NEWS MEDIA UPDATE · CALIFORNIA · Confidentiality/Privilege · Aug. 16, 2006
Judge orders San Francisco reporters to testify or face jail
Aug. 16, 2006 · A federal judge yesterday ordered two reporters to comply with a subpoena ordering them to tell a federal grand jury who gave them grand jury testimony regarding a criminal investigation into the Bay Area Laboratory Co-Operative (BALCO) and its connection to steroid abuse by professional athletes.
U.S. District Judge Jeffrey White of the U.S. District Court in San Francisco rejected a motion from San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada to quash the government’s subpoena, turning away their claim that the First Amendment and federal case law protects reporters from identifying confidential sources.
Judge White ruled that the grand jury’s interest in the information outweighed the First Amendment issues in the case.
The reporters are seeking a stay of Judge White’s decision while they appeal to the U.S. Court of Appeals in San Francisco (9th Cir.).
“We’re steadfast and resolute in that we’re going to stand behind the sources,” Fainaru-Wada told the Chronicle.
Even though the reporters lost their motion, some media attorneys said the ruling was not as bad as it could have been.
“I got the impression that this decision was a little bit better because it seemed like the District Court had a little bit of sympathy for the reporters’ position and thought that there really were serious arguments on their side,” said Nathan Siegel, who wrote a friend-of-the-court brief for numerous media organizations, including The Reporters Committee for Freedom of the Press. “But he made it clear that he felt constrained by Ninth Circuit precedent, which is probably some of the worst, from the press’s point of view, that there is on this issue.”
Since the judge appeared to be sympathetic to the reporters’ issue, Siegel is hopeful that will translate into a stronger appeal.
“I thought that the tenor of this opinion . . . might send a somewhat more sympathetic signal to the appellate courts than the opinions in the Judy Miller case, Wen Ho Lee case, the [Jim] Taricani case in which you had very harsh opinions coming out of the district courts pretty strongly discounting the notion that there could be any serious First Amendment-type of interests presented,” Siegel said. In the Miller, Lee and Taricani cases, reporters in two federal circuits — the Second Circuit and the District of Columbia — failed to convince judges that a federal reporter’s privilege exists.
In yesterday’s ruling, Judge White dismissed the argument that the First Amendment provides journalists with a qualified privilege, finding that no previous cases in which a First Amendment privilege was found involved grand jury situations.
Citing the only U.S. Supreme Court case involving the reporter’s privilege, 1972’s Branzburg v. Hayes, Judge White ruled that “the First Amendment does not provide [the reporters] with a basis to refuse to appear before a grand jury to answer questions and produce documents or objects requested in the subpoena.”
White also cited Branzburg to rule that no privilege exists under common law even though all but one state — Wyoming — has a either a shield law or a common law privilege.
White wrote that the U.S. Federal Court of Appeals in San Francisco’s “position on the issues appears to be clear to this Court: unless and until the Supreme Court states that a common law reporter’s privilege exists, or unless Congress enacts such a privilege, Branzburg‘s mandate is binding.”
Even if a privilege exists, the government still would have overcome the privilege by exhausting all alternative sources and showing that the testimony sought was not cumulative, and that it is clearly an important issue to the case. The “Court concludes that the Government has satisfied its burden to overcome the assertion of any such privilege,” White wrote.
The government subpoenaed the reporters in April to discover who leaked grand jury testimony to them about a grand juty investigation into an alleged BALCO conspiracy to distribute anabolic steroids.
When the government turned over nearly 2,000 pages of grand jury transcripts to the court in 2004, the court issued a protective order sealing all of the testimony. The testimony was quoted in articles Williams and Fainaru-Wada wrote later that year about allegations that numerous baseball players were consistently using steroids provided by BALCO. The reporting eventually led to a congressional hearing and Major League Baseball changing its drug testing policy.
“My guess is that the facts in this case do seem more sympathetic than others because there’s no real question that this reporting did break a major national news story that a lot of people think did a lot of good,” Siegel said. “The facts seem to have influenced the tenor of the opinion even without changing the result.”
(In re Grand Jury Subpoenas; Media counsel: Eve Burton, Hearst Communications, New York; Nathan Siegel, Levine Sullivan Koch & Schultz, Washington, D.C., for amicus parties) — CM