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Why the hardball?

September 21, 2006

A DRUG DEALER SELLS HIS WARES to professional baseball players, whose steroid-distorted performances subvert the game. Major League Baseball knows but does nothing. The feds find out and raid the drug lab. Two reporters look into the raid, discover rampant use of steroids in baseball and write a series of articles and a book that shock the public, launch a congressional probe, prompt the president to decry drug use in sports and finally move baseball to impose a tough steroid-testing policy.

The dealer goes to jail. Might anyone else do time in this web of corruption, deceit and ineptitude? Why, the reporters, of course. The suspected ballplayers got immunity, and baseball executives escaped scrutiny. But the journalists are facing time for their work.

San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams are scheduled to appear before a federal judge today to say why they do not deserve to go to jail for refusing to betray the source who gave them grand jury transcripts about the case. If they don't, the judge could put them behind bars until they change their minds.

Prosecutors say, correctly, that the reporters witnessed a crime when they received the sealed statements made during the grand jury probe of the Bay Area Laboratory Co-Operative steroid scandal. They also argue that such proceedings are sacrosanct and must remain so in order to get witnesses to come forward. But prosecutors have at their disposal the full investigative power of the U.S. government to subpoena witnesses, grant immunity and compel testimony. They should be able to keep their own house in order. If they can't, and someone on their team or elsewhere in the courthouse leaks the testimony, they should be able to plug the leak without compelling reporters to break their promises to their own sources.

There is no room here for objections about how allowing reporters to protect their sources might interfere with the government's ability to keep the nation secure from attack in a time of war. The two Chronicle reporters are not withholding information about a security risk in the White House or the CIA. Nor is this argument about whether reporters deserve some kind of consideration others don't. They are acting on the public's behalf, and any rights they gain -- or lose -- also belong to the public.

Californians recognized the importance of protecting reporters from compelled testimony about their sources by passing a shield law and making it part of the state Constitution. Federal judges have the discretion to let the state law guide them in their rulings on the reporter's privilege. Meanwhile, Congress should pass a federal version of the shield law, even one that falls far short of perfect, such as the bill from Sen. Arlen Specter (R-Pa.) to restore the balance between the government -- with its power to probe and compel -- and two reporters backed by their enterprise and the 1st Amendment.

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