The Supreme Court has considered a case involving reportorial privledge exactly once, in the 1972 case Branzburg v. Hayes. In that case, a trio of reporters were subpoenaed to testify about illegal activities they witnessed in the course of their reporting: drug dealing and Black Panthering. In his 5-4 majority opinion, Justice Byron White held that reporters should not have a “testimonial privilege that other citizens do not enjoy.”
In that same decision, White wrote that there should be a “test” before reporters are compelled to testify before a grand jury. Citing Gibson v. Florida Legislative Investigation Comm., White said that the government needs to “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.”
For most of the last three decades, this ruling against the press has been used to support the press: because of White’s establishment of a “test,” reporters have almost never been called before a federal grand jury to reveal their sources. (Most states have shield laws granting reporters the right to protect their confidential sources.)
This, as you might have noticed, is no longer the case. In the past several years, this “overriding and compelling state interest” has time and time again been interpreted as anything the government wants to know about a journalist’s sources or methodology. The latest battleground is the Balco grand jury leak case. Earlier this week, a Federal judge in San Francisco ruled that Mark Fainaru-Wada and Lance Williams, San Francisco Chronicle reporters and the authors of the book Game of Shadows, must reveal the sources that provided them with grand jury testimony regarding Barry Bonds’ steroid use. Oh, and the sources who told them that Jason Giambi had admitted to that same grand jury that he had treated his body as a grand science experiment. (It’s no accident that Giambi shares cover billing with Bonds on Game of Shadows.) In that testimony Giambi acknowledged that, at the very least, he had used either steroids or human growth hormone during three of the four years in which he’d hit more than 35 home runs: 2001, 2002, and 2003. In the year after Giambi’s last acknowledged HGH-fueled year, he hit 12 home runs and batted .208.
I’ve said much every chance I get that I think the fact that Giambi won last year’s Comeback Player of the Year is a sham. And I haven’t met a single person in baseball–club officials around the league, New York beatwriters, etc–who is convinced beyond a doubt that Giambi is now clean: his turn-around is too stark, his history too suspect. I’m sure he’s being tested more than your average bear. But MLB doesn’t currently take blood samples (or store its urine samples) and has no way of testing for HGH…Giambi’s admitted drug of choice just three seasons ago.
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Earlier this week, Giambi told a reporter from MLB.com that grand jury leaks are a “serious issue.” “When we were brought in [to the grand jury], we had to talk about our situation that we went through,” he said. “People want to know the same thing now, because these laws are what our country is based on. However they obtained it, it was illegal.” Indeed, Giambi says he’s now concerned about the sanctity of the American legal system (although the sanctity of the profession that’s made him rich doesn’t seem to concern him): “There are now a lot of people who won’t testify in front of a grand jury because of the situation that has gone on. It was a situation that, who knows what would have transpired” had his testimony not been leaked. “I went through what I did and moved forward. I haven’t looked back.” That’s for sure: Giambi is currently on pace to hit 48 home runs, five more than his previous best.
A year and a half after his pathetic non-apology apology, Jason Giambi is lecturing reporters on their need to take responsibility for their actions. (Giambi, for anyone who doesn’t remember, made the Yankees remove the word “steroid” from his 2001, $120 million contract.) Chronicle editor Phil Bronstein has said his paper will not comply with the government’s demand that his reporters give up their sources. And there’s now another brewing showdown that could result in reporters in jail.
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I’m pretty much a First Amendment absolutist: I think a robust free press is necessary for the healthy functioning of a democracy. That doesn’t mean I think reporters shouldn’t be held accountable or should have free license to operate outside of the law. In the cases involving the New York Times’s Judith Miller and Time’s Matt Cooper there was, at the very least, a compelling argument to be made for both sides.
That is not the case here. There is no “overriding and compelling state interest” outside of the government’s desire to keep grand jury proceedings secret. This is about steroids and baseball, not WMDs and war. Jason Giambi will not have any effect on the ultimate outcome of this case. But the fact that he’s acting as if he’s now concerned the Balco leaks will effect whether or not people feel free to testify in front of grand juries in the future is pathetic.
