NEWS MEDIA UPDATE · NINTH CIRCUIT · Confidentiality/Privilege · Sep. 22, 2006
Judge orders reporters jailed in BALCO subpoena case
Sep. 22, 2006 · Two San Francisco Chronicle reporters will go to prison on contempt of court charges for their refusal to tell a grand jury who leaked them the secret testimony of several professional athletes, a federal judge in San Francisco ruled Thursday.
Under the judge’s order, Lance Williams and Mark Fainaru-Wada will remain out of prison until the U.S. Court of Appeals in San Francisco (9th Cir.) can hear their appeal.
The reporters could spend up to 18 months in jail — the maximum term of confinement for civil contempt under federal rules — for refusing to tell investigators who leaked secret grand jury testimony of several athletes, including Barry Bonds of the San Francisco Giants and Jason Giambi of the New York Yankees. The athletes were being questioned about steroid use in connection with a federal investigation of the Bay Area Laboratory Co-Operative, known as BALCO.
Williams and Fainaru-Wada reported the testimony in newspaper articles and in their book, Game of Shadows. A federal grand jury proceeding is typically conducted in secret and revealing the testimony is a crime, although witnesses can discuss their own testimony.
The reporters were subpoenaed by a federal grand jury in May but have refused to testify. They have asserted a reporter’s privilege under the First Amendment, saying that the interests of a free press outweigh the grand jury’s interest in the information.
Although California has a strong shield law that would allow them to refuse to testify in a state court, there is currently no federal shield law that grants such a privilege.
In August, a court ruled that the government’s interest in the identity of the leaker outweighed the reporters’ First Amendment rights. Last month, federal prosecutors asked that the court order Willams and Fainaru-Wada to prison until they agreed to testify or until the grand jury’s term expires. Attorneys for the reporters asked that the judge impose small fines instead, according to news reports.
In separate statements to the court Thursday, Williams and Fainaru-Wada expressed respect for the justice system but said they simply could not comply with the court’s order to testify.
“I cannot — and will not — betray the promises I have made over the past three years,” Fainaru-Wada said in the statement, reprinted in the Chronicle. “If I were to break those promises, I would be tossing aside everything that I believe as a journalist and a person of integrity.”
Williams told the judge that subpoenaing reporters and sending them to jail could have dangerous consequences in the media.
“I despair for our free press if we go very far down this road,” he said. “Whistleblowers won’t come forward. Injustices will never see the light of day. Our people will be less informed and worse off.”
The Reporters Committee for Freedom in the Press joined in a friend-of-the-court brief on behalf of Fainaru-Wada and Williams.
(In re Grand Jury Subpoenas; Media Counsel: Eve Burton, Hearst Communications, New York; Amicus Counsel: Nathan Siegel, Levine Sullivan Koch & Schultz, Washington, D.C.) — ES