Is the First Amendment dead?Feds subpoena reporters in steroids case

What the corporate consolidation of media has failed to do in killing free speech, the government has taken up the charge of finishing up.

Over the course of the last five years, the numbers of reporters brought before courts under the demand of revealing their sources has surged. It could be argued -- an argument your blogstress rejects --that in matters in national security, such demands are justified, as was the rationale for dragging reporters before the grand jury in the CIA leak case (for which, if there is a God, Karl Rove will be indicted this week). However, this week, reporters for the San Francisco Chronicle have been subpoenaed to reveal the sources in their reporting on the Barry Bonds baseball steroids case, in which they revealed the actions of a federal grand jury.

While grand jury deliberations are secret-secret, it is not illegal for a juror to speak with reporters after the jury's work has been concluded. And that is what appears to have taken place with the Chronicle's coverage. But that hasn't stopped the U.S. attorney in Los Angeles from dragging Lance Williams and Mark Fainaru-Wada, the Chronicle's sports reporters, before a grand jury of their own. Adam Liptak of The New York Times does a great job breaking down the issues at hand:

As a practical matter, the case will answer whether, after a series of recent setbacks, reporters retain any rights to protect their confidential sources in federal court.

Phil Bronstein, the editor of The Chronicle, said the paper would move to quash the subpoenas.

Whether it succeeds will turn in large part on which of two competing approaches the courts adopt. Both were represented last year in a federal appeals court's decision that sent Judith Miller, then a reporter for The New York Times, to jail in an investigation centering on the disclosure of the identity of Valerie Wilson, an officer of the Central Intelligence Agency.

The three appeals judges who heard that case agreed that a 1972 decision of the United States Supreme Court, Branzburg v. Hayes, ruled out any First Amendment protections for reporters from federal grand jury subpoenas except in cases of prosecutorial harassment.

But one judge, David S. Tatel, proposed an alternative approach rooted in the federal common law of evidence rather than the First Amendment. A similar test is part of a proposed federal shield law likely to be introduced in the Senate shortly.

Judge Tatel said judges should balance "the public interest in compelling disclosure, measured by the harm the leak caused, against the public interest in newsgathering, measured by the leaked information's value."

READ LIPTAK'S NEW YORK TIMES ARTICLE (registration required)

READ THE SAN FRANCISCO CHRONICLE ON THE SUBPOENAS AND THE STEROIDS SCANDAL