The Times and Time Reporters to go to the Supremes

The latest turn in the First Amendment martyrdom of Time’s Matthew Cooper and The New York Times’ Judith Miller was underdramatic. On Tuesday, the United States Court of Appeals for the District of Columbia posted an 83-page decision online rejecting Mr. Cooper and Ms. Miller’s claims that they were not bound to give up confidential sources to a grand jury. The failed appeal left the two reporters on the hook for contempt-for refusing to cooperate with the investigation into the leaking of CIA agent Valerie Plame’s identity to the press-and one step closer to jail, though still free pending their next appeal.

Mr. Cooper got a call from one of his lawyers with the bad news, then tried to have a look at the decision. “And then I couldn’t get it off the Web for a while,” he said. ” …. It wasn’t an especially glorious way to find out.”

Times publisher Arthur Sulzberger Jr. sounded the trumpet in response to the bad news. The Times, he wrote in a public statement, “will continue to fight for the ability of journalists to provide the people of this nation with the essential information they need to evaluate issues affecting our country and the world.”

Inside the newsroom, Mr. Sulzberger’s fanfare was even more elaborate: “The consequences of this landmark case are almost impossible to overestimate,” he wrote in an internal memo to the staff. “When we consider the many complex issues that we face at home and abroad, it is hard to imagine a more inopportune moment to restrain the free flow of information …. When you thoughtfully consider the innumerable ramifications of this decision, it becomes absolutely apparent that they are a direct threat to our newspaper, our Company, our profession and our democratic form of government.”

But the judges had some ringing messages of their own. In their unanimous opinion, the three declared that the mighty newspaper and newsweekly were helpless in the face of the precedent set by the Supreme Court’s 1972 ruling in Branzburg v. Hayes. “The Highest Court has spoken and never revisited the question,” the appeals-court judges wrote. “Without doubt, that is the end of the matter.”

Branzburg, a 5-4 decision, is a grim piece of law for reporters who think their job carries automatic liberties with it. Essentially, it repudiates reporters’ belief that they are free to cover whatever happens among the demimonde. The case bundled four separate contempt claims-two from a reporter who had witnessed drug dealers making hashish and users smoking marijuana, and two involving reporters who’d sat in on Black Panther meetings. By a 5-4 margin, the Supreme Court concluded that the grand jury had the power to force the reporters to yield their sources.

Essentially, it meant that reporters who witness criminal activity could be dragooned into serving as government investigators. And what goes for covering black nationalists goes for covering the unsavory elements in the West Wing.

“In language as relevant to the alleged illegal disclosure of the identity of covert agents as it was to the alleged illegal processing of hashish,” the appeals court wrote Tuesday, “the Court stated that it could not ‘seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about a crime than to do something about it.’”

That principle, the Supreme Court added-and the appeals court affirmed Tuesday-applies even to sources with secondhand knowledge of criminal activity.

Mr. Cooper and Ms. Miller’s lawyers had staked some of their hopes on a concurring opinion by Justice Lewis Powell, the deciding vote in the 1972 case, who had emphasized that the ruling in Branzburg was a limited one. The appeals court swatted down that line of reasoning.

“[W]hatever Justice Powell specifically intended, he joined the majority,” the Tuesday decision said. “Not only did he join the majority in name, but because of his joinder with the rest of a majority, the Court reached a result that rejected First Amendment privilege not to testify before the grand jury for reporters situated precisely like those in the present case.”

Message: If Branzburg is going to be unraveled, the Supreme Court itself will probably have to be the one to unravel it.

“I really kept an open mind about what they’d decide,” Mr. Cooper said. “That said, it’s obviously disappointing.”

Like many reporters, Mr. Cooper said, he’d been unfamiliar with Branzburg before he ran afoul of it. As Mr. Sulzberger had, he expressed his hope that a federal shield law, currently under consideration by Congress, would make the old ruling moot for future reporters. A majority of states, he noted, already have laws to protect reporters from having to give up their sources.

“This privilege, which we see as essential for journalists to do their jobs, is not something far out and exotic,” Mr. Cooper said.

When Seed magazine hit New York in 2002, then 21-year-old founder Adam Bly was prone to evangelize about building up his new-wave science title’s brand. The glossy, which had sprouted a year earlier in Montreal, gave Mr. Bly-a McGill University dropout who had studied at Canada’s National Research Council at age 16-plenty to preach about: Its long-form science pieces were coupled with visual spreads that owed more to Prada than to Popular Science. The D.J.-fueled launch party was at the Chelsea nightclub Eyebeam Atelier; the roster of writers soon grew to include Pulitzer winners Laurie Garrett and Jared Diamond, and Atlantic Monthly correspondent Ellen Ruppel Shell.

