When committing journalism becomes a crime

Two reporters for the San Francisco Chronicle who conducted a years-long investigative effort that exposed the steroid scandal festering in the heart of America's favorite pastime are headed for jail. The federal judge who sentenced Mark Fainaru-Wada and Lance Williams to 18 months or more in federal prison is trying to force them to reveal confidential sources who made possible the reporting that brought about significant changes in Major League Baseball.

Specifically, the court wants to identify who leaked grand jury testimony in which baseball stars Barry Bonds and Jason Giambi admitted that they had used steroids. Apart from their questionable contempt-of-court citation, the two reporters broke no law. But they may wind up doing more time than any of the players accused of using illegal substances.

"Never mind that they got an 'attaboy' from the president of the United States for helping baseball right itself," wrote David Carr in The New York Times, "the act of reporting has again been criminalized."

Indeed, reporters in pursuit of the news more and more frequently are winding up in court - and sometimes in prison.

Unless the judge changes his mind, Fainaru-Wada and Williams will follow in the footsteps of Judith Miller, the former New York Times reporter who spent 85 days in federal lockup earlier last year for refusing to give up her sources. A number of other journalists risk a similar journey to jail for their refusals to reveal confidential sources to private and government attorneys seeking to make their jobs easier by fiddling with freedom of the press.

In an increasingly secretive government environment, confidential sources are an indispensable tool for the press. They insure that U.S. citizens are not solely dependent on government-approved press conferences, spin factories and news management for the vital information required for informed discourse and democratic decisions.

Unfortunately, the Senate Judiciary Committee recently put on hold consideration of a proposed federal shield law that would provide some measure of protection for journalists and their sources. And Sen. Kit Bond, R-Mo., has introduced legislation that would impose fines and prison sentences on government employees who leak information to the press.

Protecting confidential sources is only one of a number of ways that journalists are finding themselves in trouble with the law.

As the Times' Carr puts it: "Whether the aggrieved is the government or private industry, shooting the messenger has become a blood sport."

Press advocates are greatly concerned, for example, about a federal judge's decision this summer concerning an unprecedented application of the Espionage Act of 1917. The judge ruled that the First Amendment does not prevent the Justice Department from proceeding with criminal charges under the act for the mere receipt of classified information. Until now, the act has been interpreted to apply only to active espionage rather than free speech and free-press activities. Although the defendants in this case are two lobbyists, similar transactions between government insiders and journalists take place routinely in Washington and serve as the foundation for much of the national-security coverage that helps both elected officials and citizens carry out their responsibilities.

Even the military has joined in jailing journalists. For example, the U.S. Army has imprisoned for the past six months an award-winning photographer working for the Associated Press. Officials say they think the Iraqi photographer has taken photos that he could only have gotten with the cooperation of insurgents. But they have produced no evidence, filed no charges and offered no opportunity for a court appearance.

The cumulative effect of all this is to raise serious questions about how loyal the world's foremost democracy is to the reality as well as the idea of press independence and freedom. The reality of the press is that it insists on unflinchingly performing its democratic role by bringing us news of war casualties and costs, surveillance of citizens, policies of torture and punishment of dissent, not to mention political, economic and athletic scandals.

Most of us find it fairly easy to live with constitutional protection for press freedom as long as journalists confine themselves to the non-controversial or non-threatening. But when the press puts its freedom to the test by bringing us the news we'd rather not hear, it also tests this nation's commitment to democratic principles.

Too often these days there is a disturbingly censorious caveat to that commitment.

Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, VA. 22209. Web: firstamendmentcenter.org. E-mail: pmcmasters@freedomforum.org.