Norman Pearlstine was not a happy camper. It was spring 2005, and for almost a year the editor-in-chief of Time Inc. had been wrestling with a pair of subpoenas issued by special counsel Patrick Fitzgerald seeking notes and testimony from Matthew Cooper, a reporter in Time magazine’s Washington bureau.

Fitzgerald, of course, was investigating who had disclosed the identity of Valerie Plame, an undercover CIA agent, to several prominent journalists. Time Inc. had already attempted to mollify Fitzgerald by allowing Cooper to offer limited testimony regarding his conversations with sources. But when Fitzgerald demanded additional material and testimony, Cooper refused, and the company backed his decision. Federal judge Thomas Hogan held both Cooper and Time Inc.—as well as the New York Times reporter Judith Miller, who had also declined to cooperate with Fitzgerald—in contempt of court. Many journalists treated Time and the Times as champions of the First Amendment.

That was certainly the mindset of the Times’s publisher, Arthur Sulzberger Jr. At a meeting with Pearlstine to discuss the case, Sulzberger produced a button that read FREE JUDY, FREE MATT, FREE PRESS, and proposed that ten thousand of them be distributed to staff members at their respective news organizations. Floyd Abrams, the noted First Amendment attorney who more than thirty years earlier had helped win a landmark decision for the Times in the Pentagon Papers case, represented both companies in court. To Pearlstine it was clear that Sulzberger saw the Plame fight as another historic test of the First Amendment.

But privately Pearlstine was having second thoughts. “Although we were ready to spend millions of dollars on litigation, I had to ask whether this strange case was the one on which we wanted to draw the line by ignoring a contempt order,” Pearlstine recalls in Off the Record....

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