Leaking Information: National Security and Sports Security

Bobby Chesney, Heidi Kitrosser, Jalk Balkin, and Marty Lederman all blogged recently about a case brewing in the United States District Court for the Southern District of New York involving a federal subpoena issued to the ACLU seeking confiscation of "any and all copies" of secret government documents leaked to the organization. The ACLU this week moved to quash the subpoena. The crux of its argument is that a subpoena to seize all copies of these documents is the functional equivalent of an injunction against publication of the contents of the documents, which generally is prohibited by the First Amendment and the landmark Pentagon Papers case. This is only the latest of many controversies involving federal-government efforts to punish leaks by pursuing and seeking to punish, in various ways, the recipients (often the media) of leaked information.

What's it got to do with baseball (or any other sport for that matter)?

One recent example of such pursuit involves San Francisco Chronicle reporters Mark Fainaru-Wada (a former journalism-school classmate of mine, although I did not know him) and Lance Williams, authors of the 2006 book Game of Shadows. The book reveals, in detail, Barry Bonds' alleged steroid use, based in part on leaked testimony and evidence from the grand jury investigation into BALCO. The book put teeth into the widespread belief that Bonds used steroids to produce his dramatic late-career evolution into the greatest hitter who ever lived (sorry, Teddy Ballgame); may have committed perjury before the grand jury; and may have evaded federal tax laws by not disclosing certain income. Fainaru-Wada and Williams have been sentenced to federal prison for contempt for refusing to reveal the source of the leaked evidence (although they remain free pending appeal).

What is interesting about the Fainaru-Wada/Williams case is the interplay among the myriad ways that the federal government could pursue leaks to the media and the publication of leaked information on one hand, and the First Amendment on the other. And, once again, a free-speech issue plays itself out in a controversy over our beloved sports. (Full Disclosure: I am supervising an FIU College of Law student writing a law review article on this interplay in the Fainaru-Wada/Williams case).

How can government punish a particular leak and, since law works through deterrence, stop leaks in the future? Consider several options and their constitutionality:

1) Enjoin publication of the leaked information. Not allowed under the First Amendment, unless the information to be published concerns specific troop locations and movements or similar information that could immediately threaten lives. Certainly not satisfied in Bonds' case, where the information concerns Bonds' allegedly unlawful/unethical activities.

2) Punish publication after the fact. As I discussed here, Bonds tried this when Game of Shadows was about to be punished. He sought an injunction that the authors and publisher be made to give up any profits on the book, arguing that, because it was based on leaked information, it constituted an unlawful or unfair business practice. The argument failed (properly) because of a key First Amendment principle that one cannot punish (by criminal, civil, or other liability) the publication of truthful information, lawfully obtained, on a matter of public concern. Since nothing prohibits the receipt of leaked grand jury testimony (as opposed to actually leaking it) and cheating in baseball is a matter of public concern, Fainaru-Wada and Williams were protected from such an injunction.

3) Convene a grand jury to investigate the leak, with an eye towards punishing the leaker; subpoena the reporters to testify and reveal the leaker's identity. If the reporter reveals the leaker, the government can prosecute the leaker--and the reporter can forget about ever getting a confidential source to talk again. If instead, as generally will happen, the reporter refuses to reveal the leaker's identity, jail the reporter for contempt of court for refusing to cooperate with the grand jury.

This is, of course, precisely what happened in this case. But the practical effect is the same: Reporters will be extremely reluctant in the future to receive and publish leaked confidential information, even on matters of as great public concern and import as cheating within The National pastime, for fear of having to reveal their sources. And potential sources will be similarly reluctant to leak, despite the public good to be served. The government gets, in a sense, what it wants: No more leaks or at least no more publication of leaks.

The ACLU case now reveals a fourth way. Suppose, in the Game of Shadows case, the government had learned of the leaks to the Chronicle reporters before the book came out, while they still were writing the book. And suppose the government issued to them a similar subpoena, demanding any and all copies of the testimony and evidence from the grand jury. The practical effect would be to freeze Game of Shadows (and any newspaper stories based on the material) in its tracks--just like an injunction against the book.

We shall see how the ACLU subpoena plays out. But, as always, there is a sports link.

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