SAN FRANCISCO, CA (August 16, 2006) – A federal judge ruled Tuesday that two San Francisco Chronicle reporters must disclose who provided them with secret grand jury testimony given by professional baseball player Barry Bonds and other high-profile athletes about the use of steroid drugs. The ruling could lead to jail for reporters Mark Fainaru-Wada and Lance Williams if they continue to refuse to name their sources.
“Once again, the decision by the court to allow prosecutors to compel testimony from journalists about their sources will have a chilling effect on the First Amendment rights of the press to gather and disseminate the news,” said Mickey H. Osterreicher, a lawyer in Buffalo, NY, who was a newspaper and television photojournalist for three decades. “Who among us would want to divulge any information, knowing that the person they are speaking to will be publishing those facts under a byline that will directly lead the government to then coerce the journalist to reveal their source’s identity under threat of imprisonment?”
U.S. District Judge Jeffrey White said that neither the constitutional right of freedom of the press nor federal law shields the journalists from testifying before a federal grand jury about their confidential sources. Chronicle editor Phil Bronstein said in his newspaper that the Chronicle will appeal White’s ruling to the Ninth U.S. Circuit Court of Appeals in San Francisco.
The subpoenas ordering the Chronicle reporters to testify were issued in early May by a grand jury overseen by the U.S. Attorney’s Office in Los Angeles.
"If this proceeding were in a state court, the California state constitution would fully protect the reporters' confidential sources," attorney Kurt Wimmer of the Washington law firm Covington & Burling LLP told News Photographer magazine today. Wimmer specializes in First Amendment issues, and in a few days he will become a senior vice president and general counsel for Gannett Co. Inc. "Because this happens to be a federal grand jury, the court has found no protection under the law. This is another reason that Congress must pass a federal privilege to match the protections that 32 states and the District of Columbia provide for free expression."
"The grand jury is inquiring into matters that involve a legitimate need of law enforcement,” Judge White wrote in his decision. "The court finds itself bound by the law to subordinate (the reporters’) interests to the interests of the grand jury. A court should not engage in a balancing test that would require it to place greater value on the reporting of certain news stories over others.”
The Chronicle’s legal argument has been that “reporters should not be compelled to testify if the public benefit of their reporting outweighs the harm caused by the disclosure of grand jury material,” according to a Chronicle story by staff reporter Bob Egelko. The Chronicle claimed that stories by the two reporters prompted professional baseball to adopt new rules to police steroid use by Major League Baseball players.
If Fainaru-Wada and Williams refuse to testify before the grand jury, prosecutors can ask the federal judge to hold them in contempt of court and jail them until they agree to testify. The Chronicle says the reporters are going to “stand behind the sources” and will not testify, hoping that a court of appeals will “recognize the public good of the stories ... and ultimately we will prevail.”
In the Chronicle’s coverage of yesterday’s ruling, editor Bronstein said in Egelko’s article, “We will not comply with the government's effort, which we believe is not in the best interests of an informed public. The ruling does not change our complete commitment to Mark and Lance. We support them fully in maintaining the confidentiality of their sources. We will pursue all judicial avenues available to us.”
Prosecutors say everyone with legal access to the grand jury transcripts has signed a sworn statement denying that they were the source of the leaked testimony, according to the Chronicle, and Judge White says that the government "has exhausted all reasonable alternatives'' to summoning the reporters. “Their testimony would appear to be the only firsthand evidence of the source's identity,” White wrote.
California's state shield law protects journalists from being held in contempt of court for refusing to disclose confidential sources, but it does not apply to reporters who are involved in federal cases.
White’s ruling in the Chronicle’s case is just one of several troubling cases currently before the courts that challenge journalists’ relationships with confidential sources.
Also in California, a freelance journalist has been in federal jail since August 1 for refusing to turn over video of a protest rally. Josh Wolf declined a court’s order to produce video that may show someone making an attempt to burn a police car during the rally. The National Press Photographers Association has come out in defense of Wolf and has offered to participate in his defense, along with other organizations that represent press freedoms, and NPPA president Tony Overman led a protest in San Francisco calling for Wolf's release from jail.
Two weeks ago a federal appeals court in New York ruled that the government has the right to examine telephone records of former New York Times reporter Judith Miller and another Times reporting in a leak investigation about who told Miller that the wife of a Bush administration critic was a CIA operative. Miller was held in contempt of court and jailed for 85 days in 2005 for refusing to testify about the identity of her sources.
The National Press Photographers Association, along with several other press organizations, continues to call for the creation of a federal shield law that would protect journalists such as Fainaru-Wada, Williams, Wolf, and Miller, in cases such as these where state shield laws do not apply.
