Time Caves Into the Courts

Most journalists will never have a court ask them to reveal an off-the-record or background source's identity. Prosecutors do try, I think, you get the information they need in other ways and, let's face it, even highly sensitive stories seldom lead to federal grand jury investigations or criminal prosecutions. Stories are more likely to play a role in private lawsuits, and a judge probably wouldn't ask a journalist to betray a source in order to help one citizen sue another.

Still, it does happen and it's happening now as Time magazine reporter Matthew Cooper and New York Times reporter Judith Miller face jail time if they don't reveal the sources who told them the identity of CIA agent Valerie Plame. The judge obviously thinks that the prosecution of a Bush administration official who leaked secret information is important enough. And, of course, the leak of Plame's identity didn't serve the public good in the way that, say, the leak of the Pentagon Papers, which told the country the truth about what was going on during the Viet Nam war did, or, of course, of Deep Throat, who we now know to be FBI agent Mark Felt.

But, this still sets two dangerous precedents. First, the next Deep Throat might choke on his words, lacking the confidence that a Bob Woodward will guard the secret until they decide to reveal themselves. Second was Time Magazine's actions -- Time had decided, over Cooper's objections, that they'll hand over Cooper's notes (which, we can assume he gave to the magazine's lawyers when this whole thing began).

Cooper faced jailtime, but Time faced fines for Cooper's refusals. Is that why they're doing this? Probably. They also might be looking out for Cooper by taking the decision off of his hands, allowing him to maintain his personal integrity without facing jail time. I suspect a little of both go into Time's decision.

But journalism is a very personal profession. A source's relationship is primarily with the journalist, not the publication. Sure, working for a big publication helps, since sources know you can make better use of what they know than they can by, say, starting up a blogger account, and they figure if you work for a big place, you must be pretty good and credible. But, in the end, it comes down to Mark Felt trusting that Bob Woodward would use the information properly and keep his secret. Time hurts the profession by telling whistleblowers, especially in government, that the person you're dealing with will ultimately not make the final decision.

Time isn't technically wrong. Cooper used their names and resources to pursue the story. Time owns those notes, the same way my employer owns the work I produce for them. But, this causes a problem for anybody with a sensitive story to tell -- sure, the guy I'm talking to might be willing to go to jail to protect me, but are his bosses willing to let him?

Time is ill-served by this maneuver. Its reporters might be trustworthy, but they answer to a higher power that isn't.

Thing is, we'll never see the fallout from this. It will only be recounted in the stories that aren't told.