BROOKE GLADSTONE: From WNYC in New York, this is NPR's On the Media. I'm Brooke Gladstone.
BOB GARFIELD: And I'm Bob Garfield.
CORRESPONDENT: On World News Tonight the dramatic case of a reporter who took a stand. She will go to jail for--
CORRESPONDENT: To jail! A Federal judge orders a New York Times reporter to prison for refusing for refusing to reveal her source in the leak of an undercover CIA officer--
CORRESPONDENT: Tonight Judith Miller is in jail and Matthew Cooper is not. That's the simple short version of a story that is anything but concise or clear.
BOB GARFIELD: Last week Time Magazine, deciding it wasn't above the law, surrendered reporter Matthew Cooper's notes to Special Prosecutor Patrick Fitzgerald who is pursuing the administration officials who leaked the name of CIA operatitive Valerie Plame. Last weekend MS-NBC political analyst Lawrence O'Donnell revealed on a TV chat show that Cooper's notes would finger Deputy Chief of Staff Carl Rove. On Tuesday Newsweek reported that Rove's lawyer, Robert Luskin, confirmed that Rove had talked with Cooper. But Luskin told Newsweek that Rove, "never knowingly disclosed classified information or told any reporter that Plame worked for the CIA." So many questions. Rove never knowingly disclosed classified information? But how about unknowingly? And wasn't there more than one senior administration source, as the prosecutor shifted his focus from finding the leaker to charging those who may have committed perjury during the investigation. On Wednesday New York Times reporter Judith Miller went to jail. And Cooper agreed to testify because his source told him he should, So Miller's in the clink and Rove's in the hotseat, as political junkies wait to see if his trademark game of plausible deniability will keep him out of the dock.
BROOKE GLADSTONE: When Matt Cooper of Time Magazine stood before his colleagues in the press to explain that he had agreed to talk to the grand jury only because his source had personally urged him to do so, he also expressed deep regret that either of them had been put in that position to begin with. He noted that 49 states have protections for journalists, and most of them have explicit shield laws.
MATT COOPER: There is no federal shield law, and that's why we find ourselves here today. And I hope Congress which is considering a federal shield law, sponsored by Republicans and Democrats will consider it so that we don't have to go through another day like this today.
BROOKE GLADSTONE: We're joined now by University of Chicago law professor Geoffrey Stone. Geoff, last week on the show you were unequivocal in your support of shield laws to protect journalists from having to reveal their sources unnecessarily. Now, as we just heard, Cooper suggested that he and Judith Miller wouldn't be in this situation if such a law were on the books. And you don't agree with that, do you?
GEOFFREY STONE: Well, there are two types of limitations on the scope of existing shield laws, and they vary from state to state. One of them is whether a shield law should ever cover a situation in which a source is violating the law in making the leak itself, particularly where the information is not of any public significance. The second issue is that in many jurisdictions the shields effectively can be overcome if the prosecutor can demonstrate that there is a substantial need for the information in order to serve an overriding criminal justice purpose. And in this case the federal judge and the Court of Appeals all found the prosecutor Pat Fitzgerald had made such a showing.
BROOKE GLADSTONE: Ah but Geoff, the New York Times said in its editorial Thursday, and I quote, "Mr. Fitzgerald's attempts to interfere with the rights of a free press while refusing to disclose his reasons for doing so, when he can't even say whether a crime has been committed, have exhibited neither reverence nor cautious circumspection. Now, isn't this precisely what some past members of the Supreme Court have warned against, using the media as an investigative arm of government?
GEOFFREY STONE: Well, Fitzgerald has apparently disclosed all of this information to both the federal judge and the Court of Appeals. It just hasn't been disclosed to the New York Times or to the public. And that's common in grand jury proceedings. That may be frustrating but it's standard practice.
BROOKE GLADSTONE: It also means there's no real check on the court if the court is abusing its privilege.
BROOKE GLADSTONE: Ultimately all of this information will be made public. And there will be an opportunity to review these situations. But the problem here, remember, is not or shouldn't be a distrust of the court in this circumstance; it's reasonable to think that perhaps the prosecutor is being overly aggressive. But that's why the court is there, to oversee that.
BROOKE GLADSTONE: Let's go back to the federal shield law now floating through Congress. It's called the Free Speech Protection Act of 2005. Do you know what it would cover and under what circumstances?
GEOFFREY STONE: That bill, as I understand it, would provide absolute protection to the identity of a source and qualified protection for other information in the possession of a reporter. So in a situation where a journalist had been told that a bomb will go off in a certain building in three hours, the privilege would not bar the journalist from giving that information to the police, but it would bar the government from demanding that the journalist reveal the source of that information.
BROOKE GLADSTONE: And is this the kind of legislation that you have in mind when you envision a national shield law?
GEOFFREY STONE: Yes. It's a travesty that the Congress has not enacted a journalist source privilege. Forty-nine states through either legislation or judicial action have recognized some form of a shield. And there's simply no excuse for Congress not to have done so.
BROOKE GLADSTONE: But you say this is an absolute protection. Does that mean journalists wouldn't have to reveal their sources under any circumstances?
GEOFFREY STONE: According to this draft, the answer to that is yes.
BROOKE GLADSTONE: And you think that's okay?
GEOFFREY STONE: I actually would have a qualification for leaks that are criminal, and where the information is not of any public value. But short of that, yes I do think it's okay.
BROOKE GLADSTONE: Last week you said that after the Supreme Court ruled Judith Miller should have turned over her notes and revealed the name of her source. And when I suggested that this was an act of civil disobedience, you said it didn't apply. Why don't you think this was an act of civil disobedience?
GEOFFREY STONE: Civil disobedience, in my view, is disobeying the law when two conditions exist. The first is that there are extraordinarily important values at stake, and second is where the legal system, because of its corruptness, is unable or unwilling to address that extraordinarily important set of values. In this instance, I think the former issue may be there, but I don't think the latter is. What we have here is simply a disagreement between the Supreme Court, on the one hand, and Judith Miller, on the other, about what American public policy should be. One of the mistakes reporters have made in talking about this is thinking of it as a reporter's privilege, as opposed to a journalist's source privilege. This is not about protecting Judith Miller, it's about protecting her source. And this source is not a source at all. This source is a criminal who's attempting to use the media to commit a criminal offense.
BROOKE GLADSTONE: Geoff, once again, thanks for much for coming on.
GEOFFREY STONE: My pleasure always, Brooke.
BROOKE GLADSTONE: Geoffrey Stone is a University of Chicago law professor and author of "Perilous Times: Free Speech in Wartime."