When the two San Francisco Chronicle reporters who covered the Balco case published grand jury testimony of Barry Bonds and other players, they were acting within proper journalistic bounds. Prosecutors and defense lawyers are not permitted to disclose grand jury testimony, but reporters are not bound by that restriction.

Thus Mark Fainaru-Wada and Lance Williams violated no laws or standards of ethics in reporting the testimony, but the defense lawyer who allowed Fainaru-Wada to review the transcripts, Troy Ellerman, wound up being sentenced to two and a half years in prison after he admitted that he leaked the testimony.

I raise the Balco case as a forerunner to a more current development in the world of sports and steroids. Two weeks ago The New York Times reported that Sammy Sosa’s name was on a list of 104 players who tested positive for use of illegal performance-enhancing drugs in 2003. That was the first year baseball tested for steroids, and the results were supposed to be anonymous and confidential.

However, Federal agents seized the results in two raids, and their action has been the subject of a court battle for more than three and a half years, with no end in sight. Meanwhile, all of the proceedings in the case, including test results, have been placed under court seal.

Early this year, Sports Illustrated reported that Alex Rodriguez was one of the 104 players who tested positive. He quickly admitted his indiscretion. Sports Illustrated said its information came from four sources, who were not identified. I am highly skeptical that there were four sources. Reporters often embellish their sources to make the stories more credible.

In its report on Sosa, the Times cited an unspecified number of “lawyers with knowledge” of the results. But the Times went further. “The lawyers who had knowledge of Sosa’s inclusion on the 2003 list,” it said, “…spoke on condition of anonymity because they did not want to be identified as discussing material that is sealed by a court order.”

That explanation raised the eyebrows of some lawyers.

One lawyer who is involved in the case said they spoke anonymously because they didn’t want to be disbarred or prosecuted. Donald Fehr, executive director of the players union, said, “Nobody ought to be violating those court orders. If lawyers are violating those court orders, that’s a really troubling thing.”

But what was the role of the reporter in eliciting the sealed information?

Richard Moss, former general counsel of the baseball union, said, “That may be soliciting a crime if the reporter knew that the lawyer was under restraint from the judge.”

The Times reporter, Michael Schmidt, obviously knew the results were under court-ordered seal because he wrote that they were. That knowledge did not deter him from trying to induce lawyers involved in the case to disclose names. He called a number of lawyers, said one lawyer with links to the case, and invited them to violate the court order.

Schmidt declined to discuss the issues involved or respond to the strong suggestions of other lawyers that he was as culpable as the lawyers who gave him Sosa’s name from the list.

Instead, in response to an e-mail seeking comment he said he would let a response from Bill Keller, the Times’ executive editor, speak for him.

“We stand by our story, and our reporter,” Keller wrote in an e-mail. “The idea that ordinary journalistic inquiry constitutes criminal activity is ludicrous. We ask people questions all the time that it would be imprudent or risky for them to answer. Whether or not they answer is up to them. Sometimes, whether out of civic-mindedness or for other reasons, they disclose information that powerful institutions intended to be secret. Sometimes we publish that information. It’s called journalism.”

Keller’s view is not surprising. Neither is the view of other lawyers I spoke to.

Sam Reich, a criminal lawyer in Pittsburgh, who has also represented baseball players, said, “I think everybody who violates the court order or knowingly induces somebody to violate the court order is guilty. I’m shocked at the conduct of the lawyers involved. But I don’t think newspaper reporters have a special right to information that by law is confidential. Knowingly attempting to obtain that kind of information for an improper purpose is a violation of the law.”

Reich, whose brother Tom has long been Sosa’s agent, said receiving information that is under court seal “is not like an investigation is going on and a resourceful reporter finds out something.” It is, on the other hand, he said, similar to receiving stolen property, which is a crime.

“I think there could be significant liability on the part of the reporter,” he added. “I think the newspaper reporter is doing the wrong thing. Among the other people who get punished for disclosing anything under seal, the reporter should be punished.”

Another lawyer, who is connected to the 2003 case, said he believed Schmidt “engaged in a conspiracy with lawyers that were subject to the court order.”

“Any time you encourage someone to break the law and assist them in breaking the law you’re crossing an ethical line and a legal line,” he added. “Anybody who has the content of the list is subject to that court order. If you assist or encourage those people to violate the court order, you’re encouraging them to break the law. The judge’s order is the law,”

Andy Schotz, chairman of the ethics committee of the Society of Professional Journalists, said there might not be a right or wrong answer to the question of whether the Times crossed an ethical or a legal line.

“An important question to ask,” he said, “is does the news value of what you’re doing override the pitfalls of taking the drastic step of breaking laws. It’s not what you should do lightly, but there are times you might do that.”

“I don’t know whether Sosa’s test results rise to that level,” he added. “I think that’s up to the news organization to decide.”

If soliciting and obtaining sealed information from a lawyer constitutes breaking the law, the Times would be hard pressed to argue that Sosa’s negative result rises to the level Schotz refered to.

Schmidt did not have an altruistic or noble reason for getting Sosa’s name or any name. He just wanted to get a good story and beat the others covering the steroids scandal. Sports Illustrated had Rodriguez; the New York Daily News had other stories since Schmidt last broke a steroids story. He wanted to get back in the game.

“The whole steroid issue seems to have people looking for information,” Schotz said. “There seems to be a much lower standard. The feeling is any time you can get a scoop you do it.” But Schotz raised a relevant question: “Is any particular name going to surprise anyone any more? Nobody is above suspicion. Is it worth pursuing to unusual means to get one more name?”

Schmidt and the Times evidently thought it was. The Times realized four or five years too late that it had made a major mistake when it ignored the Balco story and ceded coverage to other newspapers, primarily the Chronicle. So getting a name, a big name, if possible, was important, and Schmidt got his Sosa scoop. Now it’s just a question of what he did to get it.