Game of Shadows' Authors to be Jailed: Rethinking the Reporter's Privilege

San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada are set to be jailed unless they agree to testify about who leaked them grand jury testimony regarding Barry Bonds and other players alleged to have used illegal steroids (update: also check out an excellent post by Jeffrey Standen on this topic on his new blog on sports law). Back in March, we discussed their popular book, Game of Shadows, which was heavily based on confidential sources, and how Bonds sued them for libel. But yesterday, U.S. District Judge Jeffrey White rejected the reporters' request for a monetary fine or house arrest, reasoning that prison time would best compel them to testify before the grand jury. Williams and Fainaru-wada won't have to report to jail until their appeal is heard by the U.S. Court of Appeals for the Ninth Circuit.

Judge White's decision is based on Branzburg v. Hayes, 408 U.S. 665 (1972), where Justice Byron White, writing for the Majority, held that "reporters, like other citizens," must "respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial."

In other words, Justice White--a former NFL running back and Rhodes Scholar--reasoned that reporters don't deserve to be treated with less scrutiny than an ordinary citizen. Moreover, White argued, citizens should have an obligation to reveal information that could protect fellow citizens from unfounded prosecutions, and that obligation outweighs any First Amendment privileges, even for reporters. Interestingly, Branzburg was also cited for the jailing of New York Times reporter Judith Miller when she refused to reveal to special prosecutor Patrick Fitzgerald the name of the source who told her about Valerie Plame.

The opposing view to Branzburg is, of course, that our democratic institutions are strengthened by confidential relationships between reporters and their sources. Without those relationships, we may have never learned about Watergate, Iran Contra, or the Lewinsky Scandal, among other instances of government corruption. While that line of reasoning may not seem as powerful in the context of sports corruption, it nevertheless proves relevant.

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