Reporter's rights

[booklady]

Is it ever right to send a reporter to jail for not revealing his sources? I don't think I've ever seen a pursuasive case for it. Perhaps clearly demonstrated issues involving national security.

I think the following (next post) tells a particularly disturbing story. If the reporters go to jail while the cheater not only gets off free but sets a new record, the judge needs someone to take a baseball bat to his head. I'm not kidding.

What should a reasonable human being do in response to this? Stop spending money on MLB? Write the commissioner? Not care? How is it that the commissioner will not speak to these gentlemen? How is it that the San Francisco Giants baseball club continues to allow this cheat to play? Will they all actually allow him to pass Hank Aaron?

Maybe you don't care about baseball, but you ought to care about our judicial system protecting the rights of reporters to tell the story they have unearthed.

[booklady]

ONLY INTEGRITY IS REVEALED

Author(s): NICK CAFARDO. Boston Globe
Date: September 24, 2006

He has already sat down with his 6-year-old daughter and 9-year-old son and explained that their daddy might be going to jail. This is the part that cuts hardest at San Francisco Chronicle reporter Mark Fainaru-Wada, but he has pledged to endure it to preserve the integrity of his work.

"Yes, the family issue clearly has been the most difficult part of all of this," said Fainaru-Wada, who along with fellow Chronicle reporter Lance Williams faces up to 18 months in jail for refusing to give up the sources that leaked them grand jury testimony in the Barry Bonds/BALCO case, information they used to write some of the most significant stories the sport has ever seen and the best-selling book "Game of Shadows."

"My wife and I did sit down with the kids," said Fainaru-Wada. "It was a very difficult conversation. We just tried to tell them that I made a promise that I felt was really important to keep and that I might have to go to jail because of that. But we also said that not everybody who goes to jail is a bad person."

Many of us who make our living in sports journalism look upon Fainaru-Wada and Williams with great admiration for uncovering what appears to be rampant steroid use in baseball. Because there have been hundreds of deaths associated with steroid use in young athletes, the awareness brought forth by Fainaru-Wada and Williams has likely saved lives.

And their reward? Prison time. Meanwhile, the man accused, Bonds, moves closer to breaking the most sacred record in baseball.

Here's what doesn't make sense. At a White House gathering, President Bush told the two reporters they had performed "a public service." And now that "public service" may land them in prison, pending an appeal of US District Court Judge Jeffrey White's sentencing last Thursday in San Francisco.

The story goes beyond baseball and has as much to do with journalists' rights to protect confidential sources. There's a movement in Congress to write a federal shield law that would protect reporters. Many individual states already have such protection.

"I agree completely with what Mark said in his statement to the judge: No one is above the law. But at the same time, this is exactly the kind of journalism that the First Amendment was designed to protect," said Mark's older brother, Steve Fainaru, an investigative reporter for the Washington Post. "President Bush looked Mark and Lance in the eye and told them they performed a public service. I think it's hypocritical for the government to applaud that work and reward it with prison."

Fainaru, a former baseball writer for the Globe, has received acclaim of his own for his account of Orlando Hernandez's escape from Cuba, and last year he was nominated for a Pulitzer Prize for a series of stories on his 18-month stay in Iraq.

Fainaru read drafts of "Game of Shadows" and offered editing suggestions, even while he was moving cautiously from place to place in Iraq. He knew long before the rest of us that his brother and Williams had hit a grand slam.

"It's clear from their reporting that Bonds's accomplishments are fraudulent," said Fainaru. "The idea that Mark and Lance conceivably could be sitting in jail, watching him hit his 755th, is like a Kafka parody. But it speaks to how weak [Bud] Selig, the Giants, and MLB have been on this issue."

Fainaru-Wada said he and Williams have asked to speak to Commissioner Selig about their work - which triggered an independent steroid investigation by George Mitchell, as directed by Selig - but have always been directed to other Major League Baseball personnel.

"We have no sense that they are appreciative of the work in any way," said Fainaru-Wada.

Fainaru has offered his support and expert advice to his younger brother, and he's amazed at Mark's strength given what's at stake.

"I really don't think I have words that can adequately describe how proud I am of my brother," said Fainaru. "It's not just that he and Lance broke the biggest sports story of our lifetime. It's the way they have conducted themselves with humility, grace, and total integrity.

"It's just an indescribable feeling to have so much admiration for someone as you watch him go through this very public and very difficult ordeal, and for that person to be your brother and best friend."

Fainaru-Wada now waits for the appeal date, with no regrets about what he's written or the manner in which he pursued the story.

And one more thing: He will never give up his sources.

