It seems to happen way too often. Despite policies and laws that forbid law enforcement officials from mentioning the names of suspects who are not yet formally accused or even arrested, leaks invariably seem to happen. The leaks can wreak havoc in the lives of those whose names are mentioned. Many of these people wind up never being charged with any crime, yet their reputations are destroyed by the leaks and resulting media attention.
One example of this is Andrew Speaker, the TB patient whose name was apparently leaked by a law enforcement official and a “medical official” (presumably a medical official of the government). These officials probably committed tortious conduct — there is a good argument that the leaks might be violations of the breach of confidentiality tort. There is also a good argument that the leaks violated Speaker’s constitutional right to information privacy (for a discussion of this right, see my post here) and the Privacy Act (if they were federal officials).
Another example is Steven Hatfill, the so-called “person of interest” that government officials identified as involved in the Anthrax attacks. Hatfill’s reputation was annihilated when these leaks took place. He was never charged with any crime. Hatfill is now suing the federal government for the leaks. But one of the difficulties in suing is identifying the government officials who made the leaks. Hatfill is seeking the names of the officials from several journalists, who are claiming that the names are protected by journalist privilege. From the Washington Post:
Hatfill, a physician and bioterrorism expert, has not been charged in the attacks, in which five people were killed and 17 were sickened by anthrax bacteria mailed in envelopes. In a lawsuit, he accuses the Justice Department of violating the federal Privacy Act by giving the news media information about the FBI’s investigation of him.
To help prove their case, in which Hatfill is seeking an unspecified monetary award, his attorneys want several reporters, including Allan Lengel of The Washington Post, to reveal the identities of law enforcement officials who were cited anonymously in stories about the investigation. The journalists contend that the First Amendment and a federal common-law privilege shield them from having to disclose the names. . . .