Federal Shield Law Could Help Chronicle Reporters Protect Sources, By T.J. Quinn and Teri Thompson
May 6, 2006
For 2 1/2 years, the San Francisco Chronicle’s legal team has fought off the government’s attempts to subpoena the reporters who broke the BALCO steroid story.
Now, the fate of Mark Fainaru-Wada and Lance Williams lies in a judge’s hands or with a federal shield law expected to be introduced in the Senate this week by Judiciary Committee chairman Arlen Specter.
“We’ll ask a federal judge to quash the order,” said Eve Burton, vice president and general counsel for the Hearst Corporation, the parent company of the Chronicle, of the government’s attempts to force the reporters to reveal their confidential sources. “I have a hard time believing a court will put these guys in jail when they’ve done this public service.”
In case that fails, the Chronicle reporters will depend on the passage of Specter’s bill, a federal shield law known as the Free Flow of Information Act. Specter is expected to introduce the Senate version of the bill that would help protect reporters’ sources and material this week. The law will balance the importance of the information to the public against the crime of violating grand jury secrecy laws.
“If terrorism or national security are involved, you might have problems,” Burton said. “If it’s keeping kids from using steroids and keeping baseball clean, you shouldn’t.”
A year after the Daily News overheard and reported portions of Barry Bonds’ grand jury testimony in which he admitted using steroids (although he said he wasn’t aware of what he was using), the Chronicle obtained what were supposed to be secret grand jury transcripts of testimony by Bonds, Jason Giambi and Gary Sheffield. The Chronicle reporters have refused to reveal their sources.
“A couple of years ago they started asking for us to provide them information,” Burton said of the prosecutors. “We’ve not been willing to violate the protection of our sources.”
Because grand jury testimony is taken in secret, it is illegal to leak transcripts from the proceedings, although it is not illegal to possess the transcripts. Witnesses in grand jury actions, such as the players involved in BALCO, are not bound by the secrecy laws.
“Reporters are not subject to the rules governing grand jury secrecy, which apply only to some of the people in the room during those proceedings,” said Chronicle editor Phil Bronstein. “The San Francisco Chronicle unconditionally stands by its reporters in fighting this effort by the government to force them to reveal their confidential sources.”
Lawyers for the Chronicle have been in protracted talks with the Justice Department in an attempt to avoid subpoenas. Those talks, which went all the way to the top of the Justice Department, failed. Unless a federal judge quashes the subpoena or the shield law is passed and retroactively applied, the reporters could face jail time.
The government has sought reporters’ confidential sources in several cases recently, including in the investigation into who provided the name of CIA undercover agent Valerie Plame Wilson, to reporters. Former New York Times reporter Judith Miller spent 85 days in jail for refusing to reveal her source. She was eventually released when the source released her from her promise of confidentiality.
“They are prosecuting cases no other administration has prosecuted over the last three administrations,” said Burton.
The subpoenas were issued in Hearst’s New York offices and were delivered to Fainaru-Wada and Williams, who also recently authored the book “Game of Shadows,” which details extensive steroid used by Bonds and other players.
According to the Bonds’ testimony overheard by the Daily News and excerpts of the testimony reported by the Chronicle, Bonds testified that he used a clear substance and a cream given to him by a trainer convicted in the case, but said he didn’t know they were steroids.
The seven-time National League MVP, two home runs from tying Babe Ruth for second place on the all-time list at 714, has always denied knowingly taking performance-enhancing drugs.
Bonds testified that Greg Anderson, his personal trainer, told him the substances were the nutritional supplement flaxseed oil and an arthritis balm.
Anderson and three others, including Balco founder Victor Conte, have pleaded guilty to distribution charges.
Another grand jury is reportedly looking into whether Bonds committed perjury when he testified in the Balco case.
Fainaru-Wada and Williams issued a statement Friday saying their articles “would not have been possible without the help of many people — people who are whistle blowers in the truest and best sense of the term.”
