Many journalists rejoiced at the news Thursday that two San Francisco Chronicle reporters would avoid jail time for refusing to disclose the source who helped them tell the world about the steroid scandal in major league sports.
But the celebration was quickly joined -- like so many discussions of the nation’s press recently -- by questions about not what the two veteran journalists uncovered, but how they uncovered it.
At least a few Chronicle readers slammed reporters Mark Fainaru-Wada and Lance Williams for granting anonymity to a source with an ax to grind. Journalism experts said the case again underlined the need for caution in handling secret informants.
Such issues have become particularly ripe in recent days, in the midst of the perjury trial of former vice presidential aide I. Lewis “Scooter” Libby. Several prominent reporters in that case have been criticized for granting anonymity to powerful Bush administration sources, who used the secrecy to plant politically charged, and allegedly misleading, information.
“This question is going to come up more and more: Was this source worthy of giving this degree of confidentiality?” said Jane Kirtley, a professor of media ethics and law at the University of Minnesota journalism school.
“Some would say the confidentiality rule applies whether the source is sleazy or not,” Kirtley said. “But if you are going to argue for protection for journalists, isn’t there some obligation to ask questions about whether it’s justified?”
Troy L. Ellerman, 44, pleaded guilty Thursday to two counts of contempt of court, one count of obstruction of justice and one count of filing a false declaration with a federal court for leaking grand jury transcripts to Fainaru-Wada. He could receive up to two years in prison when he is sentenced June 14.
The two Chronicle reporters created a storm in late 2004 when they used confidential transcripts to report on steroid use by famed athletes. They declined Thursday to confirm that Ellerman was the source of the documents, though the lawyer admitted that he had leaked the testimony of, among others, Major League Baseball stars Jason Giambi, Barry Bonds and Gary Sheffield.
He also acknowledged that he had blamed prosecutors for the leak. Ellerman had then tried to use the storm of publicity to argue that his client, James Valente, a vice president for BALCO, could not get a fair trial. The company was being investigated for allegedly supplying illegal performance-enhancing drugs to top athletes.
U.S. Deputy Atty. Gen. Paul J. McNulty, in a news statement Thursday, called Ellerman’s actions “an especially cynical abuse of our system of justice,” adding: “A lawyer secretly and illegally leaked information protected by a court order. He then turned around and filed public motions blaming the government for the leaks and sought to have his client’s case thrown out because of these public disclosures. Such gamesmanship undermines the integrity of the legal system and demands accountability.”
Shortly after Thursday’s plea, the Justice Department withdrew the subpoenas, and the threat of jail time, that had been hanging over the two Chronicle reporters. “We’re pleased and relieved,” Fainaru-Wada said.
The journalists’ actions were called into question, in particular, because Fainaru-Wada returned to Ellerman’s office for a second viewing of confidential transcripts after the source had lied in court, blaming others for the leak. The lawyer permitted Fainaru-Wada to take “verbatim notes” of the grand jury testimony, according to the lawyer’s plea agreement.
Journalism instructors and ethicists said that, although they did not know all the details of the Chronicle duo’s reporting, they would have advised them to constantly review their position with editors -- judging whether the story was justified considering their source’s misdeeds.
“If they were aware their source was not telling the truth publicly, the question I would ask is: Why would they not go back to the source and challenge him on that and hold his feet to the fire?” said Bob Steele, a senior ethics instructor at the Poynter Center, a Florida school for professional journalists.
The reporters then could decide whether they thought the information was so valuable to the public that it warranted continuing the confidential relationship and outweighed Ellerman’s public lies, Steele said.
The highly public skepticism about press tactics, including in the Libby case, makes it even more important for journalists to grant anonymity only when absolutely necessary, several experts said.
Kelli Sager, a 1st Amendment attorney who helped file a friend of the court brief on behalf of the Chronicle reporters, said “journalists should make these promises cautiously and only when it’s of public importance.”
A 1991 U.S. Supreme Court decision made it clear that a reporter’s pledge of confidentiality to a source can be legally binding. In the Cohen vs. Cowles Media case, a Republican campaign operative, Dan Cohen, successfully sued newspapers in Minneapolis and St. Paul for revealing that he had leaked arrest records on a Democratic candidate.
The newspapers’ stories were true, but the revelation of the leak cost Cohen his job. The high court agreed that Cohen had the right to sue for a breach of the verbal confidentiality agreement he had with the reporters.
Nevertheless, many reporters agree that confidential sources can and should be “outed” if they, for example, provide false or misleading information. Some journalism experts even suggest that reporters explicitly tell an informant under what conditions they will no longer keep their name secret.
But Sager said that, practically speaking, reporters are unlikely to impose onerous conditions. “It’s difficult, sometimes, if you try to make the terms of the agreement too clear,” Sager said. “If you essentially hand the source a five-page written agreement with all these conditions under which you will reveal their name, then they are not going to talk to you.”
Orville Schell, dean of the Graduate School of Journalism at UC Berkeley, said that many confidential sources tend to have unsavory motives but that journalists face too great a burden if they try to become judges of all of their informants’ behavior.
“What I think the [Chronicle] reporters are saying in this case is ‘We are journalists. We pledge anonymity and that is the end of story for us,” Schell said. “This guy could embezzle money or something but it’s not our place to make judgments on a source’s morality. Otherwise these relationships would be fraught with endless ambiguity.”
Several readers who posted notes on the Chronicle’s website Thursday tended to be less forgiving. One accused the journalists of allowing Ellerman “to do something that [they] acknowledge is wrong, so long as the end is a good, important story (not to mention a book that can make a lot of money for the reporters).”
Ellerman had called investigators “drunk with power” and described federal prosecutors as “unadulterated punks.”
“The jury pool has been infected and our right to fair trial has been jeopardized,” the lawyer said in December 2004, according to a New York Times story at the time. “It’s alarming. Things are spinning out of control.”
Kirtley said she hopes that the public sees that the Chronicle steroid reporting resulted in two acceptable results.
“Guess what: The guy who did the wrong thing is going to pay the price,” Kirtley said.
“And yet the public still got this important information about steroid use by star athletes.”