[joew]

There are two separate questions: what should happen to Barry Bonds, and what should happen to the reporters. Doing the right thing in one case should not be contingent on doin the right thing in the other.

Reporters have no right and should have no right, to become accessories after the fact or accomplices to a crime. Disclosure of grand jury proceedings is a crime. To protect the integrity of our system of justice, it is necessary to prosecute the criminals. The courts have a right to compel testimony from witnesses, which the reporters are, when they got the leak. They may even be criminals themselves if they made the initial overtures to get insiders to disclose what they were legally bound to keep secret.

Reporters talk about protecting their sources and keeping their promise of comfidentiality. Protecting criminals from justice! Great! Keeping promises they had no right to make and which no one has a right to expect them to keep! Great!

It's like Charlestown, where people get away with murder because the neighborhood code says don't talk to the police.

Reporters also often bleat about the public's right to know in cases where it is not the public's right to know, but merely the public's curiosity.

Take them away and lock them up, until they decide to do their duty as citizens.

[ptcaffey]

Joe seems to ascribe altogether no "good" to the protection of journalists' sources, whereas I see two noble objectives in conflict: One, grand jury proceedings should, as a rule, be secret in order to protect the innocent from rumors and slander. Two, reporters' sources should be kept confidential in order to ensure that the freedom of the press can be, in very practical terms, exercised freely. Which "good" takes precedence?

Well, which is the greater harm? If a grand jury process is violated, individuals may be harmed, and the government's ability to make its case may suffer. But if the imprisonment of journalists becomes routine, the free press is neutered, and the entire democracy suffers.

"If I had to choose between a government without newspapers, or newspapers without a government, I would choose newspapers without a government." --Thomas Jefferson

I think it sets a terrible precedent to put journalists in jail in order to force them to reveal their sources. The government is incredibly powerful; its agents routinely lie to the people. As citizens, we need all the tools for truth we can find, and a free press, unfettered by the courts, is the best one we have available.

[joew]

I can see a case for exposing corrupt government officials; but even there, the reporters should probably be willing to live with the personal consequences of their actions — civil disobedience of a sort. But exposing drug use in sports? Come on. It's only a game.

The Jefferson quote is a bit of nonsensical hyperbole. Seriously, if you were robbed or a friend murdered, would you rather have strangers read about it in the newspaper or the authorities capture and prosecute the criminals? It is also a false dichotomy. No need to choose.

The press can be free without reporters covering up criminal activity in the name of an extra-Constitutional "confidentiality."

[booklady]

It's only a game?? Are you kidding?

Did you read today's Globe?

[joew]

Glanced at the op-ed, and the Red Sox stories. Haven't got to the rest of it. What should I read that has to do with this topic?

[booklady]

The names from Jason Grimsley's affididavit finally surfaced. The Globe story named Clemens, Pettitte, Tejada, Brian Roberts, Jay Gibbons, and David Segui as the players he named for using performance enhancing drugs.

Nobody's naive anymore about players using. Nobody's above suspicion anymore, either. It IS a game, a wonderful game, but those who are using aren't using to play the game better for itself. Obviously they want to make more money. Selig has done nothing about it but count more money himself. Those two reporters who uncovered the truth and printed it should be hailed as national heroes.

[joew]

It was in yesterday's story, but it is much clearer in today's. The affidavit was not made by Jason Grimsley, but by some IRS agent in support of a search warrant against Grimsley. And Grimsley says he did not give the agent those names. And Clemens and Pettite et al. emphatically deny the allegations. So now if the allegation is false, their reputations are irrevocably tainted, because the most that can be said is, "It can't be proved."

If the whole business had been kept secret as it should have been, the grand jury could have sifted through the allegations and decided which, if any, merited prosecution. There would have been a proper time for anything which had any substance behind it to come out. And if the "source" — who, by the way, is obviously a criminal for leaking the secrets and who never actually let the reporters see the names, just claimed to be reading certain names from the unredacted affidavit — felt that his story had to be told prematurely in public, he could have had the guts and decency to say it himself in public instead of hiding behind a couple of scoundrel reporters who care nothing for the reputations of possibly innocent people as long as they get fame and adulation for being the Woodward and Bernstein of the 21st Century.

And to call them "national heroes" is over the top even if every allegation they put forth is absolutely true. Sports just isn't that important.

[booklady]

What about fraud and theft? Are they "that important?"

[joew]

I'm beginning to get the feeling that you disagree with me on this one, bl. Or is it the other way around.

Neither fraud nor theft is good.

What, exactly does agent Novitzky claim that Jason Grimsley told him Roger Clemens stole?

