Friday, September 22, 2006

More on "Game of Shadows":
Media vs. Fans Disconnect?

I'd argue the "Game of Shadows" argument is not quite as cut-and-dried (and perhaps not as overwraught) as Wright Thompson lays out on the front of ESPN.com this morning, but it's a great jump-off for a discussion.

As I mentioned in the post below, the filter through which fans are getting this story is slightly distorted: In stories where the media has a stake, expect the story to have a slant.

(For example, where's the column from Roger Cossack or someone else who might be able to explain that while these particular prosecutors might be overreaching, the principle of maintaining the integrity of the grand-jury process has significant societal benefit.)

That's not a bad thing: I certainly want journalists to be advocating ways they can do their job to the best of their ability, not about clamping down.

But I'm not sure if fans are reacting to that or just a different set of values when they respond to polls about this issue . I think the SportsNation poll about the issue is pretty revealing:

It is hardly clear-cut that fans agree with Thompson: 49 percent say the G.O.S. writers should give up their sources.

(Now, the poll itself is slightly biased towards a particular result, using loaded language like "give up.")

And, more interesting, in the question about whether the justice system should be allowed to punish journalists who don't reveal their sources:

53 percent of fans give journalists some sort of prison time and another 18 percent say it should be a financial penalty. That's 71 percent who say some sort of penalty should be delivered.

Only 29 percent say that the justice system shouldn't punish journalists who don't reveal their sources.

To sum up: Half the fans out there think the journalists should have to give up their sources, but even including the half that don't, an overwhelming majority of fans thinks journalists can and should be punished for their decision to withhold the information.

That's the balance that makes this so interesting: Public's right to know versus the public's obvious interest in the sanctity of the rule of law.

Again, I sympathize with the G.O.S. authors and advocate some sort of federal "shield" law for investigative reporting.

But, to me, the most fascinating spin-off of all this is the disconnect between the sports media covering (and advocating) this story and the fans who the media argues it serves.

Comment Question: What do you think of this whole issue? Where do you come down? What do you think of this disconnect? (And there are some great G.O.S.-related comments in the post below, so be sure to check those out, too. But let's get the comment string going off this post.)

-- D.S.

23 comments:

Ma4tt (the 4 is silent) said...

*NOT* identifying their sources is hindering an investigation into criminal activity. When all is said and done, the authors are hurting the government's chances of successfully prosecuting and convicting a criminal. That's a crime as well, and it should land them in jail.

tbmd96 said...

A shield or safe harbor provision relating to journalists would be difficult to enforce and define.

For instance, who is a reporter? Is it any blogger, is it only "mainstream" media, is it print and television, what about local access channels.

Further, what public policy would this safe harbor provision further? The reason they are in jail is not because they are charged with anything criminal. It is because they refuse to give up the identity of someone else who broke the law. So, in effect, the safe harbor would not only protect the journalists, but the original criminal party.

So, if I wanted to violate a court order, why don't I use a reporter as my agent for this action? Assume, hypothetically, that (1) my sister is a widely-read blogger and (2) I'm running for political office.

First, I want to defame my opponent so I tell my sister that my opponent is a heroin-addict. She publishes this information on her blog and its picked up by CNN/MSNBC/FOX. My sister is subpoenaed, invokes the safe harbor, and I'm off scott-free. It would be impossible to get to me for slander. Similar, if sister made up the story, she could claim there are sources that don't exist and it would be impossible to prove she is lying.

Further, there are conceivable situations in which the safe-harbor provision could be used to evade federal law like the McCain-Feingold Campaign Finance Act.

whocares said...

Agreed. You cant get leaked Grand Jury Testimony and then claim you cant reveal your sources. A crime was committed, and if you dont confess, then you go to jail for it.

But I can see their dilemma as investigative journalists. I guess it's just a professional hazard.

DS, would you go to jail for something like this?

jhawkjjm said...

Dan you raise a valid point that the media will slant the story to favor the reporters for obvious reasons. Perspective has a huge impact on a story and I'm not sure that a lot of people realize that.

As for the actual case. The law says that the grand jury testimony is secret and it is that condition that gives the testifiers some sort of uhm..comfort(?) in actually testifying. If their testimony was going to be open to the public, chances are some if not most people would not testify. The ironic thing is that these two journalists are going to jail for not revealing their source of the leaked testimony. They are doing exactly what the sealed testimony is supposed to do. If there is no shield law, people would be less willing to disclose information to a reporter.

