Bonds Goes Federal

Barry Bonds is a marvel. During the last few years he’s given us reason to ask questions that need to be asked. What is the limit of human performance on a baseball field? Is the use of steroids truly wrong, or is it a matter of individual choice? How much should it matter if a great athlete is a boor? Are baseball writers racist?Now, in his greatest feat yet, he’s giving us reason to question the entire legal edifice undergirding the freedom of the press to expose ne’erdowelling, shenaniganism, and possibly high-jinks as well. Not since dashing prosecutor Patrick Fitzgerald levied his stern gaze on Times reporter Judith Miller have we had such an opportunity to ponder the relevance of the First Amendment to 21st century America.The instrument Bonds is using is the lawsuit, something even more American than the bat with which he strikes most of his mighty blows. Yesterday, Bonds’s lawyer, Michael Rains, sent a letter to the agent for Mark Fainaru-Wada and Lance Williams, the two San Francisco Chronicle reporters whose new book,”Game of Shadows,” alleges Bonds used steroids and other performance-enhancing drugs for the better part of five seasons.It seems Fainaru-Wada and Williams have unearthed seemingly conclusive evidence that it took more than weightlifting and careful dieting for Bonds to pack on 30 pounds of muscle in one three-month stretch. (Shockingly, the well-sourced reporters claim, Bonds seems to have used a cocktail of steroids and hormones that would make even an Olympian feel like a cheater.)Rains’s letter notified the writers that a lawsuit would be filed against them — as well as their publisher,Gotham Books — in the hopes of seizing profits from the book. The attorney told reporters this suit would hinge on the somewhat novel legal premise that the book was based in part on transcripts of testimony before a federal grand jury that were “illegally obtained and possessed under federal law.”Let no one doubt how disturbing it is that those transcripts were leaked to the Chronicle. Personally, if the feds ever call me to account for my lithe yet muscular build, I’d prefer not to read my secret testimony in the next day’s papers, and I wouldn’t mind a few government dollars being spent on a leak investigation here.Still, Rains’s interesting theories pose all sorts of questions. Say a reporter is leaked classified Pentagon documents that prove the Air Force is carrying out some nefarious plot, and on the basis of those documents and other reporting she writes a book exposing the evildoing. Can the shadowy forces within the government whose devilishness she’s revealed complain to the courts that she shouldn’t have known about it, wasn’t supposed to have proof of their scheme, and thus shouldn’t profit from her knowledge of it?Anyway, there doesn’t seem to be any basis for a civil claim here. From the armchair in which I practice law, it strikes me as being somewhat like suing to keep a reporter who, in the course of writing a book, used some illicit drug “illegally obtained and possessed under federal law” from seeing his or her profits.If the law is to get involved, it would seem to be more up to prosecutors, rather than retainers for obscenely wealthy baseball players. It also seems you’d have about as good a chance of prosecuting someone for writing a book under the influence of a drug as you would of prosecuting a reporter for using material someone else illegally leaked to them.Should the suit carry on, Bonds will have done a wonderful thing for all the pundits who have been wandering the streets like ghosts since the Miller imbroglio died down, though. It’s one of his many services to our society, and yet another thing to put on his Hall of Fame plaque.This kind of legal action is the only avenue available if you want to sue two reporters who have written things you’d rather they not have written, but are unwilling to accuse them of libeling you. Given the standards for libel in this country, it would probably be difficult for Bonds to sue if the authors accused him of injecting the dried remains of Honus Wagner in an attempt to get an edge on the ballfield. (He’d have to prove they didn’t do so in good faith, for one thing.)Since these are exceptionally credible reporters, though, with all sorts of hard, verifiable facts to back up their claims, the fact that Bonds isn’t suing them for telling lies about him, but for using normal reportorial methods, says quite a lot about how much stock to put in his sundry denials of their allegations.Last year around this time, I was rather tired of Bonds, and even wrote a column claiming it would be for the best if he’d just go away. How wrong I was. Like Babe Ruth and Jackie Robinson, Bonds truly has transcended the sport and become a shining representation of his times. We will never see the likes of him again.tmarchman@nysun.com

Bonds Goes Federal

Bonds Goes Federal

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