Reporters must reveal sources for steroid allegations or risk jail

by Christian Red and Teri Thompson, New York Daily News

The authors of "Game of Shadows" moved one step closer to a jail cell Tuesday. A federal judge ruled that the two San Francisco Chronicle reporters who wrote the bombshell book detailing steroid use by Barry Bonds and other prominent athletes must reveal the sources of grand jury testimony or face a prison sentence.

Mark Fainaru-Wada and Lance Williams, could be held in contempt of court and jailed if they refuse to testify before a grand jury investigating the leaking of testimony before a separate grand jury that was investigating the Bay Area Laboratory Co-Operative (BALCO).

The reporters also chronicled the BALCO investigation in the pages of their newspaper. In San Francisco, U.S. District Judge Jeffrey White said in his ruling that neither the constitutional right of freedom of the press nor federal law shields journalists from testifying to a federal grand jury about confidential sources.

"The court finds itself bound by the law to subordinate (the reporters') interests to the interests of the grand jury" in discovering the source of the leaks, White wrote. "The grand jury is inquiring into matters that involve a legitimate need of law enforcement."

After a hearing before White on Aug. 4 in which lawyers for the Hearst Corp., which owns the Chronicle and is defending the reporters, appealed to the judge to apply a balancing test weighing the importance of the information in the fight against steroid use with the harm done by the leaks, both reporters said they would keep their promise of confidentiality, even if it meant imprisonment.

Eve Burton, general counsel for the Hearst Corp., noted Tuesday that the court acknowledged the important First Amendment interests at stake in the case, and vowed to appeal.

"We are deeply disappointed with the Court's decision," she said, "but Judge White clearly felt constrained by the Court of Appeals' decisions and that is where we are headed next. We believe we will ultimately prevail and that is clearly what is in the public's best interest."

The Hearst lawyers had hoped that a shield law - the Free Flow of Information Act - sponsored by Sen. Arlen Specter (R-Pa.) would make it through Congress in time to help protect the reporters. But that bill is not scheduled to be reviewed until Sept. 14 in a House subcommittee hearing. Phil Bronstein, editor of The Chronicle, said the newspaper "will not comply with the government's effort, which we believe is not in the best interests of an informed public."

He said the ruling "does not change our complete commitment to Mark and Lance. We support them fully in maintaining the confidentiality of their sources."

The reporters wrote articles in 2004 quoting closed-door testimony by Bonds, Jason Giambi, sprinter Tim Montgomery and other athletes saying they had been supplied drugs by BALCO. The investigation netted five convictions, including that of BALCO founder Victor Conte, who pleaded guilty to supplying performance-enhancing drugs.

Separate grand juries are now investigating the disclosure of testimony to the reporters and the possibility that Bonds committed perjury when he denied knowingly using steroids. The criminal conduct being investigated in the Bonds leak case includes possible perjury and obstruction of justice by government officials, defendants in the BALCO probe and their attorneys.

All of them have sworn they had access to the documents but weren't the source of any leaks.

The government told White that its investigation has turned up empty, and that Williams and Fainaru-Wada are the last hope of finding the culprit or culprits. If the reporters are sent to jail, they could stay there as long as they refuse to testify or until the term of the grand jury expires.

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The media's job is to interest the public in the public interest. -John Dewey