The Supreme Court has considered a case involving reportorial privledge exactly once, in the 1972 case Branzburg v. Hayes. In that case, a trio of reporters were subpoenaed to testify about illegal activities they witnessed in the course of their reporting: drug dealing and Black Panthering. In his 5-4 majority opinion, Justice Byron White held that reporters should not have a “testimonial privilege that other citizens do not enjoy.”
In that same decision, White wrote that there should be a “test” before reporters are compelled to testify before a grand jury. Citing Gibson v. Florida Legislative Investigation Comm., White said that the government needs to “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.”
For most of the last three decades, this ruling against the press has been used to support the press: because of White’s establishment of a “test,” reporters have almost never been called before a federal grand jury to reveal their sources. (Most states have shield laws granting reporters the right to protect their confidential sources.)
This, as you might have noticed, is no longer the case. In the past several years, this “overriding and compelling state interest” has time and time again been interpreted as anything the government wants to know about a journalist’s sources or methodology. The latest battleground is the Balco grand jury leak case. Earlier this week, a Federal judge in San Francisco ruled that Mark Fainaru-Wada and Lance Williams, San Francisco Chronicle reporters and the authors of the book Game of Shadows, must reveal the sources that provided them with grand jury testimony regarding Barry Bonds’ steroid use. Oh, and the sources who told them that Jason Giambi had admitted to that same grand jury that he had treated his body as a grand science experiment. (It’s no accident that Giambi shares cover billing with Bonds on Game of Shadows.) In that testimony Giambi acknowledged that, at the very least, he had used either steroids or human growth hormone during three of the four years in which he’d hit more than 35 home runs: 2001, 2002, and 2003. In the year after Giambi’s last acknowledged HGH-fueled year, he hit 12 home runs and batted .208.
I’ve said much every chance I get that I think the fact that Giambi won last year’s Comeback Player of the Year is a sham. And I haven’t met a single person in baseball–club officials around the league, New York beatwriters, etc–who is convinced beyond a doubt that Giambi is now clean: his turn-around is too stark, his history too suspect. I’m sure he’s being tested more than your average bear. But MLB doesn’t currently take blood samples (or store its urine samples) and has no way of testing for HGH…Giambi’s admitted drug of choice just three seasons ago.
Earlier this week, Giambi told a reporter from MLB.com that grand jury leaks are a “serious issue.” “When we were brought in [to the grand jury], we had to talk about our situation that we went through,” he said. “People want to know the same thing now, because these laws are what our country is based on. However they obtained it, it was illegal.” Indeed, Giambi says he’s now concerned about the sanctity of the American legal system (although the sanctity of the profession that’s made him rich doesn’t seem to concern him): “There are now a lot of people who won’t testify in front of a grand jury because of the situation that has gone on. It was a situation that, who knows what would have transpired” had his testimony not been leaked. “I went through what I did and moved forward. I haven’t looked back.” That’s for sure: Giambi is currently on pace to hit 48 home runs, five more than his previous best.
A year and a half after his pathetic non-apology apology, Jason Giambi is lecturing reporters on their need to take responsibility for their actions. (Giambi, for anyone who doesn’t remember, made the Yankees remove the word “steroid” from his 2001, $120 million contract.) Chronicle editor Phil Bronstein has said his paper will not comply with the government’s demand that his reporters give up their sources. And there’s now another brewing showdown that could result in reporters in jail.
I’m pretty much a First Amendment absolutist: I think a robust free press is necessary for the healthy functioning of a democracy. That doesn’t mean I think reporters shouldn’t be held accountable or should have free license to operate outside of the law. In the cases involving the New York Times‘s Judith Miller and Time‘s Matt Cooper there was, at the very least, a compelling argument to be made for both sides.
That is not the case here. There is no “overriding and compelling state interest” outside of the government’s desire to keep grand jury proceedings secret. This is about steroids and baseball, not WMDs and war. Jason Giambi will not have any effect on the ultimate outcome of this case. But the fact that he’s acting as if he’s now concerned the Balco leaks will effect whether or not people feel free to testify in front of grand juries in the future is pathetic.