What Mr. Bly, who is also the magazine’s editor in chief, has had trouble with lately has been putting out the actual magazine. Seed attracted high-profile advertisers, including Skyy vodka, Johnnie Walker Black, Ford and Volkswagen, and won the 2004 Utne Independent Press Award for its science and technology coverage. But the magazine only published four times last year and hasn’t brought out a new issue since September.

Mr. Bly said that he has recently secured new investor capital that should put the magazine on solid financial footing. “We have begun to close a major round of financing that we have been working on for several months,” Mr. Bly said in a recent phone conversation.

“I think from Day 1 when you launch an independent magazine, your chances of success are such that you’re heading for the dustbin,” Mr. Bly continued. “From Day 1, you’re short on capital and you’re doing everything you can to navigate a complex industry-and certainly an industry that doesn’t favor independent magazines that are trying to do something different.”

Mr. Bly declined to comment on the identity of his investors. Sources familiar with the proceedings said the Walnut Group, a New York-and-Cincinnati-based venture-capital firm, is among the investors considering a deal.

“We’re still looking at [ Seed],” said Nicole Methena, an associate with the Walnut Group. “We don’t have a time frame right now. We’re working with the company …. There’s been no investment decision by Walnut at this point to make an investment, or not make it.”

Mr. Bly wouldn’t comment on the Walnut Group, but he said that when the deal closes, it will be an “eight-figure round” from “a mix of institutional and private [investors],” and that the deal should be complete by the end of the month. That’s the same time, Mr. Bly said, that the winter issue-on hold since December-will hit newsstands, and the magazine will finish bringing its functions, including the printing, down from Montreal.

For Seed’s freelancers, the cash infusion will be welcome news. Last week, the magazine began mailing checks out to a group of freelance writers who had spent months battling Seed over delinquent payments. The freelancers said Seed failed to furnish checks for pieces that had closed as far back as last spring-even while assigning new pieces and bringing on new writers-and that the magazine stonewalled their efforts to get paid.

“As a science writer, I’d love nothing more than this magazine to succeed,” said Rebecca Skloot, who writes regularly for The New York Times Magazine and Popular Science. “In 10 years as a freelance writer, I have never had payment problems like the ones I’m having with Seed.” Ms. Skloot said she finally received a check on Feb. 12. “I don’t consider myself paid,” she added, “until it clears the bank.”

After Seed sent out an e-mail advertisement seeking writers to the 2,300 members of the National Association of Science Writers this past fall, complaints about the ad from unpaid NASW members prompted the association to announce that it was investigating Seed’s payment history.

The American Society of Journalists and Authors, meanwhile, had put Seed on its warning list and included the magazine in its Contracts Watch newsletter, circulated to more than 15,000 writers.

” Seed is an exciting new magazine, but it is unconscionable for a magazine not to pay writers in a timely manner,” ASJA executive director Brett Harvey said in an e-mail.

In December, ASJA delivered a registered letter to Seed on behalf of five writers who claimed to be owed a combined $25,000. “All of those payments are past due, some five months overdue,” wrote the organization’s grievance committee chair, Jim Morrison. ” … We understand that while you are unable to pay writers, you continue to solicit queries and assign stories to writers unaware of your problems. That is outrageous.”

Mr. Bly responded on Dec. 23 in an e-mail to ASJA, writing, “We are a new publication and as such, we face periodic cash flow strains that make it impossible to issue any payments.”

Writers who’d been wrangling with Seed about overdue payments received an e-mail last week from the magazine that said checks were being issued. On Feb. 12, freelancer Dan Ferber, a member of the five writers being represented by the ASJA, received a check for $1,000.

“In seven years of full-time freelancing, I never had to wait so long to get paid and never had this much trouble,” he said.

Another writer said he’d received payment via wire transfer. Mr. Bly said all remaining payments to writers would be complete by the end of the month. Laura van Dam, the current NASW president, said Seed had issued her a statement saying all NASW members had been paid except one. On Feb. 15, the NASW board took up the Seed issue at its annual board meeting held at the National Academy of Sciences in Washington, D.C.

“Freelancers are being paid …. We actually started that cycle this week, so most of them will be repaid by the end of this month,” Mr. Bly said.

“This is an industry, unfortunately, where there are louder freelancers than others,” Mr. Bly said. “So, you know, you might be hearing from the louder ones.”

-Gabriel Sherman