San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams are facing imprisonment because they refuse to obey a federal subpoena ordering them to reveal who illegally leaked the federal grand jury testimony that found its way into their best-selling expose of steroids in major league baseball, “Game of Shadows.”

The Scoreboard’s position on this is unshakeable: this is not only legally justified, but legally necessary and fair. The astounding thing is that so many argue otherwise with a straight face—and not just a straight face, but a self-righteous straight face. This stands as proof of how effectively journalistic propaganda has unsettled the reasoning processes of non-journalists on the right and the left alike.

Grand jury testimony is usually secret by law, and the secrecy is very important to the judicial process. From the American Bar Association’s website (www.abanet.org):

Rule 6(e) of the Federal Rules of Criminal Procedure provide that the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury, unless ordered to do so in a judicial proceeding. Secrecy was originally designed to protect the grand jurors from improper pressures. The modern justifications are to prevent the escape of people whose indictment may be contemplated, to ensure that the grand jury is free to deliberate without outside pressure, to prevent subornation of perjury or witness tampering prior to a subsequent trial, to encourage people with information about a crime to speak freely, and to protect the innocent accused from disclosure of the fact that he or she was under investigation.

So grand jury secrecy protects witnesses and potential defendants alike, the former from intimidation and influence, the latter from public assumptions of guilt while a case is still in the investigation stages. Leaking grand jury testimony interferes with the administration of justice, and will usually result in serious penalties. Good. It is a crime. Publishing leaked grand jury testimony is also a crime in fact and spirit, but not under the law, because the Bill of Rights generally will not permit the government to punish the press for publishing anything. The press can show the world how to poison the New York water supply or detonate our nuclear weapons using a secret radio signal, and defend itself by saying that “the public has a right to know.” The fact that the press can get away with publishing such things doesn’t make doing so less irresponsible, dangerous and wrong; it only means that it is not a crime.

Fine: even though it is illegal and wrong to leak secret grand jury testimony, and even though it harms the administration of justice when such testimony is leaked, and even though publishing such secret testimony maximizes the harm and encourages future leaks, the reporters who do so must be immune from prosecution. This does not change the fact that it is important, right and just to punish the illegal leakers. Or that it is similarly important, right and just for federal prosecutors to insist that the reporters who received and published the leaks, in this case Fainaru-Wada and Williams, give up their names.

They and their allies in the media shout to the skies that it is important for them to be able to refuse so they can “protect the confidentiality of their sources.” Why should lawbreakers be able to use the press both to amplify their crime and protect themselves from punishment? “For the public good,” claim media advocates. But grand jury secrecy itself is designed to further the public good by protecting the integrity of the justice system. Violating that secrecy is deemed by our system of government to be sufficiently harmful to the public good to incur criminal penalties. No, the reporters who refuse to reveal leaker aren’t interested in “the public good,” because the public good would best be served by showing leakers that they had better be really, really certain that publicizing what they want to leak is vital to the nation, because they will be paying for their unselfish act in orange jumpsuits. The reporters’ interest is their own good, encouraging more scoop and best-seller generating leaks by making sure that the leakers regard the press as a safe haven. Never mind that the justice system suffers.

Thus theirs is a dishonest argument in cases where the leaking of the information was itself a crime. Even so, the Chronicle reporters would be in legal no peril were this not a federal case. California has a strong so-called “shield law” which prevents courts from ordering reporters to reveal their sources, and doesn’t distinguish between legally and illegally revealed information—an ethical mistake in the law, though one you would expect to make sense to a majority of Californians. But it is a federal case, and the California shield law doesn’t apply.

To listen to the critics of the prosecutors, you would think they were re-opening the Spanish Inquisition rather than trying to ensure the proper functioning of the grand jury system. Here’s syndicated conservative columnist Debra J. Saunders on the subject:

As for those of you who see the prosecutors’ heavy-handed play as a well-deserved comeuppance for arrogant journalists, you should understand that the same rules that allow the courts to jail reporters who won’t give up sources can be used against any citizen who will not want to testify against a sibling, a co-worker or a neighbor.

That’s why you want the courts to use discretion and take circumstances into consideration. In this case, prosecutors should note the federal government’s history of not going after journalists unless the national security depends on it, a state law that shields California reporters and the fact that the two reporters stand to serve more time than any defendants.

This is a breathless set of invalid rationalizations. That’s right, Debra: if you witness a crime committed by your neighbor or co-worker, you can be compelled to testify about it in court. That’s because citizens have an ethical and legal obligation to assist legitimate law enforcement, even when the criminals are people they may know or like. That doesn’t bother me one bit, but even if it did, what kind of argument is it to say that applying rules in one case is bad because the same rules could be applied in an objectionable way in a completely different type of case? Answer: A really bad argument. The only valid question is whether the rules are properly applied in the case of Fainaru-Wada and Williams or not. In the second paragraph quoted, Saunders attempts to answer that question with a series of specious points:

• The federal government hasn’t tried to get journalists to reveal grand jury leakers before.
  I don’t know whether that’s strictly true or not, but so what? Grand jury leaking is becoming more common, it’s still a crime, and there are valid policy reasons to crack down. “We’ve always gotten away with this before” is not a justification.
  
