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Justice is blind

BALCO reporters face uphill battle to avoid jail term

Posted: Friday September 22, 2006 5:30PM; Updated: Friday September 22, 2006 6:07PM
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On Thursday, a federal judge ordered two San Francisco Chronicle reporters to be jailed for 18 months, pending an appeal, for refusing to testify about who leaked them secret grand-jury testimony from Barry Bonds and other elite athletes. SI.com's legal affairs expert Lester Munson analyzes what comes next and the potential fallout from the decision.

Lance Williams and Mark Fainaru-Wada may find that protecting their sources surrounding the BALCO investigation could cost them 18 months in jail.
Lance Williams and Mark Fainaru-Wada may find that protecting their sources surrounding the BALCO investigation could cost them 18 months in jail.

What's the next step for the two reporters?

The next step is the 9th Circuit Court of Appeals. They will ask three judges to reverse their jail sentences. Their lawyers will argue that their work as reporters and their anonymous sources are protected by the First Amendment and by other legal rulings. It will be a difficult argument to make under the current state of our culture and the current state of American law, which has been moving away from protection of anonymous sources and in a direction of forcing reporters to give up their sources.

How likely is it that they will win their appeal?

Anything can happen and does happen in the 9th Circuit Court of Appeals. Its judges take pride in wild and unpredictable rulings. Mark Fainaru-Wada and Lance Williams have a chance to win it, but it is a slim chance. If they are fortunate to draw the right three judges on this court, they could win. Remember that this is the court that, incredibly, ruled that "under God" did not belong in the pledge of allegiance.

Ultimately, will the two reporters serve jail time?

It is likely that they will serve jail time. Federal prosecutors and federal judges have been unwilling to acknowledge the necessity of anonymous sources. They have been willing to pursue reporters even when they can obtain the information elsewhere. This is not a good time to be trying to protect anonymous sources.

Why is it so important for these reporters to protect their sources by going to jail?

Anonymous sources are critical. In the BALCO investigation, the most significant steroids investigation in the history of sports, anonymous sources are essential. The government, in its investigation, can use subpoenas, surveillance, search warrants, interrogations with must-answer questions, the contempt-of-court power and the threat of jail. They can use all these things to obtain information. We in journalism have only anonymous sources to try to stay even with all this investigative firepower in the hands of the government. If we are going to report accurately on an investigation like BALCO, we must be able to promise anonymity to sources who have knowledge of the investigation. If we are to provide the check and balance on government action that we are supposed to provide under the First Amendment, we must be able to use anonymous sources. Protection of these sources is the foundation of an independent and impartial press.