Journalists in Jail
It's facile to make the point that the journalists go to prison while Barry Bonds, the actual steroid user, gets to play baseball. It's coincidental that the grand jury testimony the reporters leaked involved the Bonds investigation, which remains incomplete. And it's incorrect to say that the reporters were "convicted" and were "sentenced" to eighteen months' imprisonment.
There has been no crime. There has been stubbornness and defiance. The reporters were ordered to reveal the source of the grand jury leak. They said they would refuse the court's order, and told the world they would go to jail to keep their promise to their source. In short, the reporters publically rubbed their defiance in the judge's nose, leaving him little choice but to employ one of the strongest powers of the trial judge: civil contempt. Because the contempt is civil in nature, and not criminal, the reporters will hold the keys to their cell. The very day they decide to answer the prosecutor's questions is the day their jail stay will end. This "sentence" may be no longer than a few days or weeks. If the reporters want to hold out, a relatively new federal statute limits the duration of their stay to eighteen months. They're lucky: until the statute was passed, the time limit was the life of the contemnor.
The problem is the promise the reporters made to their source. Their claim is that they promised confidentiality. That's a great idea, but very few of us can legally maintain confidentiality in the face of a grand jury subpoena. Lawyers can, as can clergy, spouses as to confidential marital communications, and now, recently, psychotherapists. That's about it. Reporters didn't make the list, even though it has long been a fervent wish and lobbying effort of journalists that they be accorded a privilege. "The public has a right to know," they say in pleading with legislatures to give them a privilege to protect the confidentiality of sources. But here is the public, in the form of the grand jury, asking these reporters for their knowledge. The right to know doesn't stop at the reporter's file cabinet.
Don't have sympathy for these guys. They made promises that they knew they could not keep.
There has been no crime. There has been stubbornness and defiance. The reporters were ordered to reveal the source of the grand jury leak. They said they would refuse the court's order, and told the world they would go to jail to keep their promise to their source. In short, the reporters publically rubbed their defiance in the judge's nose, leaving him little choice but to employ one of the strongest powers of the trial judge: civil contempt. Because the contempt is civil in nature, and not criminal, the reporters will hold the keys to their cell. The very day they decide to answer the prosecutor's questions is the day their jail stay will end. This "sentence" may be no longer than a few days or weeks. If the reporters want to hold out, a relatively new federal statute limits the duration of their stay to eighteen months. They're lucky: until the statute was passed, the time limit was the life of the contemnor.
The problem is the promise the reporters made to their source. Their claim is that they promised confidentiality. That's a great idea, but very few of us can legally maintain confidentiality in the face of a grand jury subpoena. Lawyers can, as can clergy, spouses as to confidential marital communications, and now, recently, psychotherapists. That's about it. Reporters didn't make the list, even though it has long been a fervent wish and lobbying effort of journalists that they be accorded a privilege. "The public has a right to know," they say in pleading with legislatures to give them a privilege to protect the confidentiality of sources. But here is the public, in the form of the grand jury, asking these reporters for their knowledge. The right to know doesn't stop at the reporter's file cabinet.
Don't have sympathy for these guys. They made promises that they knew they could not keep.
posted by TSLP at 9/21/2006
Comments on "Journalists in Jail"
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GRG said ... (6:41 PM) :
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grg said ... (6:44 PM) :
post a commentThere are several points.
1. In 1972, the U.S. Supreme Court recognized in Branzburg v. Hayes that “news gathering is not without First Amendment protections.” Thus, reporters are not given 1st rights with a grand jury.
2. However, it is clear that this is a public health issue. Thus the reporters performed a public service by exposing the grime behind the BALCO scandal (which was strangly suppressed when court time came).
3. The new Fed FA's becomes interested not just in possible perjury by BALCO characters, and possible tax evasion, but also illegal 'leaks'. Interesting turn of events.
4. In fact the LA FA becomes downright hostile against the Chronicle reporters in his zeal to get them to rat on their source.
5. The Hurst attorney asserts this should not be about a leak, since the Govt itself gave testimony to defense lawyers.
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Thus:
A. Why the sudden zeal in chasing leaks? Is this a federal priority now from the Bush Admin?
B. Why with the POOR handling of the BALCO investigation and trial, does the Govt focus on reporters? A little out of focus isn't it?
I would say that the Fed Attorneys are wasting resources and money chasing down leaks, considering their poor performance in the BALCO trials. They got 4 months for an admitted international steroid drug dealer, who evaded income taxes and defrauded many. And now want to squeeze a couple reporters who frankly are performing a public service?
This is misplaced federal efforts. THe FA DOES NOT have to force the reporters to reveal the leak (which is another question...has the Govt exhausted all avenues for tracking down the source? I doubt it) It is ridiculous to ask reporters to divulge sources, esp when this is nothing close to national security.
It is horrible judgement, and in fact questionable prosecutorial over-reaching. It smacks of a Bush initiative of stopping ALL LEAKS. These reporters are essentially caught in the cross hairs of a misplaced Govt crusade.
I was not complete on my first point. ALthough reporters have 1st rights, the Supreme Court did not apply the 1st to grand jury cases. Rather than 'thus' I should have written 'However'.
:-)
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