Back Off, Courts: Matt Cooper's Legendary Father-in-Law on Protecting Sources

While all the attention in the unfolding Plame drama focuses on the living, it's not an exaggeration to say that—especially with regard to Time editor Norman Pearlstein's decision to fork over reporter Matt Cooper's notes to federal prosecutors, Cooper's disinclination to name his source, and Cooper's sourcing arrangement with Karl Rove—the spirit of Cooper's late father-in-law and legendary former Time editor Henry Grunwald at least hovers on the margins.

Certainly not a Democrat like his media consultant daughter Mandy—his post-Time career included a stint as Reagan's ambassador to Austria—Henry Grunwald didn't believe journalists should be completely exempt from revealing their sources. "Newsmen," he wrote in "The Press, the Courts, and the Country," a July 1979 Time essay, "should not ask the same standing that a lawyer or doctor has in dealing with clients or patients; lawyers and doctors after all are licensed, which is precisely what journalists will not and must not be."

Yet clearly he wasn't keen on the courts unduly interfering with reporters.

"The judiciary ought to reflect about what it is doing,"he wrote, referring to a series of legal decisions at the time aimed at compelling journalists to divulge privileged information. "In important respects, judges really are in the same boat as journalists, and ultimately in the service of the same ideals. People who cheer the courts' moves against the press are quite ready to condemn the courts in other areas. If the press is seen as having too much power, so are the courts, and then some. . . .

"Some institutions in our society simply should not be subject to the usual political processes. As for the courts, whatever their intentions may be, they are not the place to cure the undeniable failings of the press. Do recent court actions really make much of a difference to journalists in practice? Many judges doubt it, but let them try an experiment and take on a tough reporting assignment. Let them try to get complicated and controversial information from resisting sources and amid conflicting claims—without the judicial power to subpoena documents or witnesses—and have to testify under the disciplines of contempt or perjury. Let these judges then see how far they will get with their assignment if they are unable to promise an informant, who may be risking his job, assured confidentiality, or if they are hit by subpoenas, now said to be running at the rate of 100-plus a year, many of these mere 'fishing expeditions.' "

 
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