The BALCO mess or travels in the gray areas of confidential source arrangement.

Media criticism.
Feb. 20 2007 11:30 PM

The BALCO Mess

Or travels in the gray areas of the confidential source arrangement.

(Continued from Page 1)

That Ellerman was a special kind of sleaze surely occurred to the Chronicle reporters upon first meeting. I'm sure they regarded him as a treacherous force, but one whose perfidy served their ends, and that those ends advanced the common good as they understood it—i.e., they had a duty to inform the public of the illegal use of drugs in sports and of the many lies told by the athletes and their employers on the subject.

Under the sketchy rules that govern leaks to reporters, Ellerman had every "right" to deny that he was the source of the leak without having the Chronicle publicly contradict him. Some would say that he was within his rights to blame others—including the prosecutors—for his leak without risking exposure by the Chron. But I get a little woozy at the notion that Ellerman's "deal" might have included the right to break additional laws that the Chronicle must ignore. Indeed, by viewing additional grand jury documents after Ellerman filed his motion, Fainaru-Wada almost seems to be sanctioning the lawyer's blatantly illegal motion.

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There is a school of thought that says as long as Ellerman didn't give the Chronicle any bad information he upheld his side of the bargain, and that's that. Law professor Alexander M. Bickel, who represented the New York Times in the Pentagon Papers case, veers in this direction. In his much cited book The Morality of Consent, he holds that journalists shouldn't over-worry about their source's motives, writing that "the presumptive duty of the press is to publish, not to guard security or to be concerned with the morals of its sources." What matters first is the quality of the information reporters produce. "[T]he weight of the First Amendment is on the reporter's side, because the assumption underlying the First Amendment is that secrecy and the control of news are all too inviting, all too easily achieved, and, in general, all too undesirable," he continues.

Not knowing the inside story, I won't rush to judge the Chronicle's recent travels in the gray area of confidential source arrangements. But I do have a few questions for the paper. When—if ever—did it part ways with Ellerman? Does the Chronicle regret having quoted so faithfully from grand jury transcripts? Was it trying to bait prosecutors into subpoenaing its reporters? That's how it looks from a distance. Does it regret the last taste it took of the transcripts? Why didn't the paper do a better job in preparing the public for the Ellerman bombshell? During its long legal fight to keep its reporters out of jail for refusing the grand jury subpoenas, the Chronicle gave no indication of its morally ambiguous relationship with Ellerman. It was all "rah-rah-rah" for the First Amendment. Looking back, does the newspaper wish it had done something to prevent its relationship Ellerman from becoming so ... morally ambiguious?

Finally, we journalists always talk about the "chilling effect" when a reporter is threatened with jail. How come nobody is talking about the "chilling effect" of the BALCO source going to jail? Ask the next reporter you talk to whether the resolution of the BALCO leak investigation is going to make it harder for the press to cultivate confidential sources.

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Jack Shafer was Slate's editor at large. You can follow him on Twitter or email him at Shafer.Reuters@gmail.com.

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