The person who leaked the testimony is the guilty party here. The reporters unfortunately (unfarily?) pay the price for keeping the source secret. Which is exactly the type of protection the sealed and secret grand jury testimony is supposed to do for the person testifying. To me its pretty screwed up.

What does it say about us that someone (the source) is willing to let two others go to prison instead of themselves?

Big D said...

Here's my take on it, as a fledgling sports columnist/blogger myself. I don't believe in anonymous sources. There is an inherant responsibility for anyone who is willing to give information on anyone else. Whether you're an older sibling tattling on a younger brother, or a person revealing what is in Grand Jury testimony, you should be held accountable for your decision to sell out the other party. Reporters should not be allowed to hide sources - if a person if so altruistic to believe that they can give up information on a subject, to be a whistleblower, then they should be willing to deal with the consequences of their actions.

Using anonymous sources allows for two major problems. The first is on display in this case - journalists taking the penalty when the "source" is the actual criminal. The second problem with an anonymous source is that it opens the door for unscrupulous journalists to invent news and invent sources, then refuse to reveal their identities.

The journalists never would have gotten the information without accepting it from someone who was willing to break the law. I do not believe there is a law against USING illegally obtained information. What they HAVE done is refuse to reveal who a criminal is, and that is subsequent to accessory after the fact.

Sorry if this was a little jumpy - I'm writing in a complete stream of consciousness while at the same time listening to a debate about this on the local sports radio.

thirdstringjd said...

I believe that at some point journalists must be able to protect their sources - HOWEVER - when those sources are gained through illegal activity there must be a punishment.

The grand jury process must be kept private or else you're opening up a huge problem for the entire legal system - one of the great benefits of this system that we live under is the idea that things like jury deliberations, testimony in front of a grand jury, and information given to your attorney will remain protected.

This case is analogous to someone going through Barry Bonds' mail - gaining information from it and then using that as a source. Sure he got the information but it was through breaking the law.

If they gained this information from Jason Giambi in interviews (not testimony) then I could see them protecting those sources - but this is different.

Also when they wrote this book they knew there was a chance they were going to go to jail - they profited off stolen material - that's a chance you take when you break the law.

FBV

tbmd96 said...

As an FYI to you all, you may want to read up on the only U.S. Supreme Court case involving this an alleged "reporter's privilege"

You can find a short version at http://en.wikipedia.org/wiki/Branzburg_v._Hayes

Essentially, the Supreme Court held that refusing to testify for a Grand Jury because you are a reporter is not a Constitutional privilege.

As a result, any "shield" law would immediately be challenged and likely struck down through the appeal process until the Supreme Court decided to hear the case again. Remember, they only hear 70-80 cases per year.

Qwagmire said...

No issue with the 2 writers protecting sources for investigatvie journalism.

BUT, they took the next step by making money on the info outside of their normal paper job.

They got greedy and now are trying to use the first amendment to hide.

FRY Them!

whocares said...

big d,

Without some anonymity the "leak" would be less likely to come forward with the story. Granted, in this situation it lent to a crime being committed, but overall it would drive investigative journalism into the ground. Then all we would be stuck with is a bunch of puff pieces...

Richard said...

DS,

My journalism experience is for the most part limited to being an editor for a high school paper (although we did cover things like teachers being accused of sleeping with students) so I'm not going to claim to be an expert on journalism ethics. However, we had a policy that an unnamed source was not a source.

I feel that every reporter needs to be able to verify his facts as a matter of libel. If he says "I can't reveal the source", Bonds, and anyone named in the report should be able to simply sue them for libel. They can claim the reporters are making up the entire story.

We do have freedom of the press. However, the press given that freedom on the assumption that they won't abuse that freedom by manufacturing stories. They need to reveal their sources simply so that they can validate their story. If they didn't want to reveal their source, they should have found a source not demanding anonymity.

Al said...

tbmd-

Actually, the court said that there was no protection specifically enumerated in the constitution for protection from grand jury subpoena.

The court essentially punted on the issue; check the Powell dissent, which is most regularly cited, as it was the tie-breaking opinion on the case.

Rather than say that reporters are granted protection under the first amendment or saying that such a protection was unconstitutional, they simply said there was no language in the first amendment that protected reporters.

rafael said...

It goes back to how much Truth the reporter wants to find.

