explores the dilemma of the evil but truthful source
Years in the making, the perjury trial of one-time baseball great Barry Bonds finally got under way in March 2011, and because the news media played a pivotal, and controversial, role in exposing the illegal doping that was key to both Bonds' success and his undoing, this is an appropriate time to re-examine the rights and wrongs of the media's efforts.
The prevailing story is a triumphalist tale centered on the investigative sleuthing of two sports writers for the San Francisco Chronicle and their unwavering determination-ultimately vindicated-to withstand prosecutorial pressure and protect the sources of their most newsworthy work, despite the threat of imprisonment.1
That story of journalistic guts and glory has the advantage of being based on fact. Indeed, after years of solid reporting on the use of performance-enhancing drugs in professional sports-work that had been denied, deflected or ignored by the sports establishment-in December 2004 reporters Mark Fainaru-Wada and Lance Williams broke a story based on secret grand jury testimony that Fainaru-Wada later described as "a game-changer."2
In his testimony, Barry Bonds, by some measures the most accomplished ball player in the history of the sport, admitted to using two drugs that were at the heart of the years-long federal probe into the Bay Area Laboratory Co-Operative (BALCO), alleged drug-dealer to the stars. (Bonds also insisted he didn't quite know what the drugs were, and it's that claim that got him indicted for perjury.)
The December 2004 Chronicle story recounting Bonds' admission blew the doors off the sports establishment. It led to Congressional hearings, an independent investigation commissioned by Major League Baseball into steroid use, and a sweeping national effort to address the abuse of drugs by athletes at all levels, from high school on.3
It also led to a two-year federal investigation into how the supposedly secret testimony found its way to the Chronicle reporters in the first place. The reporters refused to say. In 2006 they were subpoenaed to testify about their sources, but they held firm with the support of the newspaper's owners, The Hearst Corp., which reportedly spent more than $1 million defending their silence.4
Finally, in February 2007, the FBI found the source without the reporters' help and arrested a Sacramento lawyer named Troy Ellerman. They apparently were acting on a tip from a disgruntled former hireling of his. Ellerman admitted letting Fainaru-Wada review and copy from transcripts of grand jury testimony by Bonds and three other athletes in June and November 2004.5
The government dropped its efforts to get the Chronicle reporters to testify, and the threat of an 18-month sentence for contempt of court vanished. Of course, the newspaper was jubilant, and said as much in a lead editorial, "They Stood Tall for a Free Press."6 The reporters' determination to honor their confidentiality agreement with their source was generally praised, and the months of judicial pressure were cited as further reason to enact a federal shield law to insulate journalists from naming sources to whom they had pledged secrecy.
But beyond the plain illegality of the leak, the details of the Chronicle reporters' dealings with their prized source contained disquieting elements.
Ellerman, it turns out, represented BALCO's founder and another executive-in other words, he defended two clients who were targets of the grand jury investigation. So a natural question arises: Why would a defense attorney break the law to publicize highly incriminating testimony that couldn't help but reflect badly on his own clients? After all, the leak indicated that the grand jury had struck pay dirt and unearthed evidence of serious wrongdoing that was very likely traceable to the BALCO defendants.
The reason? He was trying to sabotage the investigation. As the Chronicle's Bob Egelko reported: "While he was secretly leaking the transcripts, Ellerman acknowledged..., he was publicly complaining to a federal judge about the leaks, and he even filed a motion in October 2004 to dismiss charges, arguing that the disclosures made a fair trial 'practically impossible.'''7
Ellerman initially had leaked transcripts in June 2004, not because he wanted the facts made public, but apparently because he hoped that his leak would constitute legal grounds for scuttling the grand jury investigation.
Better still, Ellerman's October 2004 filing blamed an Internal Revenue Service agent for the leak which was, his filing claimed, part of a prosecutorial "vendetta." That allegation was reported in the Chronicle in a story written by the same two reporters, who knew it was entirely false8-and, indeed, who may have been the only people apart from Ellerman and those he was smearing who knew it was false.8
A few weeks later, Ellerman allowed Fainaru-Wada to see the grand jury transcripts that produced the explosive 3,300-word December 2004 article focused on Barry Bonds, Jason Giambi and Jeremy Giambi, and implicating other major league ballplayers. Hence, Ellerman's purposes must have been transparently clear at the time he provided access to the Bonds testimony for the December story, since the same reporters had quoted him two months earlier making his false claims and demanding, on that basis, that the charges against his client be dropped.
