New York Times Ordered to Reveal Source in Virginia Libel Case
 
December 5, 2006
 
Leo Rydzewski - Washington

A federal magistrate judge in the Eastern District of Virginia has ordered The New York Times to reveal the identities of three confidential sources who Nicholas Kristof, a Times columnist, relied upon in preparing columns about the FBI’s investigation into the anthrax-laden mailings that killed at least five people in 2001. This ruling was affirmed by the federal district judge in charge of the case. Rather than comply with the order, the Times refused to disclose the identities of the sources. As a result, the court issued a sanctions order prohibiting the Times from relying on the information that Kristof received from the confidential sources in defending the claims raised in the lawsuit.

Kristof’s columns are the subject of a libel claim that Steven Hatfill, a physician, bio-terrorism expert and former Army bioweapons scientist who the Justice Department described as a “person of interest” in the anthrax investigation, filed against the Times. Hatfill contends that Kristof harmed Hatfill’s reputation when he implicated Hatfill in the anthrax attacks by criticizing the FBI for what he considered to be an insufficient investigation of Hatfill. The federal government has not charged anyone with a crime and Hatfill has denied any involvement in the attacks.

Beginning in October 2001, not long after the terrorist attacks of September 11, 2001, anthrax-laced letters were sent through the U.S. mail to a variety of private and public parties, including two United States senators. As a result of the mailing and distribution of these letters, at least five persons died, the nation’s postal service was severely disrupted, massive dislocations occurred within the federal government and throughout the country, and the population was terrorized.

Since receiving the “person of interest” designation, Hatfill had his apartment searched three times and was fired from a position at Louisiana State University after a Justice Department official sent an e-mail to the program director directing him not to use Hatfill on any Justice Department-funded programs. Kristof’s confidential sources had indicated that Hatfill had the ability to make anthrax, had access to an isolated residence and had failed polygraph tests. Kristof had refused to reveal the names of three of his five confidential sources, including two FBI employees and one of Hatfill’s colleagues. (Kristof’s other two sources had given him permission to reveal their identities.)

The court concluded that the applicability of a reporter’s privilege is a rule of evidence that is governed by procedural rules and applied Virginia law to the request. Virginia does not have a reporter’s privilege statute, but the Virginia Supreme Court has recognized a qualified privilege against disclosure of confidential sources in public figure defamation cases, holding that a reporter has the right to withhold the identities of confidential sources, but under certain circumstances that right must give way to other concerns. Courts in Virginia thus apply a three-part balancing test to determine whether a reporter should be entitled to the qualified privilege. The court considers (1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.

The magistrate judge concluded that The New York Times was required to reveal the identities of Kristof’s sources so that he could pursue his libel claim. The court found that Kristof’s state of mind was a central issue in Hatfill’s defamation claim, and that in order for Hatfill to determine if Kristof accurately reported the information provided to him, Hatfill would need to take discovery of the confidential sources. According to the court, Hatfill “needs to acquire a full understanding of Kristof’s state of mind and verify the accuracy of the statements from the article.” In addition, the court agreed that Hatfill could not determine the identities of the confidential sources through alternative means because Kristof had not provided enough identifying information about them.

While the court was sympathetic to a reporter’s need to pledge confidentiality to his sources, the court found that this interest must be weighed against a plaintiff’s rights. Thus, until Virginia and other states adopt a reporter’s shield statute, a reporter will be severely limited in assuring sources that the information provided will be held confidential. Even if the reporter is working in a state with a reporter’s shield law, so long as a plaintiff is able to file suit in a state that does not have the shield law, the reporter is at risk of being required to disclose the identity of his or her sources.

For more information, e-mail Leo Rydzewski at leo.rydzewski@hklaw.com or call toll free, 1-888-688-8500.