By: Joe Strupp and David Hirschman The San Francisco Chronicle has filed a motion to quash federal subpoenas that would compel two of the paper's reporters to reveal their sources for their heralded series of articles about the use of performance-enhancing substances by Barry Bonds and other professional athletes.
Mark Fainaru-Wada and Lance Williams, who first broke news of Bonds' steroid use in late 2004, had reported on leaked grand jury testimony from a federal investigation into illegal steroid distribution by BALCO, which has already resulted in several convictions. The reporters also recently co-authored a book on the scandal, 'Game of Shadows.'"
The pair could face jailtime if they do not identify the source of the testimony.
The motion to quash also includes several affidavits supporting the reporters' rights from a variety of interested parties, including former Major League Baseball commissioner Fay Vincent and legendary Watergate journalist Carl Bernstein.
Bernstein's affidavit cites the need for anonymous sourcing in investigative reporting, including his own past work that brought down Richard Nixon.
"Throughout our investigation, we relied on confidential sources, among them an individual who became known to the public as 'Deep Throat,' and whose identity remained secret until 2005, more than thirty years after our investigation," Bernstein's statement to the court begins.
On Williams and Fainaru-Wada, Bernstein declares, "in my professional opinion, were an order to compel Mr. Fainaru-Wada and Mr. Williams to disclose information about their confidential sources be issued and were it obeyed, it would do irreparable harm to investigative reporting across the nation."
Vincent, who served as baseball commissioner from 1989 to 1992, praised the reporters for bringing the public attention on the steroid scandal and said such reporting should not be discouraged.
"I believe that the BALCO steroid scandal engulfing MLB is the biggest crisis to hit MLB since the Black Sox Scandal in 1919 and that Mr. Fainaru-Wada and Mr. Williams have done a service by naming names and bringing national attention to the major crisis now facing America's pastime," Vincent wrote. "I also believe that reporting by Mr. Fainaru-Wada and Mr. Williams led MLB to amend its steroid testing policies not once, but twice." He added that, "the journalism here at issue as well as the investigative work it typifies should be encouraged."
The Chronicle's attorneys argue in the motion that legal precedent and Department of Justice policy require the court to balance free speech against law enforcement interests in deciding whether the subpoenas should stand.
The motion asserts that the benefits of the reporters' BALCO investigation, which revealed the biggest sports scandal in a generation and led to action by Congress and Major League Baseball, more than outweigh the damage done by the leaker of the testimony.
"The public importance of these articles must be balanced against the harm of any leak," said Hearst Corporation general counsel Eve Burton in a statement. "That harm is minimal in this case. No serious crime is being investigated by the Government. There are no national security interests. There are no threats of terrorism or violent crimes. The underlying BALCO case is over. The defendants pled guilty, and some went to jail. In these circumstances, the Government?s interests in learning the sources cannot justify burdening the critical First Amendment values at stake in this case."
The subpoenas were prompted by an investigation involving a second grand jury, based in Southern California, which was formed to find out who leaked the original testimony to the reporters.
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