By Gene Policinski
First Amendment Center
A promise is a promise.
It's as simple as that for two San Francisco Chronicle reporters who still will not identify a confidential news source, but who no longer face a threat of jail time for non-disclosure because a lawyer has admitted leaking federal grand jury testimony to them.
But it's not that simple for others, who object to the position taken by reporters Lance Williams and Mark Fainaru-Wada. And that's touched off yet another complicated discussion over journalists' sources, motives and ethics.
Since 2003, federal authorities have been investigating whether the Bay Area Laboratory Co-Operative supplied illegal performance-enhancing drugs to top athletes. Well-known baseball players testified before a grand jury. The two reporters used the leaked information about player testimony in articles for their newspaper, and for a book, Game of Shadows, about steroid use in professional baseball.
First, source and motives. A lawyer, Troy Ellerman, pleaded guilty Feb. 15 to two counts of contempt of court and one each of making a false declaration and obstruction of justice. Ellerman admitted in his plea bargain that on several occasions he showed Williams and Fainaru-Wada transcripts of secret grand jury testimony, from which they took notes.
Ellerman later used those leaks as the basis for a motion seeking dismissal of charges against a client, a former BALCO executive, while claiming in court that it was prosecutors who were talking to reporters. Ellerman also said he later gave more information to the Chronicle journalists.
Now, the ethics of it all. Don't ask Williams and Fainaru-Wada to confirm Ellerman's story. They are not naming a confidential source, regardless. A promise is a promise.
There has been a relative flood of subpoenas in recent years for reporters' notes, videos and sources in civil and criminal cases. What complicates this latest collision between the courts and the press beyond others is that Ellerman not only leaked the information but later used it for an illegal purpose, the fraudulently based motion.
Journalists who agree to take information in confidence have to do something absolutely antithetical to reporting the news: Keep a secret. Reasons for offering promises of confidentiality range from the public's need to know to simple expediency: The source won't talk if his or her name will be publicly attached to the information. The motive of the source is secondary.
Critics are concerned that the two Chronicle reporters apparently didn't act when Ellerman, according to the Department of Justice, used the very leak he created in a false claim to the court. Some pause even longer over reports that the reporters returned to get more information from Ellerman even after his court motion. In a Feb. 18 story, the Chronicle reported that one e-mail it received accused the paper of getting the BALCO story through "commission of (a) felony."
Many journalists say a promise of confidentiality ends when the source releases the journalist. Others feel they are freed when a source is found to have lied. The theory of the former works if the release is freely given, not coerced. The latter is based on the idea that the secrecy agreement assumes at least good faith in providing truthful information in return for the promise of anonymity. Failure to deliver "truth" renders the agreement void.
Ellerman is not reported to have directly freed the two reporters from the confidentiality pledge, so apparently the pair still feels bound by the original agreement – a stance taken by some journalists when they feel the source has been "coerced" into revealing his or her involvement. Nor has there been a challenge to the accuracy of what Williams and Fainaru-Wada reported.
So what's left is … their promise. Perhaps, in hindsight, an uncomfortable promise. Certainly awkward. Maybe even frustrating. And frankly not one that some would continue to honor. But what are the alternatives to not honoring it?
Will sources with information the public truly needs to know continue to come forward if their ultimate motives and actions, beyond the information they have, are subject to scrutiny and possible disclosure? Will sources risk jobs, retribution or reputation without the solid assurance that the journalist will keep their identity confidential?
Tips and details of scandals, missteps, failed policies and corruption generally come first from inside sources, not from news releases and press conferences. An often-unspoken truth is that such information often comes from disaffected employees, embittered friends or spouses or colleagues, political opponents or business rivals. Who has the ultimate "motive meter" that should be deployed in such cases?
In the BALCO case, reporters reported to the public on what they deemed newsworthy. Federal authorities investigated and uncovered unlawful actions by an attorney, an officer of the court, who now is headed for jail.
And, simply, isn't that how things are supposed to work?
Gene Policinski is vice president and executive director of the First Amendment Center, 1101 Wilson Blvd., Arlington, VA 22209. Web: firstamendmentcenter.org. E-mail: [email protected].