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A Self-Serving Leak

WHAT: San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams were widely praised for their stories about sports figures involved with steroids. They turned their investigation into a very successful book, Game of Shadows. And they won the admiration of fellow journalists because they were willing to go to prison to protect the source who had leaked testimony to them from the grand jury investigating the BALCO sports-and-steroids.

Their source, however, was not quite so noble. Attorney Troy Ellerman was using them. He leaked the information, then tried to get a major case against his clients dismissed on the grounds that grand jury information had been leaked.

Ellerman, former commissioner of the Colorado-based Professional Rodeo Cowboys Association, represented two major figures in the BALCO investigation. He had sworn under oath that he was not the source of the leaks that were reported in the Chronicle beginning in late 2004.

But he kept quiet for two years after a federal judge ordered the two reporters jailed for refusing to identify their source for the leaked information. They never did go to jail, because that condition was part of the plea deal that Ellerman agreed to when he finally admitted that he was the source — that he had allowed the two reporters to see transcripts of the grand-jury testimony of San Francisco Giants slugger Barry Bonds and other high-profile figures in the case.

It was February 2007 when Ellerman finally admitted his role as the leaker, but Williams and Fainaru-Wada still declined to discuss the case.

Question: Should the two reporters have continued to protect this key source even after he admitted to lying? Should they have promised confidentiality in the first place?

WHO: The decision-makers in this case, the moral agents, are Mark Fainaru-Wada and Lance Williams, the two reporters and authors.

The editors who supervised them also have a moral role in this case, and in the decisions that were made. That makes them and their newspaper, the San Francisco Chronicle, major stakeholders.

Of course, Barry Bonds and the other star athletes who were implicated have a high investment in the consequences of this case. Troy Ellerman’s stake is especially high. Others who could be considered stakeholders include Major League Baseball; the U.S. Attorney’s office in San Francisco, which for a time was thought to be the source of the leaks; the rodeo cowboys’ association, which fired Ellerman as commissioner after this came to light, and which already had been facing complaints about the way it was run; Ellerman’s other clients; and Chronicle readers.

WHY: The overriding principle here is a reporter’s obligation to keep a promise — and a promise of confidentiality to a source has the legal effect of a contract, the U.S. Supreme Court has said.

On the other hand, a journalist’s first obligation is to tell the truth, and concealing a source requires concealing part of the truth. Here, as in the Judith Miller case, where the former New York Times reporter was protecting a source who was manipulating her by giving her questionable information, the reporters knew the identity of someone who was breaking the law. They could have identified someone whose identity is a major news story. But they will not. Tim Rutten of the Los Angeles Times had this to say:

“To assert any form of journalistic privilege in a situation like that is something far worse than moral obtuseness. Conspiring with somebody you know is actively perverting the administration of justice to your mutual advantage is a betrayal of the public whose protection is the only basis on which journalistic privilege of any sort has a right to assert itself.”

Others, though, continued to see the two reporters as First Amendment role models. After the federal court dropped its subpoena intended to force the reporters to reveal their source, Peter Scheer, executive director of the California First Amendment Coalition, told the Associated Press it was one of the best possible outcomes for journalism.

“Ultimately, the reporters did not have to go to jail and they did not have to compromise on ethics,” Scheer said, “and that’s a good thing. All the press can promise, and it’s not a lot, is that we’re not going to give you up.”

HOW: Different journalists will have different answers to the question of if it’s ever permissible to break a promise to a source. Most would say it’s never all right. The public may be intensely curious to find out the name of the leaker, but let other reporters go to work on that.

Others, though, would say (in hindsight) that the problem is being too free with unconditional promises of anonymity. In fact, more and more mainstream media outlets are adopting strict rules about confidential sources; more and more are trying to discourage it. And some are saying also that reporters should warn sources that, depending on the situation, there may come a time when it’s necessary to reconsider the promise, or to renegotiate it.

One of those times may be when it becomes apparent that a source has lied, or has cynically attempted to manipulate a reporter. It’s a lesson in why a compact of confidentiality should not be entered into casually. Promising to protect a source should be a last resort, not a way to break the conversational ice.

— by Fred Brown, SPJ Ethics Committee

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