While the refusal of Chronicle reporters to identify their source has generally been acclaimed,9 this darker back story brought serious criticism.
"A defense attorney leaking grand jury testimony is suspicious, but one filing motions to dismiss based on his own leaks is absolutely dangerous," Jack Shafer wrote in Slate.10 In the Los Angeles Times, Tim Rutten wrote: "Conspiring with somebody you know is actively perverting the administration of justice to your mutual advantage is a betrayal of the public interest whose protection is the only basis on which journalistic privilege of any sort has a right to assert itself."11
At its core, this affair raises a question of professional conduct that makes journalists deeply uncomfortable: Are reporters on solid ground ethically when they focus exclusively on doing their job properly-ensuring that their work is accurate, fair, and has the requisite public significance? Or are they morally responsible for unsavory stratagems that they may advance through their journalism, especially when they are fully aware of those stratagems and, as in the BALCO case, are the indispensable instruments of them?
This is the "Dilemma of the evil but truthful source": The journalist is given solid information of clear public importance, and knows it has been given to further a private purpose that is morally problematic. Does the journalist's professional obligation to put that information before the public entitle him or her to ignore that private agenda?
It's fair to say that reporting is hard enough to do right without incorporating an obligation to interrogate sources about their aims. As Mark Feldstein, a veteran broadcast news reporter, author and professor at the University of Maryland, told the Chronicle, "The public is the poorer if reporters get high-and-mighty and say, 'We accept only leaks with pure motives.'"12
And, for that matter, what would constitute the requisite purity of motive? Would the Capitol Hill staffer qualify if she leaked information to discredit her boss's chief rival for a congressional leadership position? That's a bit sleazy, isn't it? And which of numerous motivations are we interested in? Don't all of us act routinely from a number of motives, ranging from self-promotion and settling old scores to saving the world? Which of them needs to be ethically permissible to entitle the reporter to use the information with a clear conscience? And which would argue for declining the highly newsworthy information-and leaving the public in ignorance?
And yet the dilemma remains, I think, perplexing. We don't normally allow the explanation, "I'm just doing my job," to erase responsibility for harm that the routine performance of role responsibilities might cause. Suppose we were talking about the shop owner who sold a knife to a man who declared he intended to kill his landlady. The proprietor says he has a business to run and a payroll to meet, and that his work serves the higher purpose of maintaining a robust market economy, and he can't be bothered by speculation about his customers' motives, and besides, for the most part, you can safely ignore most of what people say anyway.
I think we would find the shop owner's conduct contemptible and conclude-as a matter of ethics if not of law-that if the landlady dies he too has blood on his hands.
I have trouble seeing how that principle doesn't apply equally to journalists, whatever their claim to be answerable, like Uncle Sam in the old Hebrew National hot dogs advertisement, to "a higher authority."
The difficulty of ascertaining motive is real enough but, I think, a bit of a dodge. Sometimes motives are elusive, sometimes they are concealed, often they are manifold. But the BALCO case hinges on motivation not as a topic of abstract psychological inquiry, but as a source's deliberate pursuit of a plausible and highly problematic consequence.
In that respect, it's comparable to the situation of the business reporter who is given damaging information about a company by market-savvy short-sellers, who will literally profit when she publishes the information and causes its share price to swoon. She may regard that as a natural and even desirable consequence. But she cannot publish without accepting her role in their plan.
Troy Ellerman too had a plan, and the success of that plan required the collaboration of the Chronicle reporters. Their assistance was secured by his offer of irresistibly newsworthy information of broad public appeal.
So I don't think the dilemma is trumped by the idea that motives are necessarily unknowable or that discerning motives is unacceptably burdensome. Sometimes that's true. But much of the time, I submit, reporters know quite enough. And they hold their nose and proceed anyway, because they believe it is their duty to do so.
