Federal Judge Orders New York Times To Identify Confidential Sources

A federal magistrate in Virginia has ordered the New York Times to identify three confidential sources used by one of its columnists, Nicholas Kristof, in articles he wrote about the FBI’s investigation into anthrax-laden mailings that killed at least five people in 2001.The order came Friday in a libel suit filed by a former Army scientist who was eventually described by the Justice Department as a “person of interest” in the anthrax probe, Steven Hatfill. He contends that his reputation was besmirched unfairly by Mr. Kristof’s columns, which castigated the FBI for not doing more to investigate Mr. Hatfill.Mr. Hatfill has vehemently denied any involvement in the mailings. No one was ever charged in connection with the case.Magistrate Liam O’Grady ruled that Mr. Hatfill was entitled to know the identities of Mr. Kristof’s sources in order to pursue the libel claim.“In order for plaintiff to meet its burden in the defamation case and offer evidence as to the reporter’s state of mind, plaintiff needs an opportunity to questions the confidential sources and determine if Mr. Kristof accurately reported information the sources provided,” Magistrate O’Grady wrote.The magistrate ordered the Times to identify the sources by tomorrow, but the newspaper filed an emergency motion yesterday asking to stay the deadline while the judge overseeing the case, Claude Hilton, reviews the ruling.If Judge Hilton upholds the order and the Times refuses to comply, the judge could fine the newspaper, take some punitive measure if the libel suit goes to trial, or jail an employee or officer of the Times for contempt.“These days it seems courts kind of like the monetary sanction,” a professor of press law at the University of Minnesota, Jane Kirtley, said. “Jail is possible, although in my experience that’s pretty rare in libel cases.”Ms. Kirtley said the judge could instruct jurors to assume the sources in question did not exist, a finding that she said “essentially means” the Times would lose the suit.Magistrate O’Grady said one reason testimony from the sources was needed is that discrepancies have arisen between sources Mr. Hatfill’s legal team has been able to identify and Mr. Kristof’s accounts of his conversations with those sources. According to Mr. Hatfill’s lawyers, a SUNY Purchase biologist who served as a source for the columnist, Barbara Rosenberg, denied Mr. Kristof’s claim that she said Mr. Hatfill was certain to have the ability to make “first-rate anthrax.”Ms. Rosenberg also initially denied having asked for confidentiality, as the Times asserted, but she later said she might have.A spokeswoman for the Times, Catherine Mathis, said in a statement that Mr. Kristof “clearly recalls” getting information on condition of anonymity from Ms. Rosenberg. The spokeswoman also said Mr. Kristof’s promise “was consistent with Times policy.”Lawyers for the Times argued that Mr. Kristof’s sources were entitled to protection under so-called reporters’ shield laws on the books in New York and Maryland, but Magistrate O’Grady ruled that Virginia law applied and offered no quarter to the newspaper.The Times also argued unsuccessfully that any order to disclose sources be delayed until the court determines whether Mr. Hatfill should be considered a public figure.Only the last of the five columns at issue in the suit actually identified Mr. Hatfill by name. The other four described him in a way he contends allowed friends and acquaintances to recognize him.In 2004, Judge Hilton dismissed the libel case, ruling that Mr. Kristof’s columns did not accuse Mr. Hatfill of being the anthrax mailer. However, last year, a panel of the 4th Circuit Court of Appeals voted, 2–1, to reinstate the suit. “A reasonable reader of Kristof’s columns likely would conclude that Hatfill was responsible for the anthrax mailings,” Judge Dennis Shedd wrote for the majority.The Times sought a review by the full bench of the 4th Circuit and by the Supreme Court, but both declined to take up the case.Mr. Hatfill, who claims to have been rendered unemployable by the anthrax-related publicity, is also pursuing a Privacy Act lawsuit against the federal government and a separate libel suit over Vanity Fair and Readers Digest articles about the anthrax mystery.

Federal Judge Orders New York Times To Identify Confidential Sources

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