U.S. District Judge Jeffrey White's decision to sentence San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada to 18 months in prison is, predictably, generating a lot of noise from newspaper editorial boards. The San Francisco Chronicle, obviously, is calling for a federal shield law and denouncing White's decision.
The Oregonian calls the decision an act in the "criminalizing of investigative journalism." "…As has become distressingly common in investigations and lawsuits around the country, the journalists are facing jail time for doing their jobs," wrote the Washington Post's editorial board on Friday, also heeding the call for a federal shield law for journalists. Duke University law professor Erwin Chemerinsky argued along the same lines for a federal law in the Orlando Sentinel: "Putting these reporters in jail serves no purpose other than to chill investigative reporting that informs the public about important social and political issues."
Those calls for a federal shield law come as the Senate recently decided to postpone consideration of such a measure following Deputy Attorney General Paul J. McNulty's testimony before the Senate Judiciary Committee, during which he strongly opposed the adoption of such a law. "In imposing a burden of proof on the government, it places a thumb on the scale in favor of the reporter's privilege and tips the balance against executive branch judgments about the nature and scope of damage or potential damage to our nation's security," he said. (You can read his prepared statement here.)
At least one journalist, however, has a different sort of headline about this story: "Reporters doing what they have to -- and so is judge." While he sympathizes with the plight of Fainaru-Wada and Williams,CBSSportsline national columnist Greg Doyel isn't rallying for a shield law or denouncing White's decision:
Orders are orders, and laws are laws. And whether you like it or not, whoever leaked that testimony broke the law. And now, by refusing a judge's orders to identify their source, Fainaru-Wada and Williams are in contempt of court. That, too, is the law.Doyel's opinion might not be the most popular among most journalists, but that doesn't make it any less reasonable.
Is it good, this law? Not in this case, no. Any law that helps send Williams and Fainaru-Wada to jail while the illegal-steroid-using players they wrote about -- specifically, Bonds -- are allowed not only to remain free but to keep playing ... well, that's a bad law.
But it's a law -- a real law, and U.S. District Judge Jeffrey White wasn't placed into his role of authority to decide which laws he's going to follow and which he's going to ignore. If White had the discretion to pick and choose the laws he's going to uphold, so would other judges. Soon the laws of America wouldn't be the laws of America. It would invite legal anarchy. Sounds over the top, I know. But it's true. Just because you don't like that point doesn't make it invalid.
Hey, I hate the point too. Williams and Fainaru-Wada are good guys in this story. They're certainly among the best journalists of our generation and worthy of a Pulitzer Prize, which is my profession's version of the Heisman Trophy or MVP. I am in awe of their reporting on this story, and agree with their decision not to give up their source.
For this story to be reported, though, someone had to break the law. Fainaru-Wada and Williams got their hands on testimony they weren't legally entitled to get, and even if they do spend the next 18 months in jail, I'm guessing they'd do it all over again if given the chance. What they did was real, old-school journalism, and it was fabulous.
What they're doing now, refusing to give up their source, is beyond fabulous. It's gutsier than anything most of us -- including me -- will ever do. Even so, Judge White cannot set a dangerous precedent by going easy on the journalists.
Next time there's a secret grand jury testimony, what if the target isn't a muscular jerk of a baseball player but a mobster? And what if the testimony isn't about something relatively benign like a syringe to the buttocks, but about something evil like murder? And what if, because the testimony was leaked to a newspaper, the witness who testified against the mobster gets killed in retaliation?