A friend of mine was going through an online baseball draft earlier this year. One of the GMs picked Giambi and a GM from NYC IM’ed in the following response to his pick: “That guy still takes showers in HGH every morning.” This guy is as dirty as ever and it shows in his appearance and performance.
Jason Giambi winning “Comeback Player of the Year” last year…more proof that Baseball supposedly cleaning up it’s steroid act is just a sham. As much as I hate to say it, I think it’s time for the government to start passing some testing laws along what the IOC does for Olympians.
Great post, Seth. Really puts Giambi in his place, and puts things in perspective in terms of grand juries, free press, etc.
Love the blog, look forward to checing out the book…
Actually Seth missed one point, we as fans are just as much to blame for the whole steroid thing as anyone. We still drink at the till of hero worship for NFL/MLB/NBA games (not to mention other sports as well). We’ve never demanded any kind of accountability from the juicing superstars and we still cheer our “heroes”(I live in the San Francisco Bay Area…Bonds is still worshipped here and I believe Giambi is once again loved in NY).
At this point, I’m not sure what we can do. I think sportswriters in general missed what was the greatest story of the last part of the century in the steroid mess. I’m personally getting to the point where I’d rather have them wipe out the last 15 or 20 years of records just to set things straight again. It’s really a complete joke now.
Seth,
Great post, he(JG) is the antithesis of anything moral or legal. Obviously, he’s now the poster child for leaks in grand juries and how they can ruin your life, no wait, thats right hes still making 15M per year to be one of the worst 1st basemen ever to don a glove, but he sure can hit(well, as long as he’s getting his daily dose!).
I wonder if he never took HGH and wasn’t one of the players leaked on, if his opinion would exist or if he would even know what a grand jury did. Maybe, just maybe JG has a new career in the legal field. Jason Giambi, esq.
That offense sure isn’t doing it’s job, is it Mr. Timlin?
Wow, this “player development machine” sure is churning out the gems. Where in the “player development manual” does it talk about top young player regressing with experience, instead of improving? (see Beckett, Lester, Hansen, Crisp)
Good thing we gave Hansen all those 4 inning starts at Pawtucket to “improve his pitchability”. Looks like that did wonders for him.
Papelbon appears to be the exception, although he’s in a role he wasn’t even “developed” for in the minor leagues.
I’m looking forward to wasting more of Ortiz and Manny’s remaining prime years.
Just think, in 3 to 4 years when the Red Sox have their “long term plan” running full steam, they’ll wake up and realize Manny & Ortiz are gone or in steep decline. Then they can tell us to be patient for a few more years while they try to find their replacements.
Only the Red Sox would “switch gears” and take steps backwards while having perhaps the best 3-4 hitting combination in history.
Hey Theo, how’d Johnny Damon look today?
Not sure if a fan of Ortiz and Manny should rip on anyone using PEDs. Unless you’re naive enough to think they’re clean. I’m sure your not. In fact, I’d like to know what you know about Red Sox and PEDs. A pitcher said they were everywhere. I’m sure you saw something. Too much of a fan to publish it?
I think “pepsicorp” has a point. Manny had a performance spike at one point in his career that looks suspiciously like he started using performance enhancing drugs. Also, Ortiz’ doughboy physique suddenly transformed into solid muscle at some point in his career. They are both clearly using.
Seriously, baseless accusations like that just reflect the person who is lobbing them. Manny’s performance has been the model of consistency from day one in the ML. Not to mention that his swing and balance at the plate is nearly flawless. He also looks almost exactly the same size as when he came up from the minors. Let’s see some before and after pics and compare them to Giambi and Bonds….
