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The extensive support for two San Francisco Chronicle reporters could help journalists faced with similar situations in the future. From…

The extensive support for two San Francisco Chronicle reporters could help journalists faced with similar situations in the future.

From the Winter 2007 issue of The News Media & The Law, page 18.

By Elizabeth Soja

Although the threat of actual jail time for San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams has likely been eliminated, the groundswell of support they received may be a good sign for journalists who find themselves in similar situations.

In February, the Department of Justice announced that Troy Ellerman, a defense attorney who represented two officials from the Bay Area Laboratory Co-Operative (BALCO), admitted disclosing grand jury testimony to one of the reporters and that the department intended to withdraw the subpoenas issued to the Chronicle reporters when Ellerman’s guilty pleas were formally entered in court. (As of mid-February, it was not known whether a judge would accept the plea agreement and withdraw the contempt citations.)

While Fainaru-Wada and Williams probably have been spared from prison, the support they received may provide additional tools to journalists who find themselves in similar situations in the future.

A wide variety of academics, journalism groups and government officials joined three friend-of-the-court briefs supporting Fainaru-Wada and Williams, and politicians spoke out publicly about the case.

The case began in 2004 when the reporters quoted federal grand jury testimony from athletes such as Jason Giambi, who admitted steroid use, and Barry Bonds, who said he did not knowingly take steroids but described using substances that matched descriptions of steroids supplied by BALCO.

The reporters refused to tell investigators how they obtained the testimony, and U.S. District Judge Jeffrey White in San Francisco held Fainaru-Wada and Williams in contempt of court in September. White ordered the reporters to prison but stayed the order while the case was appealed.

In January, Rep. John Conyers (D-Mich.) sent a letter to Attorney General Alberto Gonzales encouraging the Department of Justice to withdraw the subpoenas. Conyers is the chairman of the House Judiciary Committee, where any federal reporter’s shield legislation would likely start in the House of Representatives.

The Jan. 18 letter, co-authored by House Committee on Oversight and Government Reform ranking member Tom Davis (R-Va.), expressed bipartisan support for the reporters and noted that “[t]he American public has been well-served by the BALCO stories” written by Fainaru-Wada and Williams, who “should be lauded, not punished.”

The next day, House Speaker Nancy Pelosi (D-Calif.) wrote Gonzales saying that she wanted to “fully associate [herself] with the views expressed yesterday in the letter” from Conyers and Davis.

Pelosi also expressed support for a federal shield law.

In addition to this plea, dozens of journalist groups, media companies and government officials signed onto friend-of-the-court briefs in support of the reporters and the Chronicle.

In a brief joined by The Reporters Committee for Freedom of the Press, three dozen media organizations argued that “journalism based on so-called ‘leaks’ of information from confidential sources has produced some of the most important and celebrated news reporting in American history.”

The brief sought to convince the court, based on “reason and experience,” that the subpoenas in this case represented a “striking departure” from both long-standing traditions of press freedom in America and the historical conduct of the Department of Justice.

The organizations also argued that the court could find a common law privilege based on the shield laws and court-recognized privileges adopted in a majority of states.

New York attorney David Schulz, who co-authored the brief on behalf of the media organizations, said that “the number of organizations that signed onto this brief is an indication of the concern about the impact that recent decisions are having on reporters’ ability to do their job.”

‘A proper balance’

Members of the news media were not the only ones who came to the reporters’ defense. In another brief filed in support of Williams and Fainaru-Wada, six constitutional scholars and law professors argued that the First Amendment and Supreme Court precedent required the court to perform a balancing test regarding the merits of the subpoenas.

Although many courts interpret the 1972 U.S. Supreme Court case Branzburg v. Hayes as rejecting the idea of a reporter’s privilege, the scholars — including Erwin Chemerinsky of Duke University, Vincent Blasi of the University of Virginia, and Susan Estrich of the University of Southern California — argued that Justice Lewis Powell’s concurrence should control because the First Amendment requires the judiciary to play “an independent and evaluative balancing role in grand jury ‘leak’ cases.”

Powell famously wrote that when a journalist claims First Amendment protection against divulging the identity of a confidential source, the “claim should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony” during judicial proceedings.

Chemerinksy, a constitutional scholar who has argued First Amendment cases in front of the Supreme Court, said that he chose to become involved in this case because it “is such an important case in terms of establishing a reporter’s privilege.”

Although he only signs onto a handful of friend-of-the-court briefs each year, Chemerinksy said this case is important because “it’s high profile, the reporters did absolutely nothing wrong,” and in terms of any kind of balancing test, “the balance is very much in favor of the reporters.”

Additionally, 24 states and the Commonwealth of Puerto Rico filed a friend-of-the-court brief on behalf of Williams and Fainaru-Wada. The states — all of which recognize a reporter’s privilege —
argued in their brief that since a majority of states recognize a reporter’s privilege, a privilege can be recognized on the federal level as “common law.”

The states drew their justification from the 1996 U.S. Supreme Court decision Jaffe v. Redmond that said when the majority of states recognize an evidentiary privilege, federal courts may also recognize it, even if there is no federal law on point. The brief said that “recognition of a less-protective privilege would undermine the states’ protections and chill the speech that the states seek to foster.”

Schulz said that the argument for a common law privilege could be a strong one because “in the context of grand jury testimony, to try and argue a First Amendment privilege is an uphill battle when you’re talking specifically about a grand jury subpoena. I do think in these circumstances, common law might be a compelling argument.”