Is it theft when you take something that has fallen into your hands and use it for a purpose you are not authorized to use it for? Such as a chauffeur using his employer's car for a joyride that the employer does not want him to take. Or a court employee making himself feel special by the unauthorized disclosure of items in his custody: items naming individuals who had both a legal and a moral right to have those things kept confidential.

And how about the friend who encourages the chauffeur to take the car in violation of his terms of employment? Accessory before the fact? Co-conspirator? And if the freind also drives the car, isn't he a thief, too?

Yes, fraud is wrong, and theft is wrong. But this is not Enron. The only people who suffered a monetary loss are the players whose careers were harmed either by the use or by the revelation of their use, and the suppliers, whose future earnings were diminished.

The big fraud here was leading a lot of people to think that Clemens and the others are known to have used performance-enhancing substances, when all there is is hearsay denied by the supposed source of the hearsay. The big theft here is the theft of these players' good names with insufficient basis.

This is beginning to look like another witch hunt. Mob justice is very dangerous.

[booklady]

Oh, gosh. I don't argue well.

Joe, the steroid users are cheaters. They are frauds. They are stealing from their employers and from us who pay their salaries. It is not simply that their performance-enhanced abilities allow them to command higher salaries. They are also more subject to expensive and lengthy injuries, and they get paid while on the DL. It's theft.

They have also stolen from the public trust. They've stolen innocence and believability from the game. They've made every player suspect. Andy Pettitte!!! As fine a man as you can find in MLB, and a great athlete, now looked at by some as a cheat! And it's because people like Barry Bonds and Sammy Sosa and Rafael Palmeiro and Jason Giambi and Jose Canseco did whatever they wanted to while everyone in a position to do something about it, especially Bud Selig and the Players' Association, stood by counting their money.

As for the grand jury doing its job -- well, have we seen any indictments yet? Let's see. Bond's personal trainer goes to jail while Bonds himself continues to live the high life and count his money. If they can't get Bonds on steroid use, they could try to get him on tax evasion, but for some reason he seems to get away with whatever he wants, and it's been that way since he was a little kid. I will stand and cheer if the grand jury does anything, but I'm not holding my breath. Meanwhile, I'm happy that at least two guys had the guts to say what's really going on.

Yes, we will have to disagree, because I agree with Nick Cafardo on this one.

[brutus]

Look; Here's my take. Picture me as Joe Schmoe, reporter for the Schputzel Chronicles. You're Fred Ointmentputz, someone who I want to interview for ( you fill in the blank here) The matter is of sensitive nature, so you don't want your name associated with the deal. The only way I can "scoop" the story by interviewing you it to assure you of absolute privacy. If I spill your name to satisfy the Law, I'm considered untrustworthy, and that reputation will probably cost me many more "scoops" in the future, thus rendering me pretty much worthless in the eyes of the Press. So, it's to MY advantage to keep your name mum. I'm probably not really giving much of a damn about the public's right to know, just using that as a crutch to scream bloody murder when the courts want to jail me for not spilling Fred Ointmentputz's name. Purely selfish, I think.

[brutus]

What I meant was that as an "untrustworthy" member of the Press, I'm no longer marketable material, because nobody is bidding for me to join their news organization. I can't write my own paychecks anymore!! WAAAAAAAA!!!!

[booklady]

That is so cynical.

You need to read Game of Shadows. I think you'd change your mind.

[joew]

How do you feel about the fact that it is your heroes who have led some (many?) to look on Andy Pettite as a cheat under the "guilty until proven innocent" rule which the public applies in these witch hunts?

[joew]

joew said:

How do you feel about the fact that it is your heroes who have led some (many?) to look on Andy Pettite as a cheat under the "guilty until proven innocent" rule which the public applies in these witch hunts?

Give it a rest, joe.

[slb2]

Maybe I can speak with a tiny bit of authority. I just last week sat in on an African American Caucus. You think my white skin wasn't noticable?

So today I was doing my fact-checking. I talked with one guy on the phone who I had quoted quite a bit in my article. He knew who I was, but still, it was on the phone, I was talking as the reporter from the Black newspaper for which I write, and he was candid. He also said that at the Caucus meeting, he felt comfortable to speak his mind, which he did that night.

I'm not going to tell y'all exactly what he said, but he did tell me that if there had been a different audience, he might have been more guarded. Like I said, he knew I was there because I introduced myself and I sat right next to him taking notes and recording parts of the evening.

Now it's possible that he might have said stuff that wouldn't go over well in a mainstream, white press, but for a Black audience both physically and in print, his comments were fine.

