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Nap Time!!!

Thursday, August 17, 2006
We're special

Why should reporters have to follow the law like mere commoners? So asks the Chron.
CONFRONTED WITH overwhelming evidence, baseball toughened its steroids-testing policy. It wouldn't have happened, it's safe to say, had the details and names gathered in a closed-door federal grand jury investigation not appeared in this newspaper.
Well, maybe, but how much better is the world for it? "Haha! Now baseball has a new PR effort to pretend to be clean, and the world is this much better for it." Right.
Two Chronicle reporters, Mark Fainaru-Wada and Lance Williams, have refused to reveal how they received the grand-jury information that helped elevate the steroids scandal into a matter of such public interest that it merited mention in President Bush's January 2004 State of the Union address.

Now, a federal judge has sided with prosecutors who want the two staff writers to cough up the identity of their source. It threatens to hinder newsgathering: Who, after this ruling, may ever trust a promise of confidentiality?
The Chron asks the right question, but in the wrong context. Who, after the way the press treats grand jury testimony, can trust that their testimony in front of the grand jury will remain confidential? But those are the commoners. The plebeians. The "less-than-press" folks. They don't matter.
Neither the White House nor Congress has shown any interest in protections that would bar such press-bashing.
Holding press folks to the same standards as normal people? That's press bashing!

posted by Beetle Aurora Drake 8/17/2006 08:11:00 AM #
Comments (11)
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Well, Beetle, we get to disagree on this one.

I think you're right - that testiomony leaked from grand jury hearings is seriously problematic.

But at the same time, government leaks weren't caused by these members of the press. Neither were other high-profile government leaks (e.g. the Pentagon Papers).

As such, there is no conspiracy, there is no crime by these writers, there's only their refusal to give into hearsay and tell who told who what. The Chron reporters aren't breaking any laws by withholding their sources - refusing to snitch is not a crime, especially to a crime to which you are not a witness.

One of the few remaining things that the mainstream media is willing to do is step up and run hot information that has fallen on their laps.

Is there an integrity issue with printing the information? I think it depends. I read the book by the Chron guys... it's not great, it's not bad, and it's not reliant on their grand jury testimony. But the testimony is important in making their case, and it is substantially weighted against Bonds.

As for your question of "context" - the law requires you to be honest in grand jury hearings, regardless of the risk that that testimony becomes public or the damage that is done to your public image. I really don't see this incident being very damaging of the "stature" of grand jury testimony.
The government leaks absolutely were caused by these press folks. There may be no conspiracy, but no one would be leaking things if there wasn't a press around to pick it up.

The fact that there's no crime by these writers is all the more reason they'd have to testify. They wouldn't be incriminating themselves, so they don't get that constitutional protection that the rest of us get. None of us would be able to refuse to talk to a grand jury despite knowing exactly who committed a crime (and saying it wouldn't incriminate us) without suffering consequences, so why should the press get that ability?

I'm not sure why you say they weren't witnesses. The leaks went to them. They know that the leaks were illegal.

The law, as you point out, requires you to testify honestly at the grand jury. Why shouldn't it require the same of the press? In any case, part of the reason you don't get to worry about damage to your public image is because it's not supposed to be public. There is a serious issue with telling people that what they are saying isn't public, coercing them by law to say it, and then making no effort to enforce that secrecy.
My main concern here, anyway, is the press's insistence that they are a special class of citizen with special rights. If they don't believe in secrecy, let them come out and say so. Instead, they are saying "secrecy, except when we stand to profit."
"The government leaks absolutely were caused by these press folks. There may be no conspiracy, but no one would be leaking things if there wasn't a press around to pick it up."

I think we're differing on the definition of "leak". I see "leak" as being the person first person who takes the information from the source. After that, the information is stolen, but it's also de facto part of the public domain.

If Williams and Wada stole the documents themselves, that would be one thing. But these documents were sent to them.

As an aside, the internet kind of changes your idea of the role of the media in a "leak", but I digress.

