Reporters knew the rules but took risks
Last week, a federal judge in San Francisco sentenced two sportswriters, Lance Williams and Mark Fainaru-Wada, to 18 months in jail for not revealing the sources of the information that proved to be the backbone for their book, 'A Game of Shadows.'
It's the outstanding book I raved about in this space a few months back. It detailed the role of the Bay Area Laboratory Cooperative in the Barry Bonds steroid scandal.
At the risk of alienating my brothers and sisters in this business, I think it's time somebody pointed out how this case differs a bit from the average protect-my-source story about a reporter.
Williams and Fainaru-Wada wrote a best-selling book largely built on information that was leaked from federal grand jury testimony. While the grand-jury system is controversial, it also should be understood that the secret nature of testimony before grand juries is designed to protect innocent people.
Let's say, for example, you're under investigation for something you didn't do. It's sometimes up to a grand jury to decide if there's sufficient evidence to charge you. Someone comes in and makes wildly untrue statements about you, and the whole idea is the testimony wouldn't be released publicly where it could do you significant damage.
Same as if you go in and testify against someone - perhaps your boss or a powerful crime figure. At the grand jury level, your testimony and identity would be protected - ironically, just as reporters protect their sources.
At the federal level, prosecutors take this secrecy seriously - as should everyone. And when someone goes around leaking this testimony, it's a felony. Now keep in mind, Williams and Fainaru-Wada didn't leak this testimony, they merely published what was given them.
But they know the identity of the felon who passed them the information and refuse to give it up. Shield laws protect reporters in some states, including this one, but there is no federal shield law.
Even if such a law were in place, I'm not sure it would - or should - protect reporters in this situation.
This is not a case of reporters protecting a source who could get fired or be in physical danger if his or her identity is revealed. This is a source who broke federal law and violated the secrecy of a grand jury, and these are writers who have made a lot of money off the information.
I do not believe reporters should universally be above the law. I know too many I wouldn't trust with a free pass.
I do, however, believe in shield laws and certainly advocate reporters protecting sources. I understand where Williams and Fainaru-Wada are coming from and would expect them to go to jail rather than give up their source.
I've always felt I would do the same thing, rather than reveal a source. But I also would fully understand the rules of the game before I ever publish such information.
When you first publish, then profit, from leaked grand-jury testimony, you better understand prosecutors' motivation for protecting the secrecy of that system. They're going to zealously protect it in most cases.
And they can't necessarily pick and choose which cases. Our system is based on legal precedent. If they don't attempt to chase down the leaker in this case, they've set a dangerous precedent that threatens the grand-jury system.
In short, my advice to Williams, Fainaru-Wada and any other reporters planning to publish information stolen out of grand-jury testimony is that same old saw they're going to hear when and if they land behind bars:
If you can't do the time, don't do the crime.