By Mark Conrad*
The question of the existence of a reporter’s privilege protecting their confidential sources has been a recurring one for the federal courts over the last 30 years, despite the seeming rejection of such a right by the Supreme Court in Branzburg v. Hays 408 U.S. 665 (1972). Press advocates have attempted to dissect and limit the scope of Branzburg, in part because the split opinion required the inclusion of Justice Powell’s concurrence to carve out a working majority, a concurrence that called for a case by case determination as to whether a privilege exists, rather than a blank rejection of any such right.
Since Branzburg, 31 states have passed “shield laws” granting a conditional privilege to reporters, but Congress has not done so, forcing reporters either to surrender subpoenaed information or face fines and jail terms. San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams will have to face this choice because they were forced by a federal court to answer subpoenas regarding sources for their reports on the government’s investigation of the Bay Area Laboratory Co-Operative (“BALCO”). The court concluded that the reporters could not rely on a first amendment reporters’ privilege or a federal common law right to resist the subpoenas.
The case, In re Grand Jury Subpoenas to Mark Fainaru-Wada and Lance Williams, 2006 U.S. Dist. LEXIS 59795, (August 15, 2006) arose out of now famous series of articles published in the Chronicle relating to the federal government’s investigation of BALCO, its principals, and two of its distributors, and the parties’ alleged distribution of steroids and performance enhancing drugs to a number of prominent athletes. The articles implicated San Francisco Giants slugger Barry Bonds, among others. After the parties were indicted and charged with, conspiracy to distribute and possess with intent to distribute anabolic steroids, and possession with intent to distribute anabolic steroids and the aiding and abetting thereof, the presiding judge sealed 2,000 pages of grand jury transcripts under sec. 6(e) of the Federal Rules of Criminal Procedure.
On June 23, 2004, the Chronicle published articles, authored by Fainaru-Wada and Williams, reporting on and quoting testimony given to the grand jury during the course of the BALCO investigation. The following December, the two reporters again authored and the newspaper published articles reporting on and quoting grand jury testimony from the BALCO investigation, using confidential sources for much of their information. The trial judge referred the leaks for investigation by the Justice Department [DOJ] and in April 2006, the DOJ issued subpoenas requiring the reporters to appear before the grand jury and to produce documents regarding the source of the grand jury transcripts disclosed in the articles. Instead of doing so, Fainaru-Wada and Williams filed a motion to quash.
What makes the opinion by Judge Jeffrey S. White notable is that he does not take a presumptive First Amendment slant. Instead, he balances the reporters’ interests with those of the functions of a grand jury. Citing Branzburg, he notes: “without question, confidential sources often are essential in assisting the press in that task. However, the “the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.” Branzburg v. Hayes, 408 U.S. 665, 682 (1972). And, he adds that the importance of the secrecy of the grand jury takes precedents over the reporters’ interest.
The opinion then focused on the two main arguments posited, the first being the existence of a first amendment privilege and the second the applicability of a common law privilege in the event a constitutional one does not exist. Judge White dismissed both claims doing so with greater certainty than some judges in other recent privilege cases.
As to the constitutional argument, the court distinguished the cases cited by the reporters as creating such a privilege, since they did not involve grand jury proceedings. In fact, the court noted that Ninth Circuit precedents involved disclosure of confidential information after the completion of a trial. See Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975). Also, Branzburg involved reporters being call in front of a grand jury, a similar situation to the case at hand. Judge White approvingly cited the majority opinion in the In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1145-1149 (D.C. Cir. 2006) for the proposition that the Branzburg rejection of the privilege was definitive. However, this view is hardly universal. Rulings of other courts which opined that Justice Powell’s concurrence opened the door for a privilege in certain grand jury cases.
Noting that the reporters “neither argued nor demonstrated to the satisfaction of this Court that there has been any abuse of the grand jury process,” the materials involved a legitimate need for law enforcement authorities and the request was in good faith, the information must be divulged. ”This information,” the opinion concluded, “s central to the determination of whether the leaker(s) may or may not have committed perjury, may or may not have sought to obstruct justice, may or may not have violated Federal Rule of Criminal Procedure 6(e), and may or may not have violated the provisions of the Protective Order.” Therefore, the First Amendment does not provide Fainaru-Wada and Williams with a basis to refuse to appear before the grand jury to answer questions and produce documents or objects requested in the subpoena.
The opinion was equally unsympathetic with the argument that a common law privilege existed to resist the subpoenas under section 501 of Federal Rule of Evidence. This argument could have more weight because of the majority of states that have passed statutes conferring a privilege and because certain federal judges have concluded that such a privilege exists. In the Judith Miller case, for example, one of the concurring judges advocated such a privilege. However, Judge White noted that no Ninth Circuit cases granted such a privilege in grand jury cases.
Yet, even if a reporter’s privilege exists or should be recognized under the federal common law, the Court concluded that it would be overcome on the facts of this case based on the balancing of interests. Rejecting a presumptive First Amendment standard, the court simply compared the interests of the government and the reporters on an equal footing, and not surprisingly, the reporters lost. “The Court is satisfied that the Government has established that it has exhausted all reasonable alternatives to discover the source of the leak absent the reporters’ testimony and production of documents,” it stated.
Finally, the court ruled that compliance with the subpoenas would not be unreasonable or oppressive and would not jeopardize their relationship with their sources now or in the future. Hearst, the owner of the Chronicle, plans an appeal to the Ninth Circuit.
Leaking grand jury testimony is no doubt a serious transgression and can affect the integrity of the process. And certainly Judge White’s opinion does not qualify as a misreading of the prevailing law, especially in his circuit. However, in his analysis, I think his opinion downplays the importance of the news story that Fainaru-Wada and Williams exposed. The effects on the sports world have been dramatic. Baseball collective bargaining agreement was opened to tighten drug testing. Congressional hearings were held. Political pressure came to tighten drug testing in other sports. Without these reports, none of these events may have occurred.
*Mark Conrad is an associate professor of Legal and Ethical Studies in the School of Business at Fordham University. He recently wrote a book, The Business of Sports – a Primer for Journalists, which is available at http://www.erlbaum.com/ME2/Default.asp
