Two Sportswriters Go To Jail, And The Rest Go Nuts

Mark Fainaru-Wada and Lance Williams, the two San Franciso Chronicle reporters who blew the lid off the BALCO grand jury and further shed light on Barry Bonds' steroid use, are now facing 18 months of jail time for refusing to disclose the source of the grand jury leak...

Lance Williams and Mark Fainaru-Wada won't have to report to prison pending their appeal of Thursday's ruling, which could keep them behind bars for more than a year.

The reporters repeatedly have said they would rather go to jail than reveal how they obtained the transcripts from a grand jury that investigated the Bay Area Laboratory Co-Operative. The pair published a series of articles and a book based partly on the leaked testimony by Bonds, Jason Giambi and others.

"I'm supposed to keep my promises when people help me and take me at my word," Williams said in court Thursday. "I do despair for our country if we go very far down this road, because no one will talk to reporters."

U.S. District Judge Jeffrey White rejected the reporters' request for simply a monetary fine, or even house arrest, saying that prison time would best compel them to testify before the grand jury investigating the leak.

"The court is hopeful that perhaps they'll reconsider their position when faced with the reality of incarceration," White said.

I admire the reporters for sticking to their principles... but the judge is also right to send them to prison for it.

The political press went through this during the Plame imbroglio. Much as the press would like to be some protected elite, they're not, particlarly in a world where just about anyone with a computer can practice some form of journalism -- not necessarily of the highest quality in every instance, but it's not like the mainstream media is flawless (see Blair, Jayson and Rather, Dan).

Of course, the press doesn't get this. Sportswriters are distraught. Check out Rick Telendar in the Chicago Sun-Times, talking about how he and many other sportswriters showed up to support their brethren...

The men's research tore the lid off the steroid abuse in major-league baseball, helping a nation understand and react to the sad fraudulence that had rooted itself like crabgrass in America's pastime.

Their reward?

Subpoenas to give up their private sources of grand-jury testimony.

The law is as gray as Williams' hair in this matter.

Never mind that in the entire BALCO investigation, no criminal had gotten more than three months of imprisonment, while Fainaru-Wada and Williams were looking at time that could dwarf that.

Never mind that President Bush had congratulated them personally for their honorable service.

Goodwill was gone.

Reasonableness had been discarded for vindictiveness.

The betterment of society had been done in for pettiness.

...Indeed, the two writers were terrified they stood alone, two working reporters against an increasingly repressive government bent on molding the press to its wishes.

In the courtroom, we sportsmen fill many of the pews, our T-shirts now stowed away out of respect for the surroundings.

I have the signatures of perhaps 200 sportswriters and editors who can't be here.

But as the judge and prosecutors drone on in their dry and stilted legalese, it is hard not to wonder if any of this means anything to these automatons.

Increasingly repressive government? Ye Gods, were these guys writing in Venezuala or something? If you think that's bad, check out Mike Lupica's screed a couple days ago, before the sentencing...

Ours is a government that is much better at wars against the press and the First Amendment than it is with a war like the one in Iraq. Ours is a government that now thinks it can convene a grand jury to get anything it wants out of reporters, starting with their confidential sources. But then if you ran a country the way the current administration does, turning this into an America in which the government's version of things is the only one that is supposed to matter, you'd want to shut down investigative reporting and scare off whistleblowers, too.

...Fainaru-Wada and Williams became the heroes of a story that began with an IRS raid on what was then a little-known Bay Area company called BALCO. They did not deal in the kind of half-truths that this administration used to send us into war in Iraq. Fainaru-Wada and Williams told us the truth. That has become a risky business, though, in George Bush's America.

... No, it is just Bush's America, where the people in charge think that if they tell a lie often enough it eventually becomes the truth. And in Bush's America, there is no longer any balancing test of any kind, no determination that if some information is leaked, even out of a grand jury, it might be more valuable than punishing the person who leaked it. It is a disgrace.

The same Republican yahoos, the ones who want us to believe they are so vigilant about individual rights, the ones constantly screaming about states' rights, now let the feds trample California's shield law for reporters - one on the books to protect people like Mark Fainaru-Wada and Lance Williams - because Fainaru-Wada and Williams won't tell them who leaked information out of the BALCO grand jury.

The government says: If you don't tell us who leaked you grand jury testimony - from (alleged) drug cheats like Bonds and Jason Giambi and Gary Sheffield - we will convene another one and use it to send you straight to jail.

Jeez, the points sort of get lost in the proseletyzing (I missed where steroid use was linked to the Iraq war, but I should probably be grateful Lupica didn't link it to Abu Ghraib), but I think I figured out Lupica's points. First, Bush is bad. Second, these reporters are decent, honorable men. Third, who cares that their course broke the law, because a greater truth emerged?

Let me start by noting that I generally like both Telendar and Lupica's columns -- they're pretty good writers and damn good reporters. But in this case, they're so full of themselves (particularly Lupica) that "insufferable" might not be sufficient as an adjective.

Going back to Lupica's three points of emphasis, I'll just address the third (I think I address the first one pretty regularly). Lupica thinks the information leaked is more important than the little law that was broken in leaking that information. So much so that he seems to believe the prosecutors are abusing their discretion in going after the leaker here.

But as a lawyer, I disagree. If someone's leaking grand jury testimony in a case like this, what's to stop them from doing the same in another case? And why should I trust their judgment on what information is important? Sorry, but this argument doesn't wash with me. But better yet, they can make that argument to a jury of their peers if they wish, when they're tried for the crime they committed.

As a lawyer, I'm obligated to keep client confidences, even if I learn that a client may be doing something morally repugnant. In almost every instance, I can't reveal the information, even if it is for the betterment of society. If I choose to do so, then I have to pay a price -- I may better society, but I will likely lose my job, my profession and potentially my freedom. If confronted with such a choice, I need to make a decision. The same is true for the two reporters here -- they can stick their guns and keep their source confidential, but the law can punish them for doing so. It may be admirable, but it's still illegal.

And as for protecting reporters under a shield law (as Wright Thompson at ESPN advocated and Congress is currently debating), I don't want a bunch of demi-gods running around pretending that they're exempt from the rules by virtue of some special status (yes, I know I belong to another class of demi-gods called lawyers, but we'll discuss that another time). Frankly, I don't know how you limit that status to a few -- as noted earlier, there's an increasingly large number of people who consider themselves journalists, and the First Amendment does protect their right to practice it (which differs from the law).

The lesson of this case is not that the government is trying to chill free speech or a free press. There are really two lessons here. First, no one's above the law. Second, if you are a reporter, you can put information in the public sphere and promise never to reveal the source, but that promise is one the law does not have to respect. Nor should it.