President's Corner

Just when you think it's safe to work under the mantle of the First Amendment, there's someone out there lying in wait, ready to trample on your constitutional rights.

Lori Weisberg, San Diego Pro Chapter
Staff writer, San Diego Union-Tribune

It's happened again. Just when you think it's safe to work under the mantle of the First Amendment, there's someone out there lying in wait, ready to trample on your constitutional rights.

This time, it's U.S. Attorney Alberto Gonzales, who recently approved the issuance of subpoenas to two San Francisco Chronicle reporters, who broke open the story of the Bay Area Laboratory Co-Operative — the California nutritional supplement lab that was found to be a steroid ring providing the performance-enhancing drugs to major athletes, including San Francisco Giants slugger Barry Bonds. Their stories relied, in part, on secret testimony by several athletes who had been called before a San Francisco grand jury two years ago as part of the federal government's investigation into BALCO.

The federal government wants Mark Fainaru-Wada and Lance Williams to appear before a grand jury investigating who leaked the secret testimony.

Attorneys for the Chronicle filed a motion last month to quash the subpoenas.

Still fresh in most journalists' memories is the jailing of former New York Times reporter Judith Miller for 85 days for refusing to disclose who in the government had told her that Valerie Plame was a covert CIA operative. In that case, national security was reportedly at stake.

In the case of the Chronicle reporters, there is little at stake for the defendants in the BALCO case because they already pleaded guilty and have been sentenced.

As working journalists, we realize that ideally, we'd like to do our reporting without having to rely on anonymous sources and leaks, but some of the best reporting has depended on just that.

The most obvious example that is frequently cited to bolster the case of reporters' rights is the Watergate story. In fact, Carl Bernstein, the Washington Post reporter who broke that case with colleague Bob Woodward, submitted an affidavit in support of the Chronicle's motion to kill the subpoenas.

Nearly all the articles he and Woodward wrote relating to the Watergate break-in would not have been reported or published without the assistance of confidential sources and the ability to grant them anonymity Bernstein said. Should Fainaru-Wada and Williams be forced to disclose information about their confidential sources, "it would do irreparable harm to investigative reporting across the nation," he stated in his affidavit.

"I just think this represents such a horrible precedent for the government to be pushing this," Fainaru-Wada told me. "There seems to be an interest in pursuing reporters' sources more than ever. The notion that you'd have reporters impelled to testify and possibly face jail time poses a serious threat to the flow of information."

One wonders what's to be gained when courts and government try to place obstacles in the way of journalists trying to uncover the truth. What source will want to talk to us truthfully about sensitive issues if he or she knows that the government is looking over our shoulders in hopes of exposing hidden identities?

In its brief, the Chronicle argues that any damage that may have been done by using leaked grand jury testimony was far outweighed by "the benefits of the articles, which revealed the biggest sports scandal in a generation and led to action by Congress and Major League Baseball."

And that's exactly the sort of revelations that come from dogged reporting that can't always be done entirely with named sources. Consider the recent Pulitzer Prizes to the Washington Post for reporting on the CIA's use of secret prisons overseas and the New York Times' stories exposing a secret domestic wiretapping program. How much more evidence must we have to support the need for a federal shield law to protect journalists from having to reveal confidential sources?

While efforts are afoot in the U.S. Senate to draft legislation designed to project journalists, it remains in doubt whether a shield law will emerge.

Let's hope that our elected leaders will finally see the light and recognize reporters' right — and duty — to ferret out vital information and report it without the intrusion of our courts and government authorities.