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Time Inc. gives up reporter's notes

BY TOM BRUNE | WASHINGTON BUREAU

July 1, 2005

WASHINGTON - Time Inc.'s decision yesterday to turn over one of its reporter's notes to the special prosecutor in a federal leak probe brought a rebuke from The New York Times amid criticism that the weekly has set a bad precedent.

Time's action also sets the stage for a showdown Wednesday in Washington, where U.S. District Judge Thomas Hogan must decide if he will drop contempt proceedings against Time reporter Matt Cooper.

Time made its announcement a day after Judith Miller of The New York Times and Cooper told Hogan, who found them in contempt for defying his order to reveal sources, that they would rather go to jail than talk.

Times publisher Arthur Sulzberger Jr. yesterday issued a statement saying he was "very disappointed."

He pointedly added that in 1978, his newspaper withstood similar pressures when a court held reporter Myron Farber and the Times Co. in contempt for protecting sources. Farber served 40 days and the company paid substantial fines, he said. The fines totaled $286,000.

Defending what he said was his decision, Time editor Norman Pearlstine denied he was reacting to a possible $1,000-a-day fine or corporate concerns.

"We are not above the law," he told CNN.

Pearlstine, a lawyer, said that Time's cooperation should mean Cooper won't have to testify and that it "certainly removes any justification for incarceration."

Special Prosecutor Patrick Fitzgerald, who subpoenaed the notes of Cooper and Miller in his investigation of who leaked the identity of covert CIA operative Valerie Plame in 2003, declined to comment.

Experts were uncertain whether Time's action took Cooper off the hook. Time told The Associated Press it intended to turn over information and e-mails that went over the company's computer system.

But Fitzgerald still may feel it necessary to call on Cooper to verify that the materials are actually his, said Jane Kirtley, director of the University of Minnesota's Silha Center for the Study of Media Ethics and Law.

She added, "This [decision by Time] is sending a really dangerous message to prosectors and judges all over the country, who will now see the efficacy of imposing a fine on the news corporations."

Pearlstine acknowledged his decision will have a chilling effect on newsgathering.

Reporters all over the country should be feeling uneasy, said Matthew Felling, media director of the non-profit Center for Media and Public Affairs.

"What Matt Cooper is doing is fighting for principle," said Felling, "on behalf of a magazine who just three years ago hailed whistleblowers as the person of the year."

Attorneys for Cooper and Miller have a deadline of the end of today for their final arguments against Hogan's contempt order and any sanction.

Fitzgerald will respond to those briefs and Time's action Tuesday in a filing.