An update on the Amerithrax story.

Times Is Ordered to Reveal Columnist’s Sources

By NEIL A. LEWIS
Published: October 24, 2006

WASHINGTON, Oct. 23 — A federal magistrate judge has ordered The New York Times to disclose the identities of three confidential sources used by one of its columnists, Nicholas Kristof, for columns he wrote about the investigation of the deadly anthrax mailings of 2001.

The order, issued Friday by Magistrate Judge Liam O’Grady, requires the newspaper to disclose the identities of the three sources to lawyers for Dr. Steven J. Hatfill, who has brought a defamation suit against The Times. The order was disclosed Monday.

Catherine Mathis, a spokeswoman for The Times, said the newspaper would appeal the ruling.

Dr. Hatfill, a germ warfare specialist who formerly worked in the Army laboratories at Fort Detrick, Md., has asserted that a series of columns by Mr. Kristof about the slow pace of the anthrax investigation defamed him because they suggested he was responsible for the attacks.

Five people died in the attacks. Although the federal authorities identified Dr. Hatfill as a “person of interest” in the case, they have not charged him with any crimes.

At a deposition on July 13, Mr. Kristof declined to name five of his sources for the columns, but two have subsequently agreed to release him from his pledge of confidentiality. Judge O’Grady’s ruling identifies the remaining unnamed sources as two Federal Bureau of Investigation agents and a former colleague or friend of Dr. Hatfill at Fort Detrick.

The judge ruled that the laws of Virginia applied and that under that state’s law, reporters have only a qualified privilege to decline to name their sources that may be outweighed by other factors.

He wrote that for Mr. Hatfill to have a chance of meeting his burden of demonstrating that he was defamed by the columns, he “needs an opportunity to question the confidential sources and determine if Mr. Kristof accurately reported information the sources provided.”

Mr. Kristof wrote about a government scientist he initially referred to as Mr. Z, saying he had become the overwhelming focus of the investigation. In August 2002, he wrote that Dr. Hatfill had acknowledged he was Mr. Z. at a news conference in which he said he had been mistreated by the news media.

The lawsuit was originally dismissed by a federal judge in Virginia in 2004. A divided three-judge panel of the United States Court of Appeals for the Fourth Circuit in Richmond reinstated the case and the full appeals court, by a 6-to-6 vote, declined to overturn that ruling. The Supreme Court declined to intervene last March.

Judge O’Grady wrote: “The court understands the need for a reporter to be able to credibly pledge confidentiality to his sources. Confidential sources have been an important part of journalism, which is presumably why Virginia recognizes a qualified reporter’s privilege in the first place.”

He said Virginia law required the use of a three-part balancing test as to whether there is a compelling need for the information, whether the information is relevant and whether it may not be obtained any other way.