With the great races we had so recently having dwindled to a three-to-make-two in the National League, the big story today is the ordering to jail of Mark Fainaru-Wada and Lance Williams, the San Francisco Chronicle writers best known for their reportage on the Bay Area Laboratory Co-Operative (BALCO), its involvement in the distribution of steroids, and the book, Game of Shadows, that was the end product of their investigation into BALCO. The bulk of the Chronicle reportage, which became the impetus for the book, originated with grand-jury testimony illegally leaked to the two reporters.
The Justice Department has determined that to meet its goals of indicting and prosecuting the people they believe to be guilty of perjury and obstruction of justice in the original BALCO case, they need to know who leaked that information to Fainaru-Wada and Williams. The two reporters, citing the principle that a free press requires that reporters be allowed to protect their sources, have refused to testify, which is why they were sentenced yesterday. (The punishment has been suspended pending an appeal.)
The sentencing of Fainaru-Wada and Williams for their silence has brought about a flurry of condemnation from their colleagues in the press. As you would expect, reporters are rallying around the two, citing the principle that reporters can only root out corruption, crime and malfeasance if they have the ability to protect those who would give them information. For some, the freedom of the press not only guarantees the right to publish or broadcast–neither of which has been or will be abridged here–but also the right to use whatever means necessary in gathering information to be published or broadcasted, without repercussion.
Will Carroll expressed his opinion today, falling on the side of those who would consider the rights of reporters paramount. As a reporter, Will has a considerable stake in this case, and I respect his views on the matter.
However, Fainaru-Wada and Williams are asking for exactly what they refused the witnesses to the grand jury. When the men and women were ushered into the room to testify, they did so knowing that the testimony they provided would be sealed, heard and read only by the people in that room. The principle of the sanctity of grand-jury testimony enables the judicial system to prosecute crimes using the exact same tool–the promise of confidentiality–that Fainaru-Wada and Williams used in obtaining the information and publishing it.
Fainaru-Wada and Williams showed no concern for confidentiality when they wrote front-page articles using the testimony, signed contracts to write a book based on it, made the rounds of talk shows promoting it, and, I’d imagine, when they spend the money they made off of it. Principles have only come into play now that they’re the ones being asked questions in a courtroom.
Understand that these two men had a choice. When they were offered the testimony, it was still not public information. They could have written this:
“In a disturbing blow to jurisprudence, we have been given transcripts of the grand-jury testimony from the government’s investigation into BALCO. It is unnerving to know that the government takes its role in the pursuit of justice so lightly as to offer these documents to the press and expecting that they will be used to embarrass, harass and injure the people’s whose words are contained herein, the people who testified with a promise of confidentiality. The promises of government officials, it appears, are to be taken no more seriously in a courtroom than they are on a campaign trail.
“We will not publish any information in these documents. In fact, we have burned them. The practices of a free press are not inconsistent with the practices of a decent society, even if the practices of its government are.”
The crime was committed when the leaker passed the testimony to the reporters. Let’s be clear about that. Neither of these men has committed a crime. Once the testimony was in their hands, they were legally free to use it in any manner they chose. But they were also free not to use it, to put the principle that grand-jury testimony is sealed above the pursuit of headlines, above the instinct to share all available information with the public, above profit. They were free then to make a principle the backbone of their story. No book deal would have come about, but they would also not be looking at jail time.
The freedoms that we have in this country are broad, but they are not absolute. In the same way that your freedom of speech can’t be used to directly endanger others, and your freedom of action ends when it encroaches mine, the freedom of the press stops at the point where it willfully infringes upon other institutions.
Are we there now? I don’t know. I am not sure if it’s right that Fainaru-Wada and Williams may go to jail for their refusal to testify. The practice of jailing recalcitrant witnesses is ham-fisted, serving more to create martyrs than to induce testimony. I am certain, however, that the sympathy the two now receive is disproportionate to the situation. They profited handsomely from their willingess to shred the protections afforded grand jury witnesses, from their willingness to be the vessel by which more than a dozen people were publicly shamed, to be a tool in the government’s leverage game.
The real victims here are the people who had their agreements with the government violated, who had their testimony revealed. Fainaru-Wada and Williams are responsible for that. Perhaps some of the sympathy for those two could be saved for the people who never got the chance to argue the value of principles with the people who chose to dismiss theirs so readily.