San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams should not go to jail if they do not reveal their source for stories on a grand jury investigation into steroids in sports. For one thing, they haven't broken any laws.
The U.S. Attorney's office in Los Angeles subpoenaed Fainaru-Wada and Williams to find out who leaked grand jury transcripts in violation of a court order. Apparently, prosecutors have been unable to identify the leaker, so they have resorted to the heavy-handed threat of incarceration in order to intimidate the reporters into breaking their pledge of confidentiality.
U.S. District Judge Jeffrey White ruled last week that the law compelled him to deny a motion made by Chronicle lawyers to quash the subpoenas.
Trial attorney John Keker told me White ruled correctly because, "The feds have the law on their side," even if "they don't have common sense or good policy on the side."
As for those of you who see the prosecutors' heavy-handed play as a well-deserved comeuppance for arrogant journalists, you should understand that the same rules that allow the courts to jail reporters who won't give up sources can be used against any citizen who will not want to testify against a sibling, a co-worker or a neighbor.
That's why you want the courts to use discretion and take circumstances into consideration. In this case, prosecutors should note the federal government's history of not going after journalists unless the national security depends on it, a state law that shields California reporters and the fact that the two reporters stand to serve more time than any defendants.
Mark Corallo, who worked as spokesman for former Attorney General John Ashcroft, signed an affidavit for the Chronicle. He noted that Ashcroft took the steroids case so seriously that he announced the 42-count indictment against individuals tied to BALCO (Bay Area Laboratory Co-Operative) on television.
Still, Corallo believes the Department of Justice under Ashcroft -- a veritable Satan to many civil libertarians -- would not have served subpoenas on Fainaru-Wada and Williams. Corallo himself approved only one subpoena for a media person, and that was for a matter of "grave national security."
"In the balance that is required under the DOJ guidelines," he wrote, "the public's interest in the free dissemination of ideas and information clearly outweighs the public's interest in effective law enforcement and the fair administration of justice -- particularly in a case where the BALCO criminal defendants plead guilty and have served their sentenced time in prison."
The longest prison term served by a BALCO defendant was four months behind bars -- yet Fainaru-Wada and Williams could face up to 18 months, a full grand-jury term, for reporting leaks about the BALCO case.
Corallo summed up the reporter subpoenas as "a waste of government and taxpayer resources." In an affidavit, California Attorney General Bill Lockyer argued that the reporter subpoenas undermine the state reporter's shield law, which was supported by 75 percent of voters in 1980: "To jail a journalist because he protected his source is an assault not only the press, but on Californians, as well."
Yes, my view is colored by my profession. I know how important it is for sources to believe a journalist's promise to protect their identity.
But I don't argue that reporters are above the law. If Fainaru-Wada and Williams break into someone's home to get information, they should go to jail.
Keker told me, "From the government's point of view, it's a much more serious thing to stand up to the government than it is to commit a crime." Must be true -- otherwise, the feds would want to reserve prison for real criminals.