BROOKE GLADSTONE: This week, TV reporter Jim Taricani in Providence, Rhode Island received a sentence of six months home confinement for refusing to name a source. Also this week, Time magazine reporter Matt Cooper and New York Times reporter Judy Miller appeared in court, also for refusing to tell the name of a source. They each face up to 18 months in jail. Now prosecutors say that Cooper and Miller are obligated to tell investigators who leaked them the name of CIA agent Valerie Plame, because that leaker broke a federal law. They don't have any protection, because in the 1970s, the Supreme Court decided in Branzburg v Hayes that reporters are not like attorneys or spouses. They have no federal shield against testifying in criminal cases. Many states disagree and have passed shield laws to protect journalists. Law professor Geoffrey Stone supports the creation of a federal shield for reporters, but in its absence, he says they should not place themselves above the law. Geoff, welcome to OTM.

GEOFFREY STONE: I'm delighted to be here.

BROOKE GLADSTONE: So you say it's a matter of journalists behaving according to the shield rules that they wish were in place rather than according to the rules that are in place.

GEOFFREY STONE: Precisely right.

BROOKE GLADSTONE: But why oughtn't they go ahead and promise confidentiality if they're prepared to provide it?

GEOFFREY STONE: Well, we do not live in a society where individuals ordinarily ought to violate the law simply because they think that they have good reasons for doing so.

BROOKE GLADSTONE: So how do you think Matthew Cooper or Judith Miller should have played their cards?

GEOFFREY STONE: They should have promised their sources that they would protect confidentiality to the extent allowed by law, and that they should act in accord with the law when they lose as well as when they win. And thus far, on this issue, in 19 states and in the federal court system, journalists haven't been able to persuade legislators or courts that there is a legal basis for a privilege, and as long as that remains the state of the law, they should act accordingly.

BROOKE GLADSTONE: Right. So, the Supreme Court says reporters don't have an automatic privilege under the Constitution, but 31 states say but we're going to extend that privilege to journalists anyway, just as it's been extended to priests and psychologists and so forth.

GEOFFREY STONE: And attorneys, right.

BROOKE GLADSTONE: And attorneys. Now, what are the impediments now against a federal shield law?

GEOFFREY STONE: Those who have proposed it have essentially made the argument that unlike the attorney-client situation, unlike the doctor-patient situation, that the source-journalist relationship is one in which most people, in fact, are willing to tell the journalist whatever it is they want the journalist to know with or without a promise of confidentiality. And therefore the actual amount of information that dries up in the absence of a privilege is negligible. If you look at the 19 states that don't have privileges, it's not at all obvious that the reporters there do any less good a job than in the 31 states in which there are privileges.

BROOKE GLADSTONE: Hm.

GEOFFREY STONE: Again, I don't support that argument, but that's the argument that's made, and it's not an implausible argument.

BROOKE GLADSTONE: I've read that one reason why a federal shield law hasn't passed is because even some journalists are divided about it.

GEOFFREY STONE: It, it does create some serious problems. One is, of course, the, the concern that many people have about the unduly extensive use of confidential sources on the part of journalists, and that may not be a healthy thing in journalism. And the other point, of course, is a much more troubling one to me, which is: how do you define who's eligible for the privilege? Is a student reporter on a student newspaper eligible for the privilege? Is someone who runs a blog eligible? Who is a journalist for this purpose? That's actually a very serious question, and also a very dangerous one, because as a general matter, we have shunned the idea of licensing journalists. I mean is, is everybody who keeps a diary a journalist? Is everybody who writes letters a journalist?

BROOKE GLADSTONE: Yikes. Let's say they did pass a federal shield law. Would this have protected, should this have protected people like Matthew Cooper and Judith Miller?

GEOFFREY STONE: Actually, I think not, and here's the reason. The privilege, when it does exist, belongs to the person who is making the communication. That's particularly relevant in the situation involving Valerie Plame, because the reason for giving the privilege is to encourage sources to communicate information that is of public interest that they may otherwise be reluctant to communicate. But in this situation, what we have is --allegedly -- White House officials outing a CIA agent in order to serve partisan political purposes in violation of a clear federal statute that makes it a crime for a government official to reveal that information. This is not a whistleblowing case.

BROOKE GLADSTONE: So Matthew Cooper, who merely repeated Novak's charges and attributed them to Novak, and Judith Miller who wrote nothing at all about Valerie Plame, were prosecuted because they wouldn't reveal their sources. Meanwhile, Bob Novak, who went ahead and disclosed the information, is entirely absent from this drama so far. We don't know what happened to him. Why hasn't he been brought before the bar?

