Erosion of the First Amendment, thy name is libel

In a fit of self congratulation, the Globe editorialized this morning on the merits of an appeals court decision that tossed out the contempt charge against Hamilton Spectator’s Kenneth Peters for failing to report his sources to a lower court (a cut-and-dry case of spiteful judicial overreach). Meanwhile, a darker, more consequential, case plays out south of the border. There was a piece in The New York Times yesterday on the ongoing case of Dr. Steven Hatfill. Hatfill, you might remember, is the government scientist wrongly identified as a “person of interest” in connection with the sending of anthrax-laced letters to U.S. senators in the early part of the decade. Hatfill sued the government for violating his privacy by leaking information about him to the press. He also sued The New York Times (among others) for publishing that information and thereby libelling him.

Reading the piece in the Times, you’d think Hatfill was a one-man First Amendment–wrecking crew. Hatfill wants to know who was leaking, and since the government won’t tell him, he’s asked the judge to order journalist Toni Locy (formerly of USA Today) to give up the names. Judge Reggie Walton—he of Scooter Libby fame—has, pending appeal, ordered Locy to pay fines of up to $5,000 a day. “The actions against Ms. Locy, 48, are unlike any taken by an American court according to First Amendment lawyers, media associations and companies that have petitioned the court on her behalf,” reports the Times. “They say that Judge Walton’s decision last month to hold her in contempt of court sets a precedent that would chill the routine workings of the press.”

Oddly enough, there’s not much reporting on the other side of the issue. In August of last year, in making his first ruling in favour of disclosure, Walton wrote, “Denying civil litigants access to the identity of government officials who have allegedly leaked information to reporters would effectively leave Privacy Act violations immune from judicial condemnation while leaving potential leakers virtually undeterred from engaging in such misbehaviour.”

And I can tell you from my observations during the Conrad Black trial that certain elements of the press and the DOJ skated very close to the wind. It will be interesting to see if this remains the case.

• With Order to Name Sources, Judge Is Casting a Wide Net [New York Times] • Sources to be valued [Globe and Mail] • 5 Reporters Ordered to Testify About Government Sources [New York Times]