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How much protection do the courts provide when journalists refuse to identify sources who may be breaking the law? From…

How much protection do the courts provide when journalists refuse to identify sources who may be breaking the law?

From the Spring 2007 issue of The News Media & The Law, page 28.

By Elizabeth Soja

San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams got an unexpected valentine this year when a surprise announcement by the Department of Justice brought the controversy surrounding the two subpoenaed reporters to a screeching halt.

According to a Feb. 14 press release, Colorado defense attorney Troy Ellerman admitted that he allowed Fainaru-Wada to take detailed notes — not once, but twice — of secret transcripts of federal grand jury testimony during the investigation of the Bay Area Laboratory Co-Operative, known as BALCO.

Fainaru-Wada and Williams used the leaked grand jury testimony of athletes such as Barry Bonds and Jason Giambi for Chronicle articles and for their Major League Baseball steroids exposé book, “Game of Shadows.”

The reporters have not confirmed that Ellerman was in fact their source, citing their promise of confidentiality.

While Ellerman’s admission assured that the reporters would not face jail time for refusing to comply with a grand jury subpoena, the announcement raised new questions about the ethics of shielding a source when that source is engaged in ongoing criminal activity.

Ellerman represented BALCO Vice President James Valente while the company and its executives were being investigated for distributing banned performance-enhancing drugs to athletes. Ellerman also previously represented BALCO founder Victor Conte.

According to the statement issued by the Department of Justice, Ellerman allowed Fainaru-Wada to take verbatim notes of grand jury testimony at Ellerman’s law office in June 2004.

However, in October 2004, Ellerman filed a motion with the court on behalf of Valente to dismiss the “outrageous indictment on the ground of outrageous governmental conduct.” The filing claimed that because someone was leaking the grand jury testimony, Valente could not get a fair trial. Ellerman’s motion was ultimately denied.

Additionally, Ellerman claimed to be angry about the testimony leaks during the investigation and even filed a declaration under penalty of perjury saying that he did not know the source of the leaks, according to the Justice Department.

Just weeks after these filings, Ellerman again allowed Fainaru-Wada to take notes on more grand jury testimony. After authorities received a tip that Ellerman was the source, Ellerman pleaded guilty 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, according to court filings. All of these offenses are federal felonies.

‘No less reprehensible’

But should the fact that Fainaru-Wada apparently knew Ellerman was trying to illegally use the “leak” to his client’s advantage have made a difference when Fainaru-Wada allegedly returned for the second time to take notes on the testimony?

The reporters have been criticized by journalists, readers and government officials for keeping their promise of confidentiality in the face of Ellerman’s fraud.

In a March 19 article in Legal Times, Randall Eliason, former chief of the public corruption/government fraud section of the U.S. Attorney’s Office in Washington, D.C., called the reporters’ actions “deplorable” and wrote that they acted “as part of a criminal scheme to obstruct justice,” all the while “profiting from [Ellerman’s] crimes and portraying themselves as victims.”

Unlike lawyers, journalists do not have a legally imposed code of ethics. The Society of Professional Journalists’ nonbinding code of ethics says that a journalist should consistently “question sources’ motives before promising anonymity,” but there is nothing in the code that suggests a source’s criminal activity waives a journalist’s duty to keep promises of confidentiality.

In 1972, the U.S. Supreme Court weighed in on whether a confidential source’s illegal conduct should make a difference to a reporter.

In the landmark case Branzburg v. Hayes, the court distinguished anonymous sources who are “engaged in criminal conduct” from sources who simply fear that speaking to the news media will “threaten their job security or personal safety or that it will simply result in dishonor or embarrassment.”

The court said that it could not “seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source . . . on the theory that it is better to write about crime than to do something about it.” The court also noted “crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not.”

In the end, the court refused to find a heightened First Amendment privilege for any reporter subpoenaed to appear before a grand jury.

‘Justice was ultimately served’

In practice, some media attorneys think the legality of the source’s conduct should be irrelevant in government proceedings.

Lee Levine, an attorney who has argued news media cases before the U.S. Supreme Court, said that a source’s motives or illegal conduct should not be an issue, as long as the reporter has a proper motive.

“In a reporter’s privilege context, a source’s motive or the illegality of his or her conduct shouldn’t matter if the ultimate goal is to disseminate truthful speech about a matter of public concern,” Levine said.

Currently, there is no state shield law in the country that sets out a different standard for compelling the reporter’s information if it is clear that the source is committing some crime. However, a recently proposed shield provision in Utah would have allowed compelled disclosure — whether for a confidential source or newsgathering material — if the “reporter’s failure to disclose the information enables anyone to commit or plan to commit a crime.”

Attorney Edward Carter, a communications professor at Brigham Young University in Provo, Utah, submitted comments on the proposed shield measures, which an advisory committee rejected in April. Carter said cases like BALCO and that of former New York Times reporter Judith Miller could influence state legislatures to include exceptions like this in the future.

However, Carter said that the outcome in the BALCO case is a good example of why an exception of that nature is unnecessary and overbroad. He pointed out that the government has the power to perform its own investigations.

