Last week Time magazine’s editor-in-chief, Norman Pearlstine, announced that he was turning over reporter Matthew Cooper’s confidential notes to federal prosecutor Patrick Fitzgerald, in regards to a Web story Cooper wrote concerning the Valerie Plame case. After months of backing its reporter, Time Inc. succumbed to the rule of law — a decision CJR Daily took issue with last Friday.
So, how did Time magazine itself treat the story in this week’s issue? Ignore it? Nope. Editor’s Note? Nope. Columnist weighing in? Nope. Not-so-critical reported story? Yes.
Three Time staffers, led by writer Bill Saporito, turn out the typical newsweekly summary of events, interspersed with commentary from those on and off the Pearlstine bandwagon.
“How will sources believe that journalists can keep their word?”, asked Tom Rosenstiel, director of Project for Excellence in Journalism.
“Time Inc. fought this hard as anyone could with great lawyers, at great expense. Once [you’ve lost the judicial fight], you have to obey the law,” observed Newton Minow, former FCC chairman and professor emeritus at Northwestern University School of Law.
The article is deft at laying out the facts for its readers. But you can’t help but get a little irritated, not at the authors, but at their boss’ repeated assertion that to defy the courts and take the consequences would place the magazine “above the law.” (As we noted earlier, there’s a distinguished history in this country, stretching from Henry David Thoreau to Martin Luther King, of principaled civil disobediance of unjust laws with full knowledge of the penalties that await.)
Saporito lets it be known where his heart falls in the final paragraph: “In the future, the best hope for journalists may be a federal shield law, now in Congress, which would let reporters keep sources confidential under any circumstances.” That bill has supporters. As Saporito points out, “It’s not that legislators love the media. But when it comes to advancing their politics, legislators can be world-class leakers and could have as much to lose as journalists.”
Over at Newsweek Jonathan Alter takes up, or rather, advocates for a federal shield law. And he’s got a plan. “I’m recommending what might be called the Lysistrata Strategy, after the play by Aristophanes in which ancient Greek women withheld sex from their husbands until they stopped fighting the Peloponnesian War. The reporter-source relationship has sexual overtones anyway (seduction, mutual satisfaction), so here’s the deal: no more off-the-record chats with White House political aides, members of Congress or their staffs unless they support the Free Flow of Information Act, a bipartisan federal media-shield bill now pending.”
Sounds fun, but Alter quickly retreats to the reality-based community: “Now this has about as much chance of actually happening in Washington as banning sex. But somebody had better come up with something soon or the basic arrangements by which you learn hard-to-find truths about your world will collapse faster than a Hollywood marriage. Interested in Enron and other business rip-offs? How about the war on terrorism or the spread of nuclear weapons or some local scandal or half the other important stories you see on the front page? Once federal prosecutors and even civil claimants (like Wen Ho Lee) get in the habit of forcing reporters to cough up their sources, you’ll be dining on handouts and hokum.”
It’s not hopeless, Alter writes: “There is a way out — the Hoosier Solution. Sen. Richard Lugar and Rep. Mike Pence — both Republicans of Indiana (something in the water?) — have introduced a federal shield law. … A federal shield law won’t end the prosecutorial witch hunts, which are mostly a function of the current low status of the news media. But it will help keep the pipeline of important information open. And it beats withholding sex.”
Moving on to the story that will dominate the news cycle for some time, Louis Menard comments on Sandra Day O’Connor’s departure in the New Yorker. Menard points out that Supreme Court justices often break from the views of those who appointed them and issue opinions that get them removed from the White House’s Christmas card list. (Such a situation arose in the time of Oliver Wendell Holmes and Teddy Roosevelt.) While O’Connor may have sided with liberals on some occasions, Menard reminds us, “She was a conservative. What she was not was an ideologue. A lack of ideology was once an honored attribute in a judge. Judges weren’t supposed to have ideologies; they were not even supposed to have, except in the most anodyne sense, philosophies. They needed only something called ‘judicial temperament,’ a sort of inner homing device that allowed them to weigh each case on its own merits and, somehow, always come out right.”
And, seizing upon O’Connor’s comparison of the court to turtles, Menard instructs that — no matter who replaces O’Connor — this “judicial temperament” should be employed deliberately. He writes, “It’s the tweaks, the little nudges in one direction or another in sometimes obscure cases, that, over time, change the face of the law. The only way to be sure that the change is the change you want is to take it one case at a time.”
The New Republic’s Spencer Ackerman rounds out the report with an in-depth look at Iraqi militia groups. Here’s a quick fact you learn early on in the piece: The U.S. didn’t think it necessary to put someone in charge of disarming the warring factions in Iraq until February 2004. Now, over a year later, the man who took on the task, writes Ackerman, “laments that there is now practically ‘zero chance’ for removing the militias from Iraq’s political landscape.” This one’s worth printing out.