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Friday, September 22, 2006
Game of Shadows' Authors to be Jailed: Rethinking the Reporter's Privilege

San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada are set to be jailed unless they agree to testify about who leaked them grand jury testimony regarding Barry Bonds and other players alleged to have used illegal steroids (update: also check out an excellent post by Jeffrey Standen on this topic on his new blog on sports law). Back in March, we discussed their popular book, Game of Shadows, which was heavily based on confidential sources, and how Bonds sued them for libel. But yesterday, U.S. District Judge Jeffrey White rejected the reporters' request for a monetary fine or house arrest, reasoning that prison time would best compel them to testify before the grand jury. Williams and Fainaru-wada won't have to report to jail until their appeal is heard by the U.S. Court of Appeals for the Ninth Circuit.

Judge White's decision is based on Branzburg v. Hayes, 408 U.S. 665 (1972), where Justice Byron White, writing for the Majority, held that "reporters, like other citizens," must "respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial."

In other words, Justice White--a former NFL running back and Rhodes Scholar--reasoned that reporters don't deserve to be treated with less scrutiny than an ordinary citizen. Moreover, White argued, citizens should have an obligation to reveal information that could protect fellow citizens from unfounded prosecutions, and that obligation outweighs any First Amendment privileges, even for reporters. Interestingly, Branzburg was also cited for the jailing of New York Times reporter Judith Miller when she refused to reveal to special prosecutor Patrick Fitzgerald the name of the source who told her about Valerie Plame.

The opposing view to Branzburg is, of course, that our democratic institutions are strengthened by confidential relationships between reporters and their sources. Without those relationships, we may have never learned about Watergate, Iran Contra, or the Lewinsky Scandal, among other instances of government corruption. While that line of reasoning may not seem as powerful in the context of sports corruption, it nevertheless proves relevant.


Thanks. Good post. Journalists are not heroes, nor are they above the law, nor is this the same era as "All the President's Men." When ordered by a court, a jounralist must comply or face the consequences. If one disagrees, the lawyers can appeal and debate. Talk of creating a federal media shield law has ensued. Maybe it will succeed, maybe it will fail. However, outright refusal to comply makes one, indeed, a bonafide criminal. ON THE OTHER HAND, I feel their pain and they certainly added value to American society in their expose about what really goes on in pro sports and the BALCO case. Ironic that a California judge's decision appears so conservative. At that same time, one simply looks at his or her calendar and counts down the days until the 9th Circuit will overturn the trial court's decision to jail the authors for non-compliance with an order and the authors enhance their profile and sell their story to Hollywood.

Anonymous Anonymous -- 9/22/2006 11:27 AM  

Great post. I like how you bring out both sides of this issue in a very understandable way, and after reading your post, both sides actually make a lot of sense. This is a tough call.

Anonymous Steven P. -- 9/22/2006 11:38 AM  

I'm just not sure that the same policy implications abound with respect to providing a shield law for this story as opposed to the instances where reporting involved national corruption implications. The underlying principles are the same but to argue that this story equates to those more serious instances where reporters uncovered and published on matters of great governemental importance is probably not legitimate.

Anonymous Anonymous -- 9/22/2006 12:12 PM  

Amen to the FIRST part of the FIRST comment.

Anonymous Anonymous -- 9/22/2006 2:51 PM  

Although sports corruption is actually less important than Watergate, Iran/Contra, etc., Congress thinks drugs in sports are important enough to hold hearings.

No comment on whether sports corruption is or isn't as important as Monica Lewinsky.

Personally I hope the journalists stick to their guns. However, compelling them to reveal the grand jury leak isn't about protecting Barry Bonds' rights, in my view. It is about protecting the integrity of the grand jury process. If the journalists are protected in this case, will it encourage grand jury leaks?

Blogger ChapelHeel -- 9/25/2006 8:14 AM  

Real simple: follow judge's order or go to jail. You don't follow order, you go to jail. If you want to say that journalists should have the same privileges as lawyer-client or priest-penitent, etc., that is fine. Say it in jail or change the law.

Anonymous Anonymous -- 9/25/2006 10:57 AM  

It would seem to me that this decision by the judge is not so curious under the principle of stare decicis. I was under the impression that Branzburg v. Hayes made it very clear that reporters were not shielded from testifying (and divulging sources) before a grand jury.

Now whether Branzburg v. Hayes was a wise decision is another matter.

Anonymous Jason Chung -- 9/28/2006 2:05 AM  

(Sorry, I accidentally hit publish before I was ready)

I would argue that Branzburg v. Hayes is an uncomfortable but necessary decision. While I am an advocate for the freedom of the press, I view Branzburg as more of a protection for average citizens. Via Branzburg, the Court clearly reminded the press corps that they were subservient to the law and could be called upon to divulge their methods and sources in the context of the search for justice. By reinforcing judicial power, it is likely that the Court mitigated the likelihood of libel or slander of a press armed with the explosive power of "anonymous sources".

Clearly, Stephen Glass and Jayson Blair are good examples of the fallacy of human nature, even among professional reporters, and of the necessity for courts to retain the right to question reporters regarding their tactics and acquisition of information. The interest of protecting the Fourth Estate cannot outweigh the protection of citizens FROM the press.

Anonymous Jason chung -- 9/28/2006 2:17 AM  

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