Lawyer: 'SF Chron' Case Has Good Shot for Supreme Court Review

By: Joe Strupp The contempt of court ruling against San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams has a better chance of getting a U.S. Supreme Court review than last year's Valerie Wilson case, the Chronicle's lead attorney said Friday.

But don't expect the Chronicle's sources to reveal themselves, as some sources have in the Wilson case, says Eve Burton, corporate counsel for Hearst Newspapers, the Chronicle's owner. "That will not happen in this case," she declared, declining to elaborate.

Burton commented a day after a federal judge sentenced Fainaru-Wada and Williams to as many as 18 months in jail for failing to disclose their sources in the BALCO investigation. The pair were held in contempt for declining to give up the identity of their sources, who leaked grand jury testimony in 2004 to the reporters that revealed baseball stars Barry Bonds and Jason Giambi had admitted using steroids.

The jail sentence has been stayed pending an appeal before the Federal Ninth Circuit Court of Appeals, which Burton predicts will not be completed until early 2007. If the case is not overturned by the appeals court, Chronicle officials have said they would seek a review by the Supreme Court.

The high court declined to take the case of reporters Judith Miller and Matt Cooper last year after they were charged with a similar contempt action related to the Wilson case. Miller eventually served more than 80 days in jail before an agreement was reached for her source, I. Lewis Libby, to reveal himself.

Investigators subpoenaed Miller and Cooper as part of an investigation into who leaked the identity of Wilson, a CIA agent, to columnist Robert Novak. Novak revealed her identity in a 2003 column. Although Miller never wrote a story about the matter, and Cooper wrote one only after Novak's column appeared, investigators sought to find their sources for the identity. In recent months, former deputy secretary of state Richard Armitage has come forth as Novak's source.

Burton said her clients would likely have a better shot at a Supreme Court review because their case is typical of the kind in which reporters are deemed to need anonymous sources. "As a generic matter, my view is that we would have much more success in getting to the Supreme Court because it is a very different kind of case than Cooper and Miller," she said. "It involves a lot more reporting on a matter of significant public interest. Cooper and Miler was not an investigative series. Ours is a significant investigative project of 450 stories that changed baseball in America. Remember, Miller did not even write a story."

Burton said the impact of the Chronicle stories, ranging from a congressional hearing on steroids in baseball to renewed interest by Major League Baseball itself, indicates the reporting had more public impact. She said the Miller case "was very inside Washington and involved national security."

"It wasn't as important to the public," she continued. "That whole story was a single story that was not significant or important."

But Burton said her clients are still determined to get a reversal at the court of appeals, claiming that the Ninth Circuit "is the best place for us to get relief." Citing the 1972 Branzberg case, which held that reporters do not have an absolute privilege to protect anonymous sources, but required a balance in applying the ruling before criminalizing reporters, Burton believed that the appeals court would give that balance.

"To balance the rights of the press and the rights of law enforcement," she said. "Branzberg was never meant to be a strict liability test."