“The court has authority to find out about a source’s crimes in other ways that don’t involve the reporter,” he said.

According to Carter, the system worked in the end and the results were positive from all sides.

“The information got out. Congress got involved and Major League Baseball adopted tougher steroids rules. These are good things that have served the public interest. And finally, justice was ultimately served as to the leaker.”

Furthermore, some think journalists are better left to determine on their own whether a source who is engaging in illegal activity should be granted confidentiality.

According to Levine, it is “wise public policy for the journalist to make the judgment rather than government that a source’s motives are pure or otherwise appropriate,” since in many cases, “one person’s whistleblower is another’s scandal-monger.”

“Whether you think someone is making a disclosure for good motives or bad motives depends on where you sit on the political spectrum, or in the context of the certain controversy that is the subject of the reporting,” he said. “It’s very subjective, so it’s dangerous to entrust the government with task of determining the source’s motives.”

Like Levine, Carter said he believes that the decision about whether to continue to preserve a source’s anonymity should be left to the journalist and not the government.

“Every confidential source has reasons why they want the information to get out, and sometimes we might think those reasons are less desirable than other times,” Carter said.

As a media attorney, Carter said that he would “counsel journalists, as a matter of propriety and ethics if not law, that if they are aware at outset that source will be committing some type of fraud, they shouldn’t grant promises of confidentiality in the first place.”

But Carter said that in the BALCO case, “it seems that the reporters went into it with a good-faith belief that the public needed this information,” and that it is very possible the reporters did not expect Ellerman to go so far as allegedly committing perjury and trying to obstruct justice.

“It’s a pretty extreme situation to have someone who is so bold as to commit that extent of fraud on the court,” he said. “Reporters don’t always know what their sources are going to do. They can’t control what their sources do.”

Criminal contempt

Civil contempt of court might not be a reporter’s only worry if his or her source is clearly engaged in criminal activity. A reporter who refuses to reveal a source who has committed a crime can also be found in criminal contempt of court, which can carry separate and more serious penalties.

Civil contempt of court is meant to coerce an individual into complying with a court’s order, such as a subpoena. Criminal contempt, on the other hand, is intended to punish an individual for refusing to comply.

While Fainaru-Wada and Williams appear to have avoided such criminal charges, other journalists have not been so fortunate.

Reporter Jim Taricani of NBC affiliate WJAR television in Providence, R.I., said he sees many parallels between the BALCO case and his own 2004 case that led to findings of both civil and criminal contempt.

In November 2004, Taricani was held in criminal contempt of court for refusing to reveal the identity of an anonymous source who leaked videotaped evidence in an FBI corruption case involving former Providence Mayor Vincent “Buddy” Cianci Jr.

Like Fainaru-Wada and Williams, Taricani was first held in civil contempt for refusing to reveal his source. After a failed appeal to the U.S. Court of Appeals in Boston (1st Cir.), Taricani was ordered to begin paying steep fines for refusing to identify his source.

The federal trial court noted that in “cases where the source participated in a crime, the [Branzburg] Court also made it clear that the source’s ‘preference for anonymity’ in order to avoid prosecution ‘is hardly deserving'” of any protection.

Taricani’s fines, which were paid by NBC, had reached $85,000 by November 2004. A judge gave Taricani two weeks to reveal his source or face criminal contempt charges since the fines were not having a coercive effect.

When Taricani refused, he was tried and convicted of criminal contempt of court on Nov. 18, 2004. Because of a heart condition, he was sentenced to home confinement for six months.

Before Taricani was sentenced, an attorney representing one of the other defendants admitted to a special prosecutor that he was Taricani’s source. The lawyer, Joseph A. Bevilacqua Jr., later pleaded guilty to perjury and contempt of court.

According to Taricani, the judge in his case “certainly made plenty of reference to the source’s criminal behavior in both his verbal and written commentary. This judge made it very clear that . . . reporters have no privilege under the First Amendment.”

Although he said he was not aware of any other reporters who have recently been found in criminal contempt, Taricani said that reporters “should be very fearful of going before a federal judge on contempt issues.”

Under current law, Taricani said, judges “have so many tools in their back pocket, between fines and prison for both civil and criminal contempt” that a reporter runs the risk of being sent to jail not just to coerce testimony, but also “strictly for punishment” when an anonymous source is acting criminally.

“By the time I was sentenced, my case was entirely adjudicated,” Taricani said. “Everyone had been sentenced. The information was not necessary for the case. This was the harshest punishment that could be doled out to a reporter.”

Taricani said that he was very relieved that Fainaru-Wada and Williams did not have to face jail time for criminal contempt of court. However, he said that he and others have wondered why a case with so many parallels to Taricani’s ended with little to no talk of criminal contempt.

Taricani hypothesized that the judge in his own case was “backed into a public corner” and was “convinced he had to stand his ground and take a hard-nosed approach to make sure I was given a sentence.”

Whatever the reason, Taricani said that the real tragedy is that “reporters are being made criminals for doing their job.” He added, “The Founding Fathers would be rolling over in their graves.”