Telander's Note, a Column, and now SF Editor Bronstein Weighs In

The Sixth Amendment trumps the First? Not true. In the Kobe Bryant case here in Colorado, the court mistakenly e-mailed to media organizations testimony damaging to the plaintiff that was supposed to remain among the parties. Couldn't do a thing to prevent the media from publishing it, which we did. Clearly impinged on the plaintiff's right to a fair trial. The court's options in such cases include change of venue if it determines a jury pool has been tainted, but it specifically cannot prevent publication of material damaging to a party's right to a fair trial. In other words, the First Amendment trumped the Sixth. It does come first, after all.

I'm no Constitutional scholar but I would think a minimum of humility would require people to acknowledge there is more than one valid viewpoint on this question. To say the '72 decision disposes of the constitutional question is like saying Roe v. Wade disposed of the abortion issue. It didn't. It's the law of the land for the time being. That is all. At some point, there will be another Supreme Court case that revises Roe v. Wade. With the passage of time and advancement of technology, I would suggest that is inevitable. Some of us would like to help make review of this issue inevitable, too, although, I admit, under the current Supreme Court, our timing is lousy.

 

Until the 7th circuit's Judge Posner decision in 2003, we had 31 years' worth of "legal legs" to stand on. Even in joining the 5-4 Branzburg majority in '72, the justices White and Powell emphasized a democracy's fundamental need for a free press. White's majority opinion said the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest." Powell called the resulting decision a "limited" reporter's privilege, and courts for 31 years honored that limitation. Who's to say the 9th circuit, hearing this case, won't go back to the White/Powell standard?

 

Thanks for the welcome, Mizzou, although I prefer mid-major-timer.

 

Colleagues,

My apologies for interrupting the interesting debate. I wanted to hijack this space for a very brief moment simply to say, on behalf of Lance Williams and myself, how appreciative we are of the overwhelming support many of you have provided throughout our ongoing "situation." It has been so moving and meaningful to receive all of your good vibes, whether in person, via e-mail or just through the ether.

Thursday was obviously a difficult day in many ways, but walking up to the courthouse and having that motley gang of scribes greet us made it us so much easier to endure. We have been additionally warmed by the outpouring of support in the aftermath of the latest ruling. I can't tell you how proud I am to be able to call myself a sportswriter. I said in court that one of the wonders of being a sportswriter is the unique kinship among colleagues, that it's like having an extended family in every major league city. This feels more true than ever right now.

The well-wishes and encouragement will continue to serve as a source of pride and strength.

Again, sorry for the interruption. With that, please return to your previously scheduled interplay.

Thanks and take care,
Mark Fainaru-Wada

 

Daves --
Branzburg's limited shield was, in fact, extremely limited, and I doubt very seriously whether grand-jury testimony would have been found to meet the standard. And, anyway, Posner's decision maintains for the immediate future.
The example that Dave Krieger cites rather far off the mark. A mistaken e-mail, a mistake by the court in the light of day, vs. leaked grand jury testimony? Not remotely analogous, and the current situation sadly demonstrates.
Roe v. Wade did dispose the constitutional issue of abortion.
The political issue is a whole 'nother matter. As is, I fear, the case here.

 

The Constitutional framers were protecting the right for all political persuasions to do whatever hatchet jobs they wanted. That was the press back then. There was no aggressive newsgathering press then. Fine, the Constitution can be implemented to reflect changing times and mores (which is why you don't have to be part of a regulated militia to carry a gun), but don't posit something as an original intention when it clearly was not. And no amendment is absolute, they all have contexts in which they're limited. It certainly is an area where there'll be an ongoing conflict, because it's in the interest of the judicial system for evidence not to be withheld, and to put the hammer down on those who do. And it's in the interest of the press of today to gather stuff that can certainly be interpreted as evidence.

