U.S. Subpoenas Newspaper for Sources in Steroid Case

The New York Times
U.S. Subpoenas Newspaper for Sources in Steroid Case
By ADAM LIPTAK

In the latest effort by the government to learn the identities of reporters' confidential sources, the United States attorney in Los Angeles issued grand jury subpoenas to The San Francisco Chronicle and two of its reporters on Friday.

The relative ordinariness of the case, which arose out of reporting on steroid use in baseball rather than on covert operatives, domestic eavesdropping or secret prisons, may make its outcome instructive.

As a practical matter, the case will answer whether, after a series of recent setbacks, reporters retain any rights to protect their confidential sources in federal court.

Phil Bronstein, the editor of The Chronicle, said the paper would move to quash the subpoenas.

Whether it succeeds will turn in large part on which of two competing approaches the courts adopt. Both were represented last year in a federal appeals court's decision that sent Judith Miller, then a reporter for The New York Times, to jail in an investigation centering on the disclosure of the identity of Valerie Wilson, an officer of the Central Intelligence Agency.

The three appeals judges who heard that case agreed that a 1972 decision of the United States Supreme Court, Branzburg v. Hayes, ruled out any First Amendment protections for reporters from federal grand jury subpoenas except in cases of prosecutorial harassment.

But one judge, David S. Tatel, proposed an alternative approach rooted in the federal common law of evidence rather than the First Amendment. A similar test is part of a proposed federal shield law likely to be introduced in the Senate shortly.

Judge Tatel said judges should balance "the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information's value."

In the Miller case, Judge Tatel said, the disclosure of Ms. Wilson's identity may have jeopardized her safety, her work and "friends and associates from whom she might have gathered information in the past." On the other hand, he wrote, Ms. Wilson's identity "had marginal news value."

Under that balancing, Judge Tatel wrote, Ms. Miller lost. But that same balancing, if adopted by the judge in the case involving The Chronicle, may yield a different result.

The subpoenas served Friday seek testimony and documents concerning three articles published by the paper in 2004 about a grand jury investigation into the Bay Area Laboratory Cooperative, or Balco, which distributed performance-enhancing drugs to athletes.

The articles quoted, apparently verbatim, transcripts of grand jury testimony from prominent athletes, including the baseball stars Barry Bonds and Jason Giambi. Whoever provided those transcripts to The Chronicle probably violated the law.

Mr. Bronstein, The Chronicle's editor, said the proper way to strike the balance between the value of the information and the harm caused by its disclosure was plain to him, if not to all his paper's readers.

"Had the reporting not been done and not been published," Mr. Bronstein said, "we would not have had a very strong debate about the illegal use of steroids in professional sports."

Readers, on the other hand, "have hammered us quite severely," he continued. There is, he said, "an awful lot of sentiment expressed about the sanctity of the grand jury process."

Thom Mrozek, a spokesman for Debra Wong Yang, the United States attorney in Los Angeles, declined to comment. The investigation is presumably being conducted from Los Angeles because federal prosecutors in San Francisco had had access to the leaked materials.

Eve Burton, vice president and general counsel of the Hearst Corporation, which owns The Chronicle, said the legal balance should be struck in favor of the reporters, Mark Fainaru-Wada and Lance Williams, given that the Balco grand jury appears to have concluded its work.

"The government's interest in learning who the whistle-blowers were in a case that's finished is less important," she said, "than the ability of journalists to protect their confidential sources."