Baseball, the Law, and the Rules, Part III: Barry Bonds Takes on the First Amendment,
Attempting to Use Grand Jury Secrecy Rules to Attack the New, Controversial Book Alleging His Steroid Use

By HOWARD WASSERMAN

Friday, Apr. 07, 2006

This is the third in a series of columns. Part One discussed the efforts of Congress and of Major League Baseball to investigate and punish steroid use by players. Part Two examined the implications of alleged steroid use on Bonds' (and others') Hall of Fame status. - Ed.

Superstar Barry Bonds begins the 2006 baseball season on the brink of immortality, within range of passing both Babe Ruth and Hank Aaron for the top spot on the all-time career home-run list. He also begins it under a microscope -- with the recent publication of the book Game of Shadows, by Mark Fainaru-Wada and Lance Williams.

The book details Bonds' alleged use of anabolic steroids, human growth hormone, insulin, and other performance-enhancing drugs to fuel his late-career transformation into the greatest hitter in the history of the game. The book is based in part on testimony (including Bonds' testimony) and evidence presented before a federal grand jury investigating the Bay Area Laboratory Company (BALCO) and its principals, who allegedly produced and sold performance-enhancing drugs to numerous high-profile athletes, including Bonds.

The book's allegations already have received a great deal of attention and are bound to receive more, now that Major League Baseball has undertaken a formal investigation, headed by former Senate Majority Leader George Mitchell, into steroid use in baseball since September 2002.

Bonds has responded with a legal assault against Game of Shadows. But the First Amendment is likely to prove a more-than-worthy adversary for the baseball star.

Bonds' Two-Pronged Legal Attack

Bonds launched his legal offensive on two fronts. First, he filed a lawsuit in California Superior Court against Fainaru-Wada, Williams, and their publisher, Gotham Books. He also named as defendants the San Francisco Chronicle, which published Fainaru-Wada and Williams' stories on Bonds' grand jury testimony, and Sports Illustrated. which published excerpts of Game of Shadows prior to publication. Bonds sued under California's Unfair Competition Law (Business and Professional Code § 17200), which prohibits "any unlawful, unfair or fraudulent business act or practice."

Second, he sent a letter to United States District Judge Susan Illston, who is presiding over the BALCO grand jury proceedings. The letter requests that she initiate contempt-of-court proceedings against the authors and publishers violating rules requiring secrecy in grand jury proceedings. Judge Illston already has conducted one hearing regarding leaks in this case.

In both cases, Bonds claims that Game of Shadows is based on sealed and secret grand-jury testimony and evidence. He argues that, as a witness before the grand jury, he received guarantees that his testimony and all other evidence would be confidential. And he says that Fainaru-Wada and Williams' use of this information as the basis for their book deprived him of these guarantees, and deprived the public of its faith and confidence in the confidentiality and integrity of the grand jury system. As a result, the book is both an unfair or unlawful business act under state law and contemptuous of the federal court overseeing the grand jury proceedings.

Going After Profits Alone Does Not Obviate the First Amendment Problem Here

Bonds and his attorneys, seeking to avoid First Amendment problems, focus not on publication of the book, but on the profits that the authors and publisher stand to earn from sales of the book.

The letter to Judge Illston requests a narrow contempt order requiring disgorgement of profits derived from the use of the sealed and leaked grand jury evidence (as opposed to, for example, an order jailing the journalists for their misconduct). Bonds and his lawyers insist that "we do not wish to stifle public debate about steroid use by professional and amateur athletes."

Similarly, the Unfair Competition lawsuit seeks an injunction preventing the defendants from retaining any profits from the book, but does not in any way seek to restrain publication or sale. As one lawyer told the California Superior Court, "They can speak as much as they like on this topic. They just can't make a profit."

Nice sound bites -- but the argument is fundamentally wrong as a matter of First Amendment law. Courts recognize that placing a financial burden on a speaker functions as a disincentive to speak--or, in this case, to write or agree to publish a book--that would, if permitted, threaten to reduce the sum total of available reporting on what even Bonds concedes is a matter of great public concern worthy of discussion and debate.

The First Amendment thus subjects laws that financially burden speech to the same rigorous scrutiny as laws that directly prohibit or restrain speech.

The First Amendment Versus Grand-Jury Secrecy: Which Will Prevail?

The key to the First Amendment analysis is the principle of Smith v. Daily Mail Publishing, that if the media "lawfully obtains truthful information about a matter of public significance," then government "may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order."

The issue, then, is whether Williams and Fainaru-Wada "lawfully obtained" the grand jury evidence.

On one hand, Federal Rule of Criminal Procedure 6(e) prohibits disclosure of grand jury proceedings by various participants in the process, but not by members of the press. The rule also does not prohibit the receipt, possession, or use of those proceedings. Fainaru-Wada and Williams did not violate this rule in receiving and publishing the information, making their obtaining of the information lawful for Daily Mail purposes. (Of course, they could be held in contempt if, for example, Judge Illston questioned them about the leak and they refused to answer).

On the other hand, a federal criminal statute prohibits receipt of government records, with intent to convert them to one's own use, knowing those records had been stolen. Fainaru-Wada and Williams "received" government records. The open question is whether publishing the content of the records constitutes "convert[ing] to one's own use." If it does, they will not have obtained the records lawfully and their subsequent publication may be subject to punishment--whether by contempt or by civil liability.

Morever, even if Fainaru-Wadu and Williams did not break the law in obtaining the grand jury evidence, the First Amendment does not automatically protect publication. The Supreme Court has explicitly refused to hold that the publication of truthful, lawfully obtained information on a matter of public import never can be punished. Of course, the Court never has found any interest of a sufficiently high order to outweigh free-expression interests, meaning Game of Shadows likely will be protected, as well.

The Legal Path Not Taken: Defamation

A separate question is why Bonds has not sued the authors and publisher for defamation. Some have claimed that this failure is tantamount to an admission that the book is accurate. But this is too simplistic.

In order to prevail on a defamation claim, Bonds must do more than prove the statements in the book were false (a substantial burden in itself). Under the First Amendment, a public figure (which Bonds surely is) also must prove (by the elevated standard of "clear and convincing evidence") that the false statements in question were published with actual malice--that is, with knowledge that they were false, or with reckless disregard for whether they were true or false.

This is an extremely difficult standard for a plaintiff to satisfy. But the Supreme Court has held that the First Amendment demands it--to allow "breathing space" for discussion of public issues in which some error is inevitable and to avoid the risk of media self-censorship. Thus, even if he could prove falsity, Bonds would have a difficult time prevailing on a defamation claim, such that the lawsuit may not be worth the cost and effort.

Ultimately, Bonds likely will find, in both the lawsuits and legal challenges he has brought and those he has chosen not to bring, that the First Amendment is a tougher opponent than most major league pitchers.


Howard Wasserman is Assistant Professor of Law at Florida International University College of Law. He is a lifelong baseball fan and a Chicago Cubs loyalist. He also has found that baseball and the First Amendment overlap in many unexpected ways. He can be reached at howard.wasserman@fiu.edu.

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