Journalists Ordered to Testify in Bonds Case

A federal judge in San Francisco ruled Tuesday that two reporters must reveal who provided them with secret grand jury testimony of Barry Bonds and other star athletes on steroid use.

Attorneys for the San Francisco Chronicle reporters had tried to quash a subpoena to appear before a grand jury investigating the leak. They argued that forcing journalists to disclose their sources would undermine the 1st Amendment and the ability of the news media to gather news.

U.S. District Judge Jeffrey S. White acknowledged the importance of the news media in “bringing issues to the forefront of public attention” and how confidential sources “are often essential ... in that task.”

But he ultimately agreed with federal prosecutors that journalists have no special protection from grand jury inquiries, citing the 1972 Supreme Court decision in Branzburg vs. Hayes, as well as subsequent rulings from appellate courts.

“The court finds itself bound by the law governing this case to subordinate the [reporters’] interests to the interests of the grand jury,” White wrote.

He noted that the secrecy of grand jury proceedings was critical to the system of justice and outweighed the news media’s need to promise confidentiality to sources possessing vital information.

The reporters plan to appeal the decision to the U.S. 9th Circuit Court of Appeals.

“We are deeply disappointed with the court’s decision but note that the court acknowledged the important 1st Amendment interests at stake,” said Eve Burton, counsel for Hearst Newspapers, which owns the Chronicle.

“Judge White clearly felt constrained by the court of appeals’ decisions, and that is where we are headed next. We believe we will ultimately prevail, and that is clearly what is in the public’s best interest.”

Phil Bronstein, editor of the Chronicle, said Tuesday, “We will not comply with the government’s effort, which we believe is not in the best interests of an informed public.

“We will pursue all judicial avenues available to us,” he said, according to the newspaper’s website.

Reporters Mark Fainaru-Wada, 41, and Lance Williams, 56, were subpoenaed to a federal grand jury in May to reveal who provided them with testimony of baseball stars Bonds, Jason Giambi and Gary Sheffield in the federal probe of the Bay Area Laboratory Co-Operative.

The reporters used the testimony as part of a series of stories on steroid abuse that sparked national debate and pushed Major League Baseball to impose punishments on steroid users.

Both said they would not reveal their sources, even if that meant that a judge held them in contempt of court and sent them to jail.

The Justice Department has increasingly sought to compel journalists to give up confidential sources in recent years, most notably when it subpoenaed former New York Times reporter Judith Miller and Time magazine correspondent Matthew Cooper to testify in the investigation over the leak of the identity of CIA operative Valerie Plame.

But media advocates say the BALCO case has lowered the bar for subpoenaing journalists.

“This kind of case does not rise to the level of the Judith Miller case,” said Joel Campbell, co-chairman of the Freedom of Information Committee of the Society of Professional Journalists, which argued against the government action in the Miller case.

Campbell said the harm to society is not just an abstraction.

“As a journalist, if your sources know you’re going to be pulled into court to testify, the sources are going to dry up. And there’s going to be a chilling effect on the ability of the press to perform its role in society.”

At a hearing on Aug. 4, attorneys for Fainaru-Wada and Williams argued that the 1972 Supreme Court ruling left some latitude, and that numerous subsequent court decisions had created a common law privilege for reporters to protect their sources in all but the most extraordinary circumstances, such as threats to national security.

Attorney Jonathan Donnellan said that the leak in this case did not hinder the BALCO investigation.

But White took umbrage with the assertion that the leak was innocuous. He noted that Greg Anderson, Bonds’ trainer, cited the leaks when he refused to testify before a grand jury.

White also read the case law differently, saying the 9th Circuit concluded in 1993, citing an earlier ruling, that “it would be difficult to argue for a common law reporter’s privilege to withhold confidential information from a federal grand jury.”

And White said that other circuits that have recognized a privilege for reporters to maintain the confidentiality of their sources have made clear that those cases did not involve grand jury inquiries.