Ortiz definitely had a performance spike but it just happened to coincide with him finally getting his shot at being a fulltime player and the fact that Manny was batting behind him in the order. Two things that he never had in Minn. He always had a ton of power but was just injured or inconsistent. If he is taking performance enhancing drugs, he should ask for his money back. He looks like Mo Vaughn less about 25 lbs.
Ahh, the old Ortiz always had power claim. Of course, it’s pure BS. Lifted this from an ESPN post:
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Theory 1: Always had power, just couldn’t hit as well. One poster says he had a season where he hit a HR every 16ab in MN (it was actually closer to 17). But in Boston he’s hitting HRs every 10ab. Heck of an improvement from 25 yrs old to 30. Another said he never made good contact in MN although he hit 270+ 4/5 seasons.
Theory 2: MN coaches don’t know how to coach Ortiz. Nice theory b/c the Twins clearly sucked but they did have competant coaching. TK won 2 WS and manager of the year (you had Williams and Little). Ortiz is the only player from that horrid era of Twins play that left and became a better hitter. Others, like Knoblauch, McCarthy, Cordova and Meares clearly had their best hitting seasons in MN. Obviously, the Sox did have him look at his swing differently but a 40HR improvement based on coaching? Not a chance.
Theory 3: PEDs. Why is this hard to grasp? In MN Ortiz was an extremely well liked player known for being aloof and lazy with a poor work ethic and being injury prone. The Twins, a playoff team now, let him go for nothing and Boston was the only team that gave him a chance. 27 yrs old and he hadn’t even hit 60HRs in his career. Why wouldn’t he try some PED to improve his then failing career? I would’ve, you would’ve.
Theory 4: Twin fans secretly hate Ortiz for sucking for them and becoming good for another team so it must be sour grapes. -sigh- Well, I can’t prove this one if you don’t believe it. Red Sox fans became more hated than Yank fans over the years so you have some ammo here but I don’t really care.
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Since Seth is so high and mighty on the integrity of the game, I’d like to know his thoughts on PEDs on the Sox. You have a former pitcher who said it was everywhere. Manny came from Clev, a team that should clearly raise eyebrows. Let’s hear Seth’s version.
are you aware Gammons himself went out of his way in a column last year to say that it’s very unlikely Giambi is putting anything he shouldn’t into his body?
pepsicorp wrote:
“Ahh, the old Ortiz always had power claim. Of course, it’s pure BS.”
That’s a nice piece of revisionist history but it’s dead wrong. Or, in your words, “pure BS.” Let’s see what the folks at Baseball Prospectus have been saying about David Ortiz:
BP 2000:
“The organization’s litmus test to see if they want to get better in a hurry or just do things their way. Ullger says [Ortiz] has gotten into bad habits at the plate: he had been pitched outside for so long that he wasn’t adjusting to anything inside in the majors, diving across the plate without keeping his head or hands still. Despite all that, he has the best power in the organization [emphasis mine], so the question is whether Kelly will work with Ortiz or bury him.”
Hmmm. OK, well what did they say in 2002?
BP2002:
“…Ortiz looks like he should be some sort of bashing ox, and he began the season that way, but he’s never been healthy or played long enough for anyone to find out what he can really do. Some scouts think he can be Mo Vaughn in his prime; others think he’ll be the shadow of the Hit Dog on whom the Angels spent a bunch of money. Ortiz is probably in the wrong organization to get the playing time he needs.”
So let’s recap: either a) Ortiz got healthy and got the playing time necessary to develop his skills and adjust to major league pitching, or b) he’s using PED. [Or both, I suppose.]
I can’t say he’s not using or never used PED. But your presumption of Ortiz’s guilt isn’t quite supported by the revisionist history (ESPN posts aside).
so… what is alex gonzalez?
what giambi did was clearly wrong. is he still cheating? he’d have to be a bigger idiot than even you seem to think he is.
casting a shadow of suspicion without anything to back it up is bush.
i’m surprised and disappointed. i hope this is not the direction your work is headed. i might as well read shaughnessey…