Time Inc. Yields to Judge in Anonymous Source Case

The publisher of Time magazine, declaring it had no choice but to obey the law, said Thursday that it would turn over internal documents to a federal prosecutor in the hope that one of its reporters would not have to go to jail for refusing to reveal his sources in a Justice Department investigation.

Time Inc.’s decision, made by editor in chief Norman Pearlstine, was seen as a major setback for journalists in what has become a rare and dramatic showdown between the government and press over protecting confidential sources.

“It’s pretty shocking,” David Halberstam, a Pulitzer Prize-winning reporter and author, said of Time Inc.’s decision. “I don’t think the country realizes what’s at stake when the government starts going after reporters.”

Time Inc., the publishing arm of media giant Time Warner Inc., acted a day after a federal judge threatened it with what he called a “very large” fine if it did not comply with a court order to turn over records sought in an investigation into how the name of a covert CIA operative ended up in a syndicated newspaper column written by Robert Novak.

Time Inc. is expected to relinquish the documents today.

Pearlstine’s decision was criticized by media observers and the other news company involved in the case, the New York Times Co.

Chairman Arthur Sulzberger Jr. noted that the New York Times had refused to comply with a similar court order in 1978, paid heavy fines and saw its reporter jailed for 40 days.

“We are deeply disappointed by Time Inc.’s decision to deliver the subpoenaed records,” Sulzberger said in a statement.

Time Inc.’s decision raised the possibility that the government’s investigation was close to a resolution. Special prosecutor Patrick J. Fitzgerald has said the only thing holding up the inquiry was the refusal of the reporters to cooperate. He had no comment Thursday.

Time and its reporter, Matthew Cooper, had been held in contempt for refusing to cooperate in the investigation into the revealing of CIA agent Valerie Plame’s identity. Judith Miller of the New York Times was also found in contempt, but her newspaper was not. Cooper and Miller refused to reveal their sources in their investigations of Novak’s naming of Plame.

The U.S. Supreme Court on Monday rejected the reporters’ final appeal. On Wednesday, U.S. District Judge Thomas F. Hogan told the journalists that “the time has come” -- he gave them a week to comply with his order to meet the prosecutor’s demands for information or go to jail. They face up to four months behind bars.

In a statement, Pearlstine said he had reluctantly decided to comply.

“In declining to review the important issues presented by this case, we believe that the Supreme Court has limited 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. It may also encourage excesses by overzealous prosecutors,” his statement said.

“Despite these concerns, Time Inc. shall deliver the subpoenaed records to the Special Counsel in accordance with its duties under the law,” it continued. “The same Constitution that protects the freedom of the press requires obedience to final decisions of the courts and respect for their rulings and judgments. That Time Inc. strongly disagrees with the courts provides no immunity.”

Pearlstine added that he believed the decision “obviates the need for Matt Cooper to testify and certainly removes any justification for incarceration.”

Cooper, a Time magazine White House correspondent, indicated through his lawyer in court Wednesday that he personally would not supply notes or information identifying his sources to Fitzgerald and that he was prepared to go to jail.

It was not clear whether Time Inc.’s cooperation would affect Miller’s case. Some lawyers close to the matter suggested that the court might treat Miller more harshly now that Time Inc. had acquiesced. An attorney for Miller, Robert Bennett, said he was “hopeful that Time’s disclosure will eliminate the need for Judy’s testimony and that this crisis can be ended.”

Time Inc.’s move drew criticism from some media watchers, who said that by bending to the courts and the Justice Department under threat of a stiff fine, the magazine’s publisher had put money over principle.

“It is a corporate response,” said Jane Kirtley, professor of media ethics and law at the University of Minnesota.

“It sends a message to judges and prosecutors seeking journalists’ testimony that a fine may be a very effective way to overcome the scruples of a news organization.” But Pearlstine said in an interview that money had nothing to do with it.

“Given the size of Time Warner, the fine would have to be of a level where it would frankly violate due process before it would make a material difference in the company,” he said.

Pearlstine said the decision was “mine and mine alone.” He said he notified Time Warner Chief Executive Richard Parsons by phone Wednesday night.

The Supreme Court, Pearlstine said, ruled in 1972 that journalists had no special status under the law to refuse to testify when called before a federal grand jury. Time and other news organizations had hoped the justices might reexamine that ruling in the current case.

“From my own personal analysis of the situation,” Pearlstine said, emerged “a firm conviction that the journalistic integrity and credibility of Time Inc. was better served by following the law” rather than trying to assert that journalists had a right that put them above the law.

Alex Jones, director of the Joan Shorenstein Center on the Press, Politics and Public Policy at Harvard University, said: “A public corporation that defies this kind of ruling is putting itself in an extremely dangerous position, because the judge could have imposed truly ruinous fines.

“There are limits within the law,” Jones said, “and even the strongest advocates of press freedom respect them.”

He noted that during the 1971 Pentagon Papers case, the New York Times, when ordered by a federal court, agreed to stop publishing classified documents obtained from a confidential source.

The New York Times was not held in contempt in the current case and was not facing a fine, because officials at the paper said they possessed no documents that bore on the inquiry.

Time Inc. has declined to describe in detail the documents it was turning over and whether they included the notes Fitzgerald was seeking from Cooper. Pearlstine said they included internal company documents that Time Inc. considered its property rather than the reporter’s.

Sulzberger said the New York Times was prepared to stand behind Miller and support her “during this difficult time.”

He said the paper had faced similar pressures in 1978, when reporter Myron Farber and the Times Co. were held in contempt for refusing to provide names of confidential sources in a series of stories.

Pearlstine rejected that comparison, saying: “The fact that they were going to a New Jersey state case from 1978 to find an analogy, I think, just reflects the fact that they are not a defendant in this case.”

Fitzgerald has been investigating possible criminal action in the wake of a July 14, 2003, column by Novak. In it, Novak revealed Plame’s identity. She is married to Joseph C. Wilson IV, a former envoy who had accused the Bush administration of making bogus claims about Iraq’s nuclear intentions.

It is a federal crime to knowingly expose the identity of a covert operative. Some have alleged that the White House leaked the information to numerous journalists, including Novak. Each such disclosure could be considered a violation of federal law.

Novak has declined to say whether he has spoken to Fitzgerald or revealed his sources.

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Times staff writer Josh Getlin in New York contributed to this report.