SF Chronicle reporters fight subpoena

[sr_news]

Lawyers for two San Francisco Chronicle reporters argued Friday that the First Amendment protects them from revealing their source for the secret testimony of Barry Bonds and other elite athletes ensnared in the government's steroids probe.
Lance Williams and Mark Fainaru-Wada are fighting a subpoena compelling them to testify before a grand jury investigating the leak. The two reporters published a series of stories and a book based largely on transcripts of testimony by Bonds, Jason Giambi and others who testified in the investigation of the Bay Area Laboratory Co-Operative.

U.S. District Judge Jeffrey White peppered federal prosecutors and Chronicle attorneys during the two-hour hearing. He did not immediately rule on the reporters' motion to quash the subpoena but suggested his hands were tied by U.S. Supreme Court precedent that is not on the side of the journalists.

"How can I, as the district court, rule to the contrary?" White asked Chronicle attorney Jonathan Donnellan. "Tell me how I can do that?"

Donnellan responded that the precedent demanding that reporters reveal their sources involved "serious criminal conduct."


"How can you say that this is not serious?" White replied.

The judge noted the alleged criminal conduct being investigated includes possible perjury and obstruction of justice by government officials, defendants in the BALCO probe and their attorneys -- all of whom have sworn they weren't the source of the leak.

Government attorney Brian Hershman said the government was investigating "a serious breach of trust."
White did not indicate when he would rule on the reporters' motion.

Outside court, the reporters remained steadfast they would not reveal their sources, even if the judge forced them to go before the grand jury. They then could be found in contempt and jailed for months for refusing to testify.

"We're not going to reveal our sources," Fainaru-Wada said.

Donnellan urged White to consider the reporters' First Amendment rights. He also pointed out that a lot of good came from their reporting on the steroids probe: Major League Baseball toughened its steroids-testing policy; sentences for steroid distribution were toughened; and the public awareness of the dangers of steroids was raised.
"The value of the leaked information here is very high," Donnellan said.

He said most states, including California, have shield laws protecting reporters in criminal probes. No such law exists in federal cases, the judge noted.

"Congress hasn't spoken," White said.

Williams and Fainaru-Wada are the latest reporters to become entangled in the federal government's ramped-up efforts to investigate leaks.

On Tuesday, a federal appeals court in New York ruled that federal prosecutors investigating a leak about a terrorism funding probe can see the phone records of two New York Times reporters. The same day, a judge in San Francisco ordered a freelance video journalist jailed for refusing to turn over his unedited footage of an anarchist rally in which a police car was allegedly vandalized.

Then-New York Times reporter Judith Miller spent 85 days in jail last year for refusing to testify in the investigation of who leaked the name of CIA agent Valerie Plame. That case led to perjury and obstruction of justice charges against Vice President Dick Cheney's top aide, Lewis I. "Scooter" Libby.

The Supreme Court ruled in the 1972 decision Branzburg v. Hayes that reporters, like everyone else, must "respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial."

I just had to make this the new hot topic, this really pisses me off ~ Mike