I would suggest that this is morally obtuse. Journalists are not free to act as if the private stratagem they are furthering did not exist. They may do their story anyway, and that may be the right thing to do, but they must accept that by doing so they will be complicit in that stratagem. This suggests that they must be satisfied that the wrongness of their complicity is redeemed by the wider public benefit of the secrets it unlocks.
Did the BALCO story meet that test? That is a tough question. It seems undeniable that the Chronicle stories triggered outrage and reform, and it's hard to fault reporting that had such broadly beneficial consequence.
Indeed, Fainaru-Wada argues that back in 2004 the investigation seemed to be shaping up like a conventional drug case, with lower-level wrongdoers-the drug users-granted leniency and, in this instance, anonymity in exchange for turning in the suppliers and manufacturers. The fear was that here the users were the star athletes, the most newsworthy and most publicly significant malefactors, and if they escaped exposure sports might well go unreformed.13
But it is hard to see how that concern justified actions that might have derailed an apparently determined and meritorious investigation. The grand jury at that point seemed to be doing its job. If it later handed up indictments that amounted to a whitewash and ignored clear evidence of major wrongdoing, the testimony leaked by Ellerman would have been even more newsworthy then, and could have been published without risking harm to the official inquiry.
This "Dilemma of the evil but truthful source" recasts a problem familiar to many reporters: How to reconcile their broader ethical responsibilities with the role duties that journalism demands. The journalist who attempts to justify his or her actions only by ignoring wider obligations-which those actions seem to defy-is likely to be acting unethically both as a journalist and a person.
1 See, the Journal of Mass Media Ethics, which devoted a 17-page section to the affair that does not mention the source problems that this article addresses. JMME, Vol. 26, No.1, January-March 2011, pp. 66-83.
2 Ibid. p. 77. The two reporters earlier that year had already won the George Polk Award, one of journalism's top honors, for their reporting on steroid use among professional athletes.
4 Ibid. p. 78.
5 Bob Egelko, "Lawyer Admits Leaking BALCO Testimony," San Francisco Chronicle, Feb. 15, 2007. http://sfgate.com/cgi-bin/article.cgi?f=/ c/a/2007/02/15/MNGOUO55AJ1.DTL Retrieved March 30, 2011.
6 San Francisco Chronicle, Feb. 15, 2007, http://sfgate.com/cgi-bin/article.cgi?f= /c/a/2007/02/15/EDGRJN777J1.DTL Retrieved March 30, 2011.
7 See note 5.
8 Lance Williams, Mark Fainaru-Wada, "BALCO boss says he's victim of 'personal vendetta,'" San Francisco Chronicle, Oct. 9, 2004, http://sf gate.com/cgi-bin/article.cgi?f=/ c/a/2004/10/09/MNGL096JKB1.DTL. Retrieved March 30, 2011.
9 See comments from Peter Scheer, in article cited in note 5 above. Also comments of Lucy Dalglish and Mark Feldstein in Bob Egelko, "Balco case has journalism in a quandary," San Francisco Chronicle, Feb. 18, 2011, http://sfgate.com/cgi-bin/article.cgi?f=/ c/a/2007/02/18/MNG6SO72DE1.DTL Retrieved March 30, 2011.
10 Shafer, "The Balco Mess," Slate, posted Feb. 20, 2007, http://www.slate.com/ id/2160217/ Accessed April 1, 2011.
11 Rutten, "Protect public interest, not journalist's self-interest," Los Angeles Times, Feb. 17, 2007, http://articles.latimes.com/2007/feb/17/entertainment/et-rutten17. Accessed April 1, 2011. See also: Edward Wasserman, "When good stories come from bad sources," The Miami Herald, March 5, 2007, archived at: http://ewasserman.com/2007/03/05/when-good-stories-come-from-bad-sources/; also Joe Strupp, "'SF Chron' defends source protection amid criticism," Editor & Publisher, posted Feb. 21, 2007, URL unavailable.
12 See note 9 above.
13 See note 1, p. 75.