The fact that there is no crime committed by the reporters is all the reason that they shouldn't have to testify. Williams and Wada should not be (and I don't believe they are) bound by law to release incriminating information that is technically unrelated to their own individual actions. I understand that the federal government has a serious problem protecting information on multiple levels, but that does not give them the right to crusade against people who were given that information second- or third-hand, because by that point, the damage has been done, and that information was obtained from the public domain. Yes, the government should do a much better job protecting private information - but is this really the best (and most legitimate) way to go about it?

I'm not arguing that the press has any different rights than anyone else - I'm saying that this is a simple right for all, and very needed by the press. Individuals have the right to information once it enters the public domain, and at that point, the government has the right to try to backtrack and see where the leak came from. That doesn't mean, however, that individuals need to cooperate with that goal.
Williams and Wada are headed off to jail because they are bound by law to cooperate. They are bound by their promises not to. They should go to jail, while I laugh at them for making a promise that would send them there.

People have to cooperate with the government over other people's crimes all the time. We don't have the right to decline to testify, beyond the self-incrimination rights granted in the Bill of Rights. Now, maybe we should have that right, but it wouldn't be limited to the press, and that's not the claim that these folks are making.

I don't see Williams and Wada as being "crusaded against." They aren't being prosecuted. The government isn't pursuing them because it wants to punish them for having leaked information. I think you're falling for their framing attempts. The government is asking the people who know who leaked the information about the identity of the person who leaked the information. Who else would it ask?
I'm not sure how bound they are to cooperate by law, I'll admit.

That being said, I think part of the problem is that the Constitution does not define what "freedom of the press" is. I personally have very strong feelings about this iseue. I feel that part of the freedom of the press is the ability to operate in a way that allows you to publish new information and materials without breaking the law. Publishing stolen materials isn't against the law.

As such, I don't see how the government has the right to question anyone who publishes any material of any sort of their sources. They could investigate, find evidence, do any number of things - but compelling people to snitch on one another is just absurd.
Again, publishing the stolen materials is not against the law, and the government doesn't consider it to be. That's not what Wada and Williams are facing. So I don't see "freedom of the press" at risk in the sense that they're being punished for publishing stuff. Essentially, what they did was yell "Hey, look, we got stolen materials from some guys!" so the government is asking the obvious question, and they're being punished for yelling "Hey, we witnessed and profited from a crime, but we're not going to tell you who committed it!"

Why shouldn't the government force people to "snitch"? Is it appropriate for me to commit a crime and be legally protected because, say, all the people who saw it were my pals?
(... they're being punished for yelling "Hey, we witnessed and profited from a crime, but we're not going to tell you who committed it!")

Once agsin, unless Williams and Wada watched these guys take the testimony from the courthouse, then they didn't witness it. Technically, they may not have seen anything. Just because you benefit from a crime does not make you a conspirator.
It does make you a witness. If they didn't see anything, they can say "we didn't see anything," and everyone would be happy. That said, they obviously knew that they were receiving information that had been illegally disclosed, and they clearly know who their source is, or we wouldn't be having this discussion at all.
I just feel like we're making assumptions about the facts that are fundamental to this case.

I will say, however, saying that Williams and Wada are witnesses to the theft of government documents because they received stolen information second or third-hand is like saying I am a witness to a bank robbery if I work in a coffee shop and the robber tips me two days after he robs a bank. That sort of principle simply doesn't play out.

The government should not be forcing people to snitch on each other because it leads to witch hunts. The whole point of our judicial process and system of law is the establishment of fact through the collection of evidence. Why aren't they just asking for phone records, checking meeting logs, etc? Why can't they get subpeonas? It just seems silly.
They have been subpoenaed. That's why they're subject to being held in contempt for refusing to testify.

If you work in a coffee shop and the robber tips you two days after he robs a bank and the government knows the money he tipped you with came from a bank robbery, of course you should be questioned about it, and you'd be obligated to describe whatever you remember about the dude. (In this case, you'd also know that the money you were being tipped with was stolen when you received it, and, with that understanding, promised the dude that you wouldn't talk to the police about it)

They're witnesses. Whether they're witnesses to the theft or not doesn't change the fact that they're witnesses with vital information in the investigation.

This is not a witch hunt. It's obvious a crime occured and it's obvious that Williams and Wada know something that would help find the perpetrator of the crime.
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