GEOFFREY STONE: Well, the key thing you said is we don't know. I'm quite confident that Bob Novak has been questioned by the grand jury. Patrick Fitzgerald, the prosecutor here, is a tough, hardnosed prosecutor. I have no doubt that, when all the dust settles, we will find out what has happened with Bob Novak and that his situation will not be a terribly happy one.

BROOKE GLADSTONE: Well, what do you think happened with Bob Novak? What are the options? One option, obviously, is that he revealed the source, in which case, why are these other reporters being prosecuted, and the other is that he hasn't revealed the source, in which case, why isn't he being charged?

GEOFFREY STONE: Well, if he did reveal the source, then the prosecutor still might want additional information that corroborates it, because in a criminal prosecution, you do need to prove guilt beyond a reasonable doubt, and so it would make perfect sense for Fitzgerald to want the additional information. Other alternative is that Novak did not disclose the information, did not answer the questions, not by asserting the First Amendment as Miller and Cooper did, but instead by asserting the privilege against self-incrimination, saying that he believes he could be prosecuted for having publicly disclosed the information, and there's no question that he then does have a privilege under the Constitution to refuse to answer those questions, unless the prosecutor decides to grant him immunity.

BROOKE GLADSTONE: That's kind of ironic, don't you think? If he committed a crime, he has the right to protect himself. Judith Miller and Matthew Cooper, who did not commit a crime, have no such right.

GEOFFREY STONE: Well Judith Miller and Matthew Cooper will have committed a crime when they refuse to disclose the information, and again, you have to look at this when all the dust settles, not right now, which is in the middle of the process.

BROOKE GLADSTONE: Geoff, thank you so much.

GEOFFREY STONE: My pleasure.

BROOKE GLADSTONE: Geoffrey Stone is author of Perilous Times: Free Speech in Wartime.
BROOKE GLADSTONE: We're joined now by one of the reporters in question, Time magazine's Matthew Cooper. Matt, welcome to the show.

MATTHEW COOPER: Thanks, Brooke.

BROOKE GLADSTONE: We spoke to law professor and author Geoffrey Stone, who's studied these issues closely, and he said the presumption has always been that the privilege is to protect the source, but if the source has committed a crime and his information does not advance the public good, then there's no need to extend a privilege like this.

MATTHEW COOPER: Well, the thing is, I mean for, for reporters, just as a practical question, one cannot get in the habit of kind of picking and choosing which confidences to honor and which ones you'll dispense with, because you may not like the motivations of your sources. If I render a promise, I'm going to do my best to keep it, and that's what we're trying to do in this case.

BROOKE GLADSTONE: How do you weigh your journalistic principles against the need to find out who in the White House committed what is a serious crime?

MATTHEW COOPER: Look, it's in the nature of these privileges that there are times when they will cut into the ability of law enforcement to do what they want. For instance, right now, as Floyd Abrams, my First Amendment lawyer has said, he knows the names of these sources. He has, you know, in order to do his job defending me and Judith Miller of the New York Times, he knows the names of these sources now. No judge on earth, no prosecutor in the United States would now go to Abrams, subpoena him, threaten him with jail and demand that he divulge the sources. We're willing to accept those limits on questioning of lawyers, because we believe in the attorney-client privilege. We're making a similar argument about journalism, and I, I readily acknowledge that some crimes may not be prosecuted if this privilege is upheld. But that is a social cost that I think the country should be willing to pay in order for journalists to be able to do their job.

BROOKE GLADSTONE: You know, the New York Times quotes you saying "I'm hoping the federal government is not going to put me in a position where I have to tell my 6 year old son that I'm going away." Did the federal government put you in this position? You appear to have offered a source confidentiality that you couldn't guarantee under the current laws. You had some control over that.

MATTHEW COOPER: Well, Brooke, as, as a practical matter, you know, if you're a reporter, when you're just talking with somebody on background or off the record, you don't necessarily know what they're about to say. That's part of what we're arguing. It would be impossible for journalists to be able to do interviews and, you know, constantly be re-assessing well, can I grant it here, is this, is this a civil privilege, a criminal case? It's just not the way journalism works. I readily acknowledge that I've offered to protect the confidentiality of my source and that that has landed me in legal hot water.

BROOKE GLADSTONE: Well, thanks a lot.

MATTHEW COOPER: Thanks, Brooke.

BROOKE GLADSTONE: Matt Cooper is the White House correspondent for Time magazine. [MUSIC]

BOB GARFIELD: Coming up, case studies in good and bad reporting, and ways to control the press.

BROOKE GLADSTONE: This is On the Media, from NPR.