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When talking about a looming First Amendment showdown, The Hearst Corp.’s general counsel, Eve Burton, projects the bravado of a BALCO-enhanced Barry Bonds striding to the plate. She touts her in-house staff as “the best First Amendment team in the country far and away,” and calls her legal team’s approach “stunningly successful.” But as she speaks, two San Francisco Chronicle reporters, Lance Williams and Mark Fainaru-Wada, face the very real possibility of doing up to 18 months in jail for refusing to appear before a federal grand jury and answer questions about who leaked grand jury testimony to them. (Hearst owns the Chronicle.) The reporters generously quoted the testimony in a series of articles, published in 2004, detailing how the Bay Area Laboratory Cooperative supplied banned drugs to star athletes like Barry Bonds and Marion Jones. Federal courts have flatly rejected the notion of a First Amendment privilege that insulates journalists from testifying before grand juries. Last September, San Francisco federal district court judge Jeffrey White held that he had no choice but to declare the reporters in contempt and fine the Chronicle $1,000 per day. The penalties have been stayed pending appeal. The Ninth Circuit U.S. Court of Appeals will hear arguments in March. A confident Burton pegs their likelihood of winning as “high.” Burton’s team spirit may be admirable, but when battling the government, a news organization’s interests may differ from those of its reporters. In the last major blowup over reporters’ refusal to name sources before a federal grand jury � involving reporting by Judith Miller of The New York Times, and Matthew Cooper of Time magazine about Valerie Plame of the Central Intelligence Agency � the reporters learned they were better served by hiring their own lawyers and not relying on those representing their publications. So far the Chronicle reporters and their employer say their interests are aligned, and they have been represented by the same lawyers. The same was true at the start of the government’s investigation into the Plame leak, where First Amendment star Floyd Abrams of New York’s Cahill Gordon & Reindel represented all the media interests: Miller, the Times, Cooper and Time. As the case progressed, Cooper and then Miller retained their own lawyers, which were paid for by their employers. “Matt [Cooper] didn’t have exactly the same interests as the magazine,” says Richard Sauber, a criminal defense lawyer who replaced Abrams as lead lawyer for Cooper. “The first thing I wanted to do was make sure my client didn’t go to jail.” Says Cooper, who is now Washington editor of Conde Nast Portfolio: “I found it to be very valuable, especially if the employer is a party.” As an example of differing interests, Sauber, a partner in Fried, Frank, Harris, Shriver & Jacobson’s Washington, D.C., office, notes that a media company might, for institutional reasons, be more reluctant than a reporter to seek a release of confidentiality from a source. Miller hired Robert Bennett of Skadden, Arps, Slate, Meagher & Flom. “It’s just smart,” says Miller, who is now a freelance journalist. “You can’t always assume the interests of the institution and the reporter will completely coincide.” Bennett argues that a civil contempt case is so close to a criminal case that reporters need their own lawyers. “In criminal law the burden to represent two people is so momentous. [Separate counsel] seems like the wise thing to do.” Abrams acknowledges that criminal defense lawyers see these situations differently. “As a general matter,” he says. “I think it’s a good thing to have a single lawyer as long as possible,” says the Cahill partner. “It’s just so much easier.” Hearst’s Burton says she hasn’t considered separate representation for her reporters. “We’re a very united team,” she says. “I’ve made decisions in the best interests of the reporters.” The reporters agree. “We’ve had great lawyering,” says Williams. Adds Fainaru-Wada: “We’ve had complete support from Hearst, and they’re ready to go to the wall for us.” Before the articles were published, the reporters never discussed the possibility that they might go to jail. “There was never an explicit conversation that we might face jail time,” says Fainaru-Wada, who adds, “It didn’t need to be said.” Williams says he never expected their use of the grand jury testimony to escalate to this point. “I was pretty sure the government would be interested in learning our sources, but I really didn’t think it would subpoena us,” he says. “It was a sports case and there was no harm to anyone’s safety.” Did the Chronicle’s lawyers share this view? “I didn’t ask the lawyers,” says Williams. “I didn’t do the consulting [with the lawyers]. My bosses did.”
‘Only quite recently have reporters and editors been sensitized . . . about the possi-bilities of sub-poenas.’

Peter Scheer California First Amendment Coalition

Peter Scheer, the executive director of the California First Amendment Coalition, says it’s not surprising that the reporters didn’t anticipate this outcome. “Only quite recently have reporters and editors been sensitized . . . about the possibilities of subpoenas,” he says. In its Ninth Circuit brief, the government portrays itself as a model of restraint. It claims it has sought confidential source information from reporters only 19 times in the past 15 years. This case warrants exceptional action, it argues, because a crime may have been committed if grand jury testimony was leaked in violation of a judge’s protective order. The government notes that even attorney-client privilege is lost when lawyers are involved in furthering a crime. The government offered the reporters immunity to testify, but they declined. The Ninth Circuit recently turned down another claim of journalistic privilege. In September the court rejected the appeal of freelance writer and blogger Josh Wolf, who has refused to turn over videos he made of a demonstration. At press time he remained in jail. Burton has lined up a sprawling defense team from five firms. They include Abrams; San Francisco trial lawyer Gregory Lindstrom of Latham & Watkins; former federal prosecutor David Shapiro of the Oakland office of Boies, Schiller & Flexner; New York criminal defense lawyer Christopher Morvillo of Morvillo, Abramowitz, Grand, Iason Anello & Bohrer; and appellate specialist Kathleen Sullivan, the former dean of Stanford Law School who is of counsel at Quinn Emanuel Urquhart Oliver & Hedges. But she stresses that these outside lawyers are limited to a “counseling” role, and that her in-house lawyers are doing most of the work. “I don’t think we could have hired a single law firm that could have done this as well,” she says about her staff’s efforts. Although appellate star Sullivan would seem to be a natural choice to handle the argument, Burton says that one of her in-house lawyers will handle it. Burton sounds eager to see the Chronicle case taken up by the U.S. Supreme Court and expand federal protection for reporters. The court hasn’t directly addressed a federal reporters privilege since the landmark decision of Branzburg v. Hayes, which rejected that privilege 35 years ago. Since then, many states have recognized a reporters’ shield law, but there remains no protection under federal law. “This is the single best case factually you could have,” she says. “It’s not a national security case, extraordinary journalism was produced, and the articles were entirely accurate.” Skadden’s Bennett isn’t so sure. “The court is likely to feel that leaking grand jury testimony goes so much to the integrity of the grand jury system that the government has to take whatever steps it can to stop this.” Fainaru-Wada and Williams seem willing to be guinea pigs. Like Burton, Fainaru-Wada believes the facts of their case are “quite good” for a test case because, unlike the Judith Miller case (which the Supreme Court declined to hear) it doesn’t involve national security. Still, he realizes that he and Williams don’t face the best odds. “You know, the law is obviously not great [for us on this issue], but I try to remain optimistic that somewhere along the line we will get relief.” Susan Beck is a reporter with The American Lawyer, a Recorder affiliate based in New York City.

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