When Norman Pearlstine, the lawyer who serves as Time Inc.’s editor-in-chief, parted company with his peers yesterday in deciding to hand over documents revealing reporter Matt Cooper’s confidential sources to a grand jury, he set off waves that will ripple through the three-day weekend of every reporter and editor in the country who might ever face a similar dilemma.
Obviously, for days, the lawyer in Pearlstine versus the editor in Pearlstine versus the corporate executive in Pearlstine waged quite a three-way struggle — and, in the end, as he puts it himself, the lawyer won.
And that’s a bad thing gone down, for both press and public. Let us try to explain why.
Pearlstine told the New York Times he decided that “if presidents are not above the law, how is it that journalists are?” And so it is that Time Inc. took a fork in the road spurned by the New York Times itself, another publication facing the imminent prospect of one of its reporters going to jail for not revealing a source. (Dept. of Full Disclosure: The author worked for Time Inc. and for Pearlstine from 1996 through 2001.)
Pearlstine noted that President Harry Truman bowed to the Supreme Court in 1952 when it blocked his plans to nationalize the nation’s steel mills, and that 20 years later Richard Nixon turned over the Watergate tapes after the courts ruled that investigators’ demands trumped executive privilege. “Who am I to defy the courts,” he asked himself and others, when even Truman and Nixon bowed to judicial edicts? But that’s an argument based on a false equivalence. If a President Truman (or Nixon) had defied the Supreme Court, we would have had a constitutional crisis on our hands — one certain to lead to Congressional action, possibly popular uprising, perhaps even martial law. Whereas if an editor defies the Supreme Court to protect both a source and his own reporter’s word of honor, the worst he risks is going to jail, and the worst his employer risks is punitive fines. The stakes are hardly the same.
So, sorry, Norman, you’re no Harry Truman. Unfortunately, neither are you a Henry David Thoreau or a Martin Luther King.
For while it’s true that “we are not above the law,” as Pearlstine solemnly intoned in an interview with CNN, it’s also true that, as press critic Sydney Schanberg put it in the Village Voice, “sometimes, our history tells us, when a good citizen believes the law is acting wrongly, he can oppose it with respectful civil disobedience and accept the consequences, including going to jail. Does Thoreau come to mind, Norm?”
Sandra Mims Rowe, editor of the (Portland) Oregonian, elaborated on that thought: “If a company refuses to obey a law it believes is wrong, and agrees to penalties, that doesn’t mean the company is acting as if it’s above the law,” she told the Los Angeles Times. “It means that the company is taking a principled position…. Editors and reporters don’t give up this information. It’s inviolate. We just don’t do this.”
But for a Pearlstine, straddling two worlds, a day at the office is more complicated than that. Time Inc. is a vast enterprise, publishing Time, Fortune, Money, Sports Illustrated, People, Entertainment Weekly and over 100 smaller magazines — yet, for all that, it is but one division of the megalith entertainment company Time Warner. As David Halberstam told the New York Times, Time Inc. “is a strange company and it’s a different company now, and it is really part of an entertainment complex. The journalism part is smaller and smaller. There is a great question out there: is this a journalistic company or an entertainment company?”
Once media companies become part of larger conglomerates like Time Warner, Viacom, Disney, General Electric, those companies and the journalists they employ have sharply diverging obligations. And the top editors among them find themselves with one foot in each camp. Was Pearlstine, for example, acting as a journalist, or as a corporate executive? As Zachary W. Carter, a former U.S. Attorney in Brooklyn, puts it, “I don’t believe that a company has the right to put the assets of its shareholders at risk in an act of civil disobedience. On the other hand, the reporters are only faced with the consequences to them personally. They have the absolute right to put their liberty and fortunes at risk.”
In the meantime, Fordham University communications professor Paul Levinson told USA Today that Pearlstine’s decision sends a “bad message” to the rest of the news media, especially smaller outlets with less editorial clout than Time. “How is some local paper in a rural state going to find the courage to stand up to this kind of thing if Time doesn’t have the courage?” Levinson asked.
The upshot? Sources who know things that the public should know will be less likely to tell, and reporters who should pass that information on to their readers will be less certain that they will be supported by their bosses if hauled before a judge. Local and federal prosecutors will demand the identity of such sources more often, and reporters will spend even more time in courtrooms instead of out gathering the news.
Closer to home, Pearlstine has hung his own staff of many hundreds of reporters and many dozens of editors out to dry. After all, from a practical point of view, why should any source seeking anonymity hereafter trust a reporter from any of Time Inc.’s magazines?
In short, no good can come of any of this.
Steve Lovelady was editor of CJR Daily.
Except perhaps for Norm Pearlstine — who, if nothing else, has joined that select handful of people who know with assurance precisely how the first sentence of their obituary is going to read.