Chronicle reporters Lance Williams and Mark Fainaru-Wada face jail time for refusing to disclose who leaked them confidential testimony from grand jury proceedings on the “BALCO” steroids scandal. The publication of this leaked testimony got the reporters a book deal, national media attention, frequent front-page Chronicle headlines, and the chance to do what so many of their colleagues have wanted to do for years, which was to damage the credibility of Barry Bonds’ baseball achievements. Publishing illegally leaked testimony hardly constitutes “investigative reporting,” nor is it clear that what the reporters did was in the “public interest.” To the contrary, Williams and Fainaru-Wada did a public disservice by elevating non-credible, unverified testimony in a secret hearing to the status of “TRUTH.” The duo should not go to jail, but their stories failed to address the grand jury’s lack of procedural or judicial safeguards normally associated with our system of justice.
Nobody should want journalists to go to jail for the stories they write, and I certainly do not want Chronicle reporters Lance Williams and Mark Fainaru-Wada to suffer that fate. But opposing their going to jail is different from claiming that their leaking of grand jury testimony on steroid use in baseball represented a “public service,” or that it even served the public interest at all.
Grand jury’s are notoriously anti-democratic institutions that can easily be manipulated by prosecutors—like Kenneth Starr—for political ends. Since these bodies meet in secret, there is no way for independent observers to objectively assess the demeanor or credibility of witnesses, something that is taken for granted in civil and criminal trials.
Although testimony before grand juries is under oath, those familiar with the justice system know that people lie in court all the time. That is why the right to cross-examination of witnesses is so important. Cross-examination enables counsel to catch witnesses in their lies, and ensures that the trier of fact does not give credibility to such testimony.
The Chronicle’s BALCO team was so excited to be revealing juicy details about Barry Bonds’ alleged steroid use that they virtually ignored the significance of the grand jury testimony not being subject to cross-examination. The fact that witnesses had a demonstrated history of lacking credibility, a financial or personal incentive to lie, or had even participated in blackmail-type schemes against Bonds became irrelevant, since none of these issues could be brought out during cross-examination.
I did not read every steroids story the reporters wrote based on being handed leaked testimony, but those I read did not address how the one-sided nature of the grand jury hearing may not be the best way—or even a reliable way—to find the truth. Nor did I read stories where the reporters essentially played the role of cross-examiner, raising the type of bias and credibility issues that Bonds’ attorney certainly would raise if charges are ever brought against him.
The Chronicle reporters published testimony of questionable credibility as if it were an objective historical record. That is not good journalism, and it is not in the public interest.
As the Hearst Corporation appeals the federal court’s ruling that the reporters face jail unless they reveal their sources, we can expect Chronicle editor Phil Bronstein to justify the reporters’ stance in terms of the Pentagon Papers and other landmark First Amendment cases. But as recently became clear in the case of then-New York Times reporter Judith Miller, not all source disclosure cases serve the public interest.
After Miller went to jail for not revealing who disclosed to her the identity of undercover CIA operative Valery Plame, it was learned that Miller’s chief goal was to protect Bush chief of staff Karl Rove. It would have been in the public interest for her to divulge her source, while selfish and likely political ends motivated her non-disclosure.
A baseball steroid scandal does not involve national security. Baseball would have adopted a new steroids policy regardless of the Chronicle’s leaks, and even if we agree that the reporters deserve credit for getting baseball to act, so what? Given all that is going on in the world these days, a new steroid policy for Major League Baseball is hardly an important public policy issue.
(Today’s Chronicle editorial cites George W. Bush’s mentioning of the steroid scandal in his 2004 State of the Union speech as as evidence of the public importance of the reporters work. Given Bush’s lack of grip on reality, this argument hardly boosts the reporters’ argument.)
The Chronicle reporters’ case stands in sharp contrast to that of Josh Wolf, who is in federal jail because he refuses to turn a video over to the government. Wolf’s case is framed as a journalism issue, but the larger question is whether the government should have the right to receive privately-shot videos because it believes it might show evidence of a crime.
I would think even law and order conservatives would object to such a government intrusion.
If those prosecuting Wolf had their way, the government could seize every video of a large protest or social gathering because it might include “evidence” of some crime. The Wolf case would have a chilling effect on American’s right to take private photos and videos, implicating far broader public interests than does the testing of baseball players for steroids.
Williams and Fainaru-Wada enabled the San Francisco Chronicle to break what became a national story. But the Bonds’ steroid scandal remains socially and politically irrelevant, and no amount of talking about the public interest changes this.
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