Earlier this month, two San Francisco Chronicle reporters received federal subpoenas demanding that they identify the sources who provided them with secret grand jury testimony from an investigation into illegal drug use in Major League Baseball. The documents were the basis of articles by reporters Mark Fainaru-Wada and Lance Williams, published in June and December 2004, that described the alleged use of steroids by such players as Barry Bonds and Jason Giambi.
Those articles led to congressional hearings last year and changes in baseball's drug-testing policies. The reporting also produced greater public awareness of steroid use in sports and its damaging impact on young athletes.
The two reporters have recently published Game of Shadows, a book about the investigation that also provides detailed reports on slugger Bonds' alleged use of steroids for a number of years. The subpoenas do not mention the book.
The Chronicle has said its reporters' work is protected by the First Amendment to the Constitution. The paper "stands by its reporters in fighting this effort by the government to force them to reveal their confidential sources," Executive Editor Phil Bronstein said after receiving the subpoenas. "Our reporters broke no laws nor is the government accusing them of doing so. Reporters are not subject to the rules governing grand jury secrecy, which applies only to some of the people in the room during those proceedings."
Still, the grand jury process is a cornerstone of the American judicial system, and those who testify must expect that their testimony will remain secret.
"This is a classic ethical dilemma where two very important issues - judicial process and First Amendment rights - have converged," said Edward Wasserman, Knight professor of journalism ethics at Washington and Lee University.
The Chronicle subpoenas follow the jailing last summer of New York Times reporter Judith Miller for refusing to reveal a confidential source in an investigation of leaked information about the identity of a CIA agent. (Miller was later released when the source - Vice President Dick Cheney's chief of staff, I. Lewis "Scooter" Libby Jr. - authorized her to reveal his name.)
Some have called the Chronicle case part of federal prosecutors' increasingly aggressive policy to force reporters to reveal confidential sources - even in cases where the leaks have no national-security implications. Wasserman said, however, that "prosecutors and judges feel a strong obligation to challenge leaks that they believe can undermine the grand jury system."
Even if national security were an issue, I think the Miller/Libby case was primarily about a reporter protecting her access to power and a high-profile source advancing his agenda. The Chronicle reporters protected sources that produced information that was in the public interest.
Long before the subpoenas were issued, the Chronicle addressed the criticism that the newspaper's decision to use the secret material could undermine the grand jury system. (Grand jury testimony is taken in secret, and it is illegal to disclose transcripts of testimony. It is not illegal to possess transcripts.)
In December 2004, Bronstein wrote a column that explained to readers that the paper believed the public's right to know the extent of illegal drug use in baseball outweighed the possible legal ramifications. He noted that it was a difficult decision.
Sun sports columnist David Steele, a former Chronicle columnist and former colleague of Fainaru-Wada and Williams, offered another perspective in his May 11 piece. He reminded readers that Major League Baseball has continually dragged its feet in investigating itself and that the impetus for change in drug-testing procedures has come from the outside.
"Newspaper reports and books - and, yes, leaked grand-jury testimony - put all this in motion," Steele wrote. "Without those, we'd still be naming highways after Mark McGwire, hanging banners on the warehouse to salute Rafael Palmeiro, even grudgingly nodding at Bonds' climb up the home run charts."
Fainaru-Wada reiterated his belief in the importance of his and Williams' reporting. "Our case represents what reporters should be doing. Doing stories that serve the public in a number of different ways and using vital information from people who are really putting their necks out there to accomplish it," he told Steele.
Whether or not one agrees with the Chronicle's decision to use the grand jury material, it is hard to deny that the independence that keeps journalists from becoming part of the prosecutorial process is under more pressure than ever.
Paul Moore's column appears Sundays.