California Reporters Face Jail for Breaking Story on Steroid Use
October 2, 2006
Eric Dorkin - Chicago
The federal government has agreed to delay the enforcement of an 18 month prison term handed out to two San Francisco Chronicle reporters who have steadfastly refused to turn their sources over to a grand jury following the denial of their motion to quash the government’s subpoena. The reporters and the government agreed to stay the recent ruling pending the appeal to the Ninth Circuit Court of Appeals of U.S. District Judge Jeffrey White’s decision, in In re Grand Jury Subpoenas to Mark Fainaru-Wada and Lance Williams, rejecting the reporters’ motion to quash grand jury subpoenas.
The government issued the subpoenas in connection with the federal investigation of steroid use involving famed baseball slugger Barry Bonds and The Bay Area Laboratory Co-Operative (BALCO.) In addition to their work for the newspaper, the reporters included some of the leaked materials in their recent book Game of Shadows: Barry Bonds, BALCO, and the Steroids Scandal that Rocked Professional Sports. The leaked material included information the reporters received about confidential grand jury testimony – including, perhaps, grand jury transcripts – from confidential sources.
Prosecutors contended the sources’ leaks violated a stipulated protective order barring disclosure of the transcripts, as well as the secrecy protections of Federal Rule of Criminal Procedure 6(e). A new grand jury investigating the leaks issued subpoenas requiring the two reporters to testify and produce documents regarding their confidential sources. The reporters filed a motion to quash before Judge White of the U.S. District Court for the Northern District of California.
Acknowledging that “both parties’ arguments raise important policy considerations and concerns,” Judge White ruled that the case was controlled by the U.S. Supreme Court’s decision in Branzburg v. Hayes, which he interpreted to hold that the First Amendment does not relieve reporters from testifying. In Branzburg, a 5-4 decision, the Court in 1972 ordered that three reporters were required to testify to grand juries about their observations of alleged crimes. While the majority and concurring opinions in Branzburg left room for reporters to challenge subpoenas issued for improper reasons, in this case, Judge White held that the reporters failed to show any abuse of the grand jury process.
Judge White also rejected the reporters’ arguments that he should recognize a common-law reporter’s privilege under Federal Rule of Evidence 501. While acknowledging that a “large number of states” have now adopted a privilege under state law, he declined to follow that trend on the ground that “federal courts generally have been reluctant to follow the lead of the states, in the context of grand jury proceedings.” Judge White further held that even were there a common-law reporter’s privilege, it would be overcome by the facts of this case. He expressly refused to apply the balancing test recently articulated by Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit in In re Grand Jury Subpoena, Judith Miller, in which a New York Times reporter went to jail for 85 days to protect a news source. Under Judge Tatel’s test, before enforcing a subpoena to reporters, the common law requires a court to balance “the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information’s value.” Judge White in the San Francisco case wrote that “Branzburg [counseled] against” Judge Tatel’s approach because it would require courts to make value judgments that “a legislature had declined to make” and therefore would require judges to make law.
In ordering the reporters’ testimony, Judge White applied the three-part balancing test set forth in the Ninth Circuit’s precedent, and he held that: (i) the government had exhausted all reasonable alternatives to discovering the source of the leak; (ii) the reporters’ information was the “only first hand evidence” of the leaker’s identity, and thus noncumulative; and (iii) the sought-after information was clearly relevant to an important issue in the case, as ascertaining the leak’s identity was the very purpose for empanelling the second grand jury. As a result, Judge White ordered the two reporters to testify and provide responsive documents.
Judge White turned aside the reporters’ final argument that the subpoena would be unreasonable or oppressive in violation of Federal Rule of Criminal Procedure 17. The reporters argued that public interest in maintaining the flow of information outweighed any interests the grand jury might have, even in the absence of a First Amendment or common-law privilege. The reporters also argued that disclosure of their source(s) was oppressive because it would force them to go back on their “promises to whistle-blowers,” thereby jeopardizing their professional standing and livelihood. Judge White rejected those claims, holding that the reporters offered only “generalized assertions,” and failed to identify a “specific and particular relationship [that] will be destroyed” by their compelled testimony.
For more information, e-mail Eric Dorkin at eric.dorkin@hklaw.com or call toll free, 1-888-688-8500.