Cossack: Should reporters be jailed for doing their job?

Updated: June 23, 2006, 4:35 PM ET
By Roger Cossack | ESPN.com

Despite an online court filing disclosed Thursday that identifies one potential source, government prosecutors have not backed off their request for a San Francisco federal judge to force reporters Lance Williams and Mark Fainaru-Wada to reveal their sources for the information that led to a series of articles in the San Francisco Chronicle and a best-selling book, "Game of Shadows", detailing the illegal activities of BALCO and the alleged use of steroids by Barry Bonds.

So far, the two reporters have refused to disclose their sources, and they've indicated they will defy a court order to do so. If they do, they could face jail time that easily could surpass in length the longest sentence (four months) handed down to any of the five defendants in the BALCO case. And simply put, that would be a nonsensical scenario.

According to the Associated Press on Thursday, the government seized e-mails between BALCO founder Victor Conte and Fainaru-Wada that identify Conte as a source for the Chronicle's reporters. Conte, through his lawyer, denied Thursday that he played that role. He and others say the source was someone in the government itself, and Chronicle editor Phil Bronstein would not disclose Thursday whether Conte was involved.

The issue between the government and the reporters is whether Fainaru-Wada and Williams received information from secret grand jury testimony and, if so, who leaked it to them. In most cases, the leaking of grand jury testimony is a crime, and there is no reporter's shield law that would allow them to protect their sources.

This request from the government is part of an ever-increasing aggressiveness by federal prosecutors to force reporters to reveal their sources. Last year, New York Times reporter Judith Miller spent 85 days in jail for refusing to name her source in the Valerie Plame affair.

Although the government prosecutors are legally correct in their concern about grand jury leaks, it seems to me that the subject matter of their investigation ought to call for restraint. Some leaks might affect national security. This leak concerns a steroid investigation. How important was the BALCO probe to the government? So important that prosecutors from the U.S. Attorney's office in San Francisco negotiated plea bargains with the principals that, in the end, amounted to no more than slaps on the wrist.

Congress held hearings on steroids in sports last year because it was concerned about the impact on young athletes who see their heroes using performance-enhancing drugs and might believe they are the only way to stay competitive. The potential side effects of steroids are terrifying. At their very worst, they could leave the longterm user an impotent monster.

The founders of our country thought that freedom of the press was important enough to be the very first amendment to our Constitution. They believed that the keystone of democracy is an informed public and that the press would serve as a watchdog over the government. That principle is as important today as it was more than 200 years ago. In this case, the public is being served by these reporters, who have helped readers realize how harmful steroid usage can be.

The policy that makes grand jury proceedings secret is designed to protect witnesses. But it is perfectly legal to reveal grand jury testimony to the media or anyone else if the revelation comes from the witness who gave it.

It seems to me that before the government tries to force Williams and Fainaru-Wada to reveal their sources, it should ask Conte whether he is the leak. At the least, it should try to avoid the ugly specter of sending reporters to jail for simply doing their jobs.

If this were a boxing match, the announcer would step to the mike and introduce the parties this way: "In this corner, freedom of the press as guaranteed by the First Amendment to the Constitution of the United States … and in this corner, a prosecutor's need to gather evidence to see if perhaps a crime was committed."

As for me, I'll back the First Amendment almost every time.

Roger Cossack is ESPN's legal analyst.