I let all my contempt and vitriol go in my other posts. So, this is all civil here.

People do go to jail for harboring criminals or being an accessory to a crime. That is why these two are in jail.

I don't care about Barry or steroids.
I do care about integrity in reporting. Reporters and journalists can use whatever sources they want to use. However, they should also be willing to pay a price if they use illegally obtained information.

Fine. They've done a 'greater good'. Exposing Bonds as a steroid user is a good thing...and will remain so whether those two are in jail or not. Therefore, put them in jail for helping to break a law...and laud them for saving society and exposing Bonds.

mattie said...

I'm one of those people mentioned in the other thread who "doesn't like" the media and has little to no sympathy for the authors in this case, particularly because -- they broke a law (it's so important to document whether athletes are breaking the law/the rules of their games...but if reporters also break the law, that's just the glorious pursuit of free speech?); they did what they did to sell books and make money; and while this may be one of the biggest stories a sports writer has a chance of uncovering, it really *isn't* a big deal when put in the right perspective (I was no big fan of Congress jumping into the steroid debate either, frankly). So they might do some time while protecting someone who broke the law, and all the while will cloak themselves in the lofty ideals of free speech and journalistic integrity, while cashing the checks they've earned from a book who's research partly depended on breaking the law. I won't be crying them any rivers, and expect to very shortly be rolling my eyes as ESPN makes a bigger deal of this than could possibly be necessary.

Zachary Geballe said...

tbdm: as is mentioned below, your hypothetical is flawed because your reporter is committing libel...they could divulge their source and still be prosecuted (unless of course the story is true, in which case what's the problem).

I don't agree with the sentiment that someone who talks to a reporter has to make their name public. If that's the case, we have no Watergate...and unless you think it's ok for the government to go around breaking the law and getting away with it because there's no one to expose them, then you'll have to admit that at least sometimes anonymous sources are necessary. I agree that they're not ideal, but they have to exist.

qwagmire: are you serious? You want to send them to jail because they wrote a book about the case? So the myriad criminals who capitalize on their "fame" by writing books about it are ok? How about Jose Canseco, who broke both baseball's rules and federal statues and wrote a book about it? There's no law against using your experiences as a source for profit...in fact, that's basically what this country is about.

In all, I find it a bit disturbing that so few people out there view journalists as a worthwhile part of society. While as a whole they may not be the most noble of folks, they still do a lot of public good, much of which could only be accomplished through the use of anonymous sourcing.

tbmd96 said...

al,

Thanks for clarifying. I didn't read the entire opinion (I'd like to get out of here while its still daylight!).

Big D said...

Quote whocares:

"big d,

Without some anonymity the "leak" would be less likely to come forward with the story. Granted, in this situation it lent to a crime being committed, but overall it would drive investigative journalism into the ground. Then all we would be stuck with is a bunch of puff pieces... "

I think my greater point was that the sources should not come forward if they are not willing to face the consequences of their actions. Too often in society people do things without accepting responsibility, especially when it comes to the media. But in a case like this, whoever the source turns out to be should have weighed the pros and cons before stepping forward.

If it was worth it to him or her to provide the details of the Grand Jury Testimony, then he or she should have been willing to do so without the cloud of anonymity surround them. "Richard", the comment below yours, summed it up nicely with the example of libel lawsuits being filed in any case where an unnamed source is cited.

I obviously do not support the anonymous source scheme in journalism. I think it is a farce, and is a cheap ploy to be able to expose someone without facing any repercussions.

File a few lawsuits against the New York Times, Washington Post, Chicago Tribune and Boston Globe and see how fast they change their policies regarding the use of anonymous sources. When it's all said and done, this, like everything else in life, comes down to the bottom line and how much it's going to cost.

By the way - I don't mean to absolve the reporters of any wrongdoing or culpability - like I commented previously, they are essentially guilty of Accessory after the fact to the crime of revealing protected grand jury testimony.

But that is a small crime in comparison to what their source did. Had they not accepted the information without being allowed to reveal the source, the whole mess could have been avoided.

Zachary Geballe said...

Also, getting the grand jury testimony itself isn't illegal, provided they didn't break any laws in obtaining it (trespassing, etc.). If it were given to them, they're allowed to have it and report on it. Where they're getting in to trouble is refusing to reveal who their source was after a subpoena was filed. So let's get this straight: getting and publishing the grand jury testimony = not illegal.

