This is tough. Time Inc. announced this morning that the magazine will "deliver the subpoenaed records" — ie turn over reporter Matt Cooper’s notes and source about Valerie Plame — in the hopes that the move "obviates the need for Matt Cooper to testify and certainly removes any justification for incarceration." Later, on sibling CNN, Time Inc. Editor in Chief Norman Pearlstine explained that he believed this was the best way to respond to the Supreme Court’s decision not to hear the cases of Cooper and Judith Miller, that the First Amendment does not mean journalists are above the law and this is the rule of law.
But, he said, Time would continue to use confidential sources and assure confidentiality because this is an unusual confluence of circumstances, the shield laws offer some protections and most cases wouldn’t end up with a Special Prosecutor. That’s if sources concerned about anonymity still want to be involved with Time, of course.
I’m sitting here with a small, blue three-ring binder labled "Time Editorial Guidelines" that I once consulted like a bible, back when I logged serious hours as a Time stringer. I still use the July 1987 memo from then-Time Inc. Editor in Chief Henry Grunwald as a bookmark; that’s Grunwald as in the late father in law of Matt Cooper.
On rare occasions, I had to promise confidentiality to sources. I did so with these words behind me:
"It is Time Inc. policy not to reveal the identity of a confidential source, even if an edit staffer is questioned about the source of the identity in litigation. The senior person, who may be required to testify with respect as to why the source was considered reliable, must be prepared to protect the confidentiality of the source."
That language and the rest of the section is aimed primarily at the use of confidential sources in what might be derogatory stories. And, Grunwald made it clear in that memo, that these were only guidelines, "not absolute rules of conduct." He wrote:
"There can be situations in which good journalistic judgment will indicate proceeding differently. The important point to remember is that Time Inc. journalism must continue to adhere to the high standards that have always prevailed within our organization."
According to an interview with Pearlstine in Folio, the company rewrote the most recent confidential source guidelines to make it clear to reporters and editors that protecting sources could lead to jailtime. I don’t know if the rewrite included a warning that confidentiality would be breached if Time Inc. lost in litigation — or that it would make that decision over the objection of the reporter. Cooper told the Wall Street Journal:
"A corporation is not the same thing as individual. They have different
responsibilities and obligations and there is no dishonor obeying a
lawful order backed with the force of the Supreme Court of the United
States. I prefer they not hand over documents that disclose the
identity of my sources, but that’s their decision to make."
I understand Pearlstine’s concern that journalists not appear to
think they are above the law. But that doesn’t leave compliance as the
only course of action. Arthur Sulzberger Jr. understands that. So does
Judy Miller. (Disclosure: I also was a very active stringer for the
Times for years and Miller was one of my editors.) Sulzberger’s statement from this morning via the Times Online:
"We are deeply disappointed by Time Inc.’s decision to deliver the
subpoenaed records. We faced similar pressures in 1978 when both our
reporter Myron Farber and The Times Company were held in contempt of
court for refusing to provide the names of confidential sources. Mr.
Farber served 40 days in jail and we were forced to pay significant
fines. Our focus is now on our own reporter, Judith Miller, and in supporting her during this difficult time."
Pearlstine referred to the Supreme Court’s non-decision as limiting "press freedom in ways that will have a
chilling effect on our work and that may damage the free flow of
information that is so necessary in a democratic society." But it’s his decision, not that of the Supreme Court, that’s turning Time Inc. into an ice house.