 

FB, sir...I know no hard data, so it's only by deductive reasoning that I'd guess reporters have been protected against revealing the source of grand jury testimony -- it's a guess based on Eve Burton's statistics -- she's the Hearst corp. lawyer dealing with F-W/Wms -- she told me that the Posner decision is being used so often now to compel testimony from reporters that in the year 2005 Hearst reporters nationwide were called to testify 5 times while this year the number is up to 78 -- her theory is that prosecutors, knowing that even the "limited" protection of Branzburg has been stripped away, now make reporters their first targets of investigation instead, as precedent called for since '72, the last...

 

Though I applaud all of you apparent L.A. Law fans, arguing points of law is counter-productive. We could point to whichever legal precedent we so choose, throwing in obscure statements about the Magna Carta's relevance to modern-day issues, but you're never going to convince reasonable people that Mark and Lance deserve to be jailed.

And that's because this case isn't a fine line. It's as much about ethics and intent as it is about interpreting vague legal precedents. There is no clear right and wrong, which is why this thread has become an argument about whether Mark and Lance committed a crime.

To be sure, there are reasons that the government wants information kept under wraps. But there are strong reasons that the public needs that information when reporters can obtain it. Some have said that condoning what Mark and Lance did would create a slippery slope. But that's really just a scare tactic put out there via the same thinking that suggests that legalizing gay marriage will lead to people having threesomes with magnolia trees and skunks in public parks.

Perhaps a federal shield law shouldn't be all-encompassing, but we should remember that the media world does a fair job of policing itself. While there are a few extreme media outlets these days, the bulk of them still have policies against such things as naming rape victims. I would like to think that people aren't arguing against the media's right to report something from a sealed document because they're afraid that a mobster might escape. And I'd also like to think that people aren't casting aside logic and the ethical high road simply because some vague constitutional language is unbendable.

That's all.

Thanks.

 

It's a priviledge to have people like you in our profession...

 

Contempt seems to be such a hazy area of the law.

To my knowledge, these guys haven't been "charged" with criminal contempt and haven't been accused of breaking a law.... Right??

I'm in the camp saying ultimately they're not likely to "win" by appealing and arguing the law... But they might get lots out of it. The longer the process stretches out, the more time goes by for the term of this grand jury, thus shortening the time they have to spend "behind bars."

Sure, there's talk that the prosecutors could choose to impanel another grand jury, call Mark and Lance again, and get another contempt citing (lotta trouble, lotta taxpayer money, and lotta time gone by at that point).... But since contempt is meant to be more coercive than punitive, the judge will have to weigh if it's fair to hold them in contempt again. It gets harder and harder for the judge.

You can't hold someone who hasn't been convicted of a crime in jail forever. Judges know this.

So I hope the guys' lawyers can come up with all sorts of meaty legal arguments, and let's stretch this thing out.

 

Again, just so I'm clear, I'm behind these guys.
However, and it's a big however, if I were a criminal defendant, and the prosecutors in my case were a bunch of sieves, I don't know how reasonable I'd be, either. Grand jury secrecy is not a "vague legal precedent." It's central to all the constitutional provisions guaranteeing the the rights of defendants in criminal trials. Because the defendant is not allowed a lawyer-- and, thus, not allowed to cross-examine the witnesses against him, not allowed to see the physical evidence against him -- secrecy is the only thing in the grand-jury process safeguarding the presumption of innocence prior to the actual trial process. Allow prosecutors to violate that secrecy willy nilly, and the Sixth Amendment, already as fully under siege as the First is, takes another enormous whack.

 

In the 1930s, when Her Majesty's Government turned a blind eye to Hitler's preparations for war, British intelligence officers committed what could have qualified as treason. They leaked classified documents regarding the deplorable state of Britain's readiness to the one man on the island who grasped the extent of the nation's peril, Winston Churchill.

Those men, like these reporters, are heroes. Sometimes, it's important to take a step back from the legal issues and see the larger picture. The Chronicle's Mark Fainaru-Wada and Lance Williams have done a service for the public health of this country by exposing dangerous practices that have trickled down to the high school level. They have affected change far beyond the narrow confines of baseball.

They deserve our gratitude, as well as our respect. If it were up to me, I'd be minting them medals.