporting and price manipulation are designed to protect the public, “the interests are more akin to those in a criminal matter than a purely civil matter,” Lamberth wrote. Using this approach, the judge found “that the information sought goes to the heart of the CFTC’s investigation” and that “the CFTC has sufficiently exhausted alternative sources” for getting the information.

In November 2005, McGraw-Hill filed a motion with the U.S. District Court for the District of Columbia to clarify the October order and for a protective order. The court denied both motions in December 2005. The court handled the motion to clarify as a motion to reconsider, which a court can deny if it believes that previous arguments are merely being reargued. That is how the court ruled, saying the “present motion reiterates arguments already made and ruled upon by this Court.” The court added that “Since McGraw-Hill has not shown good cause for further delay, the investigation should be allowed to continue” and again ordered McGraw Hill to comply with the subpoena.

Ayash v. Dana-Faber Cancer Institute (Default judgment for Ayash)
In 1995, the Boston Globe ran a series of articles concerning the accidental chemotherapy overdoses of two patients at the Dana-Farber Cancer Institute. One of the patients, Globe health columnist Betsy Lehman, died as a direct result of the overdose. In the articles, which were based on information obtained from confidential sources, Globe reporter Richard A. Knox identified Dr. Lois Ayash as the leader of the team overseeing the treatment of the patients and as one of the doctors who countersigned the order that resulted in the overdose. Also published in the articles was information concerning internal investigations and corrective actions taken by Dana-Farber. The Globe later published a correction stating that Ayash did not countersign the order, but stood by the rest of the reports.

Ayash filed suit against the Globe and Dana-Farber for, among other things, libel and breach of confidentiality. As part of her suit Ayash subpoenaed Knox for the identity of the person who disclosed the information about the internal actions taken by Dana-Farber, information that Ayash maintains should have remained confidential.

In 1999, the Massachusetts Superior Court conducted a balancing test mandated by the Massachusetts Appeals Court to determine whether disclosure of the source’s identity was required in regard to Ayash’s claims. The court decided “that Ayash’s need for the information ‘is tangible and substantial and outweighs the public interests in protecting the free flow of information’” (Ayash v. Dana-Farber Cancer Institute, 13 Mass.L Rep. 1, (Mass. Super. 2001)).

Knox and the Globe refused to reveal the source. The court found Knox and the Globe in contempt, which ultimately led to a $2.1 million default judgment in favor of Ayash.

In February 2005, the state’s highest court upheld the lower court ruling. On Oct. 3, 2005, the U.S. Supreme Court refused to hear an appeal by the Globe (Globe Newspaper Co. v. Ayash.)

BALCO steroid investigation subpoenas (Resolved)
In July 2004, two San Francisco Chronicle reporters, Lance Williams and Mark Fainaru-Wada, were asked by U.S. Attorney Kevin V. Ryan to turn over documents and provide names of sources used in connection with their coverage of the Bay Area Laboratory Co-Operative (BALCO) steroid investigation. The Chronicle published articles detailing grand jury testimony from high profile Major League Baseball players. Ryan has requested a formal Justice Department investigation to determine who leaked the information. The reporters have refused to provide Ryan with their sources.

On May 5, 2006, the two reporters were subpoenaed to testify before a federal grand jury concerning their sources. The reporters were called to provide any grand jury transcripts, the packaging in which the transcripts were received and any information concerning the identity of who leaked the documents. The Chronicle filed a legal motion on May 31 to quash the government's subpoenas. On Aug. 15, 2006, U.S. District Judge Jeffrey S. White denied the motion to quash and ordered the reporters to appear before the grand jury to answer questions and produce all materials requested in the subpoenas. On Sept. 21, 2006, Judge White ordered the reporters jailed for 18 months for refusing to testify. Both sides, however, agreed to a stay of the ruling pending an appeal to the 9th U.S. Circuit Court of Appeals.

In February 2007, attorney Troy Ellerman, who represented Conte and Valente in the BALCO trial, revealed that he was the confidential source who allowed the Chronicle reporters to view transcripts of the grand jury testimony. Ellerman agreed to plead guilty to four felony counts of obstruction of justice and disobeying court orders, effectively ending the possibility of jail time for Williams and Fainaru-Wada.

Apple Computer Inc. v. DOE 1 / O'Grady v. Superior Court of Santa Clara Co. (Closed)
Apple Computer Inc. is suing unknown individuals who leaked information about an unreleased product. To obtain the identity of the individuals, Apple issued subpoenas to the Web sites that posted the information. Lawyers for the sites asked the court to block the subpoenas, arguing that online journalists deserve the same First Amendment protection granted to traditional journalists.

On March 11, 2005, Judge James P. Kleinberg of the Santa Clara Superior Court approved the subpoenas, but delayed enforcement of the ruling for seven days to provide time for an appeal. Kleinberg ruled that the leaked information fit into the definition of trade secret, that Apple had the right to keep it confidential, and that it was stolen property. The judge did not address the question of whether or not the defendants were journalists. However, since the release of the information was considered a crime, the reporters’ privilege would not have protected them.

The defendants’ attorneys, who consider their clients journalists, criticized the judge’s ruling. “Case law shows that subpoenaing a journalist must be a last resort,” said Electronic Frontier Foundation attorney Kurt Opsahl, who is representing the defendants, as quoted by CNET “Apple did not use this as a last resort, but did only a perfunctory investigation before going on to subpoena the journalists.”

On March 22, the EFF appealed, saying that the ruling threatened journalistic freedoms, as well as e-mail privacy. At this point, the case name changed to O'Grady v. Superior Court.

On May 26, 2006, the 6th District Court of Appeal reversed the lower court and held that the online reporters and bloggers are entitled to protection under California’s shield law and that they do not have to reveal their sources. The unanimous three-judge appeals panel also ruled that the online reporters are protected by the First Amendment and basically are the same as “traditional” journalists. The court wrote, “If their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.”