  
• Federal prosecutors have a history of not “going after journalists” unless national security depends on it.
  National security is certainly a good reason; so is the preservation of a fair and effective justice system. That seems compelling also. Again, the fact that forbearance was a policy does not prove that it is a good or wise policy.
  
  
• A state law screens California reporters.
  Federal laws pre-empt state laws; if they didn’t, there wouldn’t be any federal laws. The professional sports and steroid investigation was national in scope. The fact that California legislators are willing to have their citizens’ rights abridged by grand jury leaks need not influence federal prosecutors one bit.
  
  
• The two reporters stand to serve more time than any defendants.
  That is only because, of course, contempt of a court order is an ongoing crime. Every day you violate it, the penalty is a day in jail. All the reporters have to do to end their punishment is to stop breaking the law. Saunders’ argument reminds me of the old joke about the guy arrested for making an obscene phone call, and when he is told that he is allowed to call someone he makes another obscene phone call. If the obscene caller did this every day for 20 years, I suppose Saunders would say that it is unjust that he should have to serve more time in jail than a safe-cracker. But all he has to do is to stop making the calls, just as all the reporters would have to do is obey the court order.

Over on the liberal side, the arguments against “the federal strong-arm tactics” are, if anything, even less persuasive. Typical are the objections of blogger Stephen Kaus on The Huffington Post (www.huffingtonpost.com):

• The reporters’ published accounts of the secret testimony are “responsible for the improvement in drug policies in baseball and other sports.” This is simply the invalid ethical rationalization known as “consequentialism”: an act should be judged according to its results. It doesn’t take a lot of imagination to recognize the argument as a pure “ends justify the means” slippery slope, and in Kaus’ case, a disingenuous one as well. It is a fair assumption that he wouldn’t support prosecuting the reporters as long as their stories were run on the back page and their book had no impact at all. His embrace of “consequentialism” is a fraud.
  
  
• The crime of leaking the grand jury testimony is really trivial, as the published transcripts came “from a closed investigation that all of those involved in the case already have.” Kaus apparently is confused. The protection of secrecy in grand jury proceedings is not designed to keep information away from those involved in them, but to protect interested parties outside the investigation (such as Fainaru-Wada and Williams) from using that information to interfere with the process, or violate the rights of the targets of the investigation. Furthermore, it is universally accepted that leaking grand jury testimony is not a trivial crime. Sometimes it does more damage, sometimes less, but not aggressively prosecuting the leakers only encourages future illegal leaks.
  
  
• “The only known complaint about the articles is from Barry Bonds.” Is Kaus’ really arguing that breaking the law only matters if someone complains about them? Interesting concept: presumably this means that as long as an individual is universally unpopular, he can be murdered without penalty. Or does Kaus mean that since we all know Barry Bonds used steroids, a violation of his rights is no big deal? Whichever of these strange points he is asserting, Kaus is factually wrong: several individuals, such as New York Yankees Gary Sheffield and Jason Giambi, have objections to the leaked testimony, and legitimate ones.

The strongest argument against prosecuting Fainaru-Wada and Williams is the journalism school classic: the effectiveness of the press will substantially diminish if every reporter is turned into a “surveillance camera.” Reporters insist that a 1972 federal case called Branzburg v. Hayes suggests that there is at least a qualified common law reporters’ principle requiring a court to balance potential damage to freedom of the press against the importance of prosecutions that require evidence from a reporter. Without a sense of proportion that requires reporter testimony only in vital situations, the press could not function; every crime related story could make a reporter a witness, and sources would dry up, crippling the flow of information to the public.

But this position makes no distinction between secret sources who provide information about a crime and sources who commit a crime themselves by communicating to a reporter. There is a crucial and obvious difference: in the second scenario, a reporter who publishes the information is aiding and abetting a criminal act by facilitating an intentional violation of a law put on the books to protect citizens and assist in law enforcement. Simply put, that takes the freedom of the press one step too far. The claim that a profession should be above the law must be bolstered by some convincing evidence that those in that profession possess unusual wisdom, good judgement, and immunity from the influences of fame, power and fortune. Needless to say, such evidence is lacking for journalists.

Boy, is it ever lacking.

The reporters should be grateful that the Constitution prevents their prosecution for the crime itself, and put good citizenship over professional convenience by helping the government discourage grand jury leaks. Nobody wants to see Barry Bonds and other sports cheaters get their just desserts more passionately than the Ethics Scoreboard, but that result should come about in an orderly and fair way. Bonds has rights and the leaker violated them. The “right” of reporters to assist illegal leakers pales in comparison.

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Addendum: Below is California’s shield law:

California Evidence Code, § 1070 Refusal to disclose news source

(a) A publisher, editor, reporter or other person connected with or employed upon a newspaper, magazine, or other periodical publication or by a press association or wire service, or any person who has been so connected or so employed, cannot be adjudged in contempt by a judicial, legislative, administrative body or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in § 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or any other periodical publication or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

(b) Nor can a radio or television news reporter or other person connected whether employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

(c) As used in this section, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication whether or not published information based upon or related to such material has been disseminated.