Big D said...

Another thought...

Doesn't California have a law prohibiting people from profiting on their crimes? If the judge has now ruled that the writers have committed a crime here, will they be forced to turn over all profits received from the publishing of the book?

The heroin sheik said...

I am a convicted felon who absolutely hates the legal system, but I still respect it. The system may be flawed (like in my case)but it is better than most other countries. Personally I could care less about bonds and steroids. The guy is an asshole and I leave it at that. However the authors of GOS did break the law. I applaud them for their exposing the use of steroids but cmon the fans all knew what was up. The way I see it is that these guys broke a law that most people really don't understand. They made money off of it so more power to them. The consequence is that the judge is hand tied to give them jail time. Just like the judge was required to send me to prison because I was driving my friends car and he had a xanax in his ashtray I knew nothing about. Sometimes the law sucks but it is still law and you have to pay the price for breaking it regardless of whether you knew you were doing it or not. Plus those guys have made millions so they will rule that jail with all the hoho's they can trade. I honestly think everyone should be required to do a week in jail just so they have sympathy for people in the clink. More than anything it is boring. So maybe they can spend their time writing another book about abuses in prisons with priviledged information supplied on the dl by disgruntled prison guards.

Todd Ching said...

I just don't get it. To me, the only "crime" committed here is the people who leaked the testimony in the first place... well, that and that whole distribution of anabolic steroids thing...

Anonymous sources though have been such an important bedrock in journalism for years and years. If not for anonymous sources, the Watergate scandal wouldn't have gained steam (Deep Throat anyone)?. It's far more important for the truth to be revealed to the public in most cases than it is to not be able to use anonymous sources.

Though not in this case, there are obvious examples where sources wish to remain anonymous since there are safety issues involved.

Freedom of the Press is an extremely, extremely important part of the checks and balances of this country. If there is a precedent set of forcing authors to reveal there sources (as this case and the NY Times case involving the CIA Leak have shown), then we could be facing a much greater crisis in society. If reporters aren't allowed to keep anonymous sources, it could easily result in the public being kept in the dark about extremely important public issues. There ought to be more protections in the law for whistleblowers, not less.

America needs to get its priorities straight, and stop the culture of sending everyone to prison. Somewhere along the lines people have equated that breaking the law should mean going to prison, and there are so many times (this instance, minor drug possession, etc.) where it makes no sense to send people to prison.

Alright, I vote democrat and do work for the Public Defender's office, but still.

-Todd (Boston)

Dan Mega said...

Not identifying the sources when subpoenaed is hindering an investigation for criminal activity, so yes, they broke the law. And yes, they deserve punishment for it (jail time or fines, thats not up to me to decide).

However this clamoring about the media having to reveal sources at all times is taking it too far.

Lets say Shanoff gets a job with the Chicago Sun Times (which would kick total ass by the way) and gets some inside information from a Chicago Bears trainer that Rex Grossman pulled his hamstring, but he doesn't want to be identified out of fear of the McKa$key family.

Should Shanoff reveal the source? No. Can the Bears organization deny it? Sure. Who will Bears fans trust? Well, given the history of how sports teams like to lie about player injuries to keep the seats filled (see- the Chicago Cubs), the media would be a better outlet for the fans to get the information.

Don't take anonymous sources out of the media, however don't expect to be protected if you're deliberately breaking the law to protect someone.

rafael said...

You are right...whether it is a fine or jailtime, up to the judge.

I am alright with unnamed sources or anonymous sources. I only comment on this particular case.

Some information was leaked illegally. That's a crime. The authors know of this, used that info, and are hiding the criminal. That's also a crime.
Whether a journalist uses anonymous sources or not is fine. That's not my issue.

I will express some ignorance on Deep Throat... did he provide illegal information? I know it was inside info..but not the legality.

TF said...

May be a 1st Amendment issue, but then again the government has a compelling interest in this information, as it is a major scandel and investigation conducted by the FBI.

It has long been by our courts that the government can place burdens on speech so long as there is an IMMEDIATE and overriding state interest. (Which is at the judgment of the court)

The Supreme Court has also said:

The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation, as a subpeonaed citizen would be forced to disclose information received in confidence when summoned to testify in court.

I'm on both sides of the fence, if this weren't a profitable book and a newspaper story, I might view it differently.

Joe(Dayton)