On the phone today I assured him (as he had some concerns about my quotes, thinking he had made some blunt remarks) that I knew my audience (in the newspaper) as did he, and I had no agenda, no axe to grind, no expose' I wanted to uncover. All I wanted to do is write an accurate and fair recording of the events at the meeting.

Now (whew! will she get to the point?), if I were to rat on folks, lose my credibility, sure it's a financial liability, but I will also not ever hear the truth when it might be essential.

As a journalist, if I'm not trustworthy, I might as well write for the National Enquirer.

[ptcaffey]

//"Joe: But exposing drug use in sports? Come on. It's only a game."//

Given that this case involves "only a game" only strengthens my conviction that it's wrong for the prosecutor to go after the reporters. If we condon the coercion of journalists in an "unimportant" case like this, it will make it even easier for the government to press its demands in the event of a "national security leak."

//"Brutus: What I meant was that as an "untrustworthy" member of the Press, I'm no longer marketable material, because nobody is bidding for me to join their news organization. I can't write my own paychecks anymore!! WAAAAAAAA!!!!"//

Why should we worry about the reporter's ability to do his or her job? Because we are concerned about his paycheck? No. We should worry because when we lose the news-gatherers we lose the news. How can a democracy make decisions without information?

[ptcaffey]

//"The Jefferson quote is a bit of nonsensical hyperbole. Seriously, if you were robbed or a friend murdered, would you rather have strangers read about it in the newspaper or the authorities capture and prosecute the criminals? It is also a false dichotomy. No need to choose."//

Jefferson is not saying that we can have only government or newspapers, but not both. So it's not truly a false choice. He is saying that government without a free press is tyranny. And a free press without government may be anarchy, but the risk of anarchy is better than tyranny.

The notion doesn't strike me as "nonsensical."

[Jane]

Good lord, man, do you ever sleep?

[ptcaffey]

Sleep? Perchance to dream: ay, there's the rub!

[joew]

I dream of a day when reporters will consider themselves to be subject to the law as much as they consider the President to be subject to it.

[ptcaffey]

Joe, what do you believe the role of a reporter to be? To simply parrot official press releases? Investigative journalism is impossible without anonymous sources.

[Trusty]

It's interesting (and ironic) that the Constitutional Convention, which recognized and guaranteed freedom of the Press, was held in secret. Even B. Franklin, who published a newspaper respected he situation at hand. There MAY have been some delegates who dipped into using some "drugs" of the day, but it was no big deal because they were not illegal. Therefore, they were not expensive.

Respect, Privacy, "Legal" vs. "Lawful", Morality, etc. So many factors that can live together - until you throw money at it.

_________
I was going somewhere with this - but I got lost following the money...

[joew]

Investigative journalism does not necessarily involve crime, either by the source or by the subject of the investigation.

An insider who is not legally bound to secrecy can disclose stuff anonymously without putting the journalist in jeopardy. There is nothing wrong with asking around.

The only problem comes when it is a crime for the source to give the information to the reporter or where the promise of confidentiality makes the reporter a protector of a criminal. If a reporter thinks it is so vital to society that a story get out that he must obtain it in a crime or refuse to give testimony that is necessary to prosecute a criminal, then he should be prepared to go to jail for it, like anybody else engaging in civil disobedience.

[slb2]

I absolutely disagree with this, joe. Prehaps the only problem you see is <<The only problem comes when it is a crime for the source to give the information to the reporter or where the promise of confidentiality makes the reporter a protector of a criminal.>> But in my limited, non-controversial experience (I mostly write as a music journalist), many people are just reluctant to say stuff that will be attributed to them.

You might not know the repercussions, but the individual providing the information to me so that I might publish it in a newspaper has their reasons for confidentiality.

[joew]

Obviously I wasn't clear, slb. I see no problem with confidentiality in a situation like the one you are talking about. The information you are being given isn't something the authorities need to prosecute a crime, and the person giving it to you is not committing a crime in disclosing it. So that's fine, IMO.

[booklady]

joew said:

If a reporter thinks it is so vital to society that a story get out that he must obtain it in a crime or refuse to give testimony that is necessary to prosecute a criminal, then he should be prepared to go to jail for it, like anybody else engaging in civil disobedience.

Joe, as I understand it, Mark Fainaru-Wada and Lance Williams are fully prepared to go to jail for engaging in an act of civil disobedience by failing to identify their source, "with no regrets about what he's written or the manner in which he pursued the story." As Fainaru-Wada was quoted:

"My wife and I did sit down with the kids," said Fainaru-Wada. "It was a very difficult conversation. We just tried to tell them that I made a promise that I felt was really important to keep and that I might have to go to jail because of that. But we also said that not everybody who goes to jail is a bad person."

[joew]

And that is as it should be IMO.