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Confidential Sources on Trial
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A Case of Political Descent
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Case Closed
 
Confidential Sources on Trial
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While at Penn Law, Pearlstine spent a summer interning for professor Anthony G. Amsterdam. Amsterdam be came one of the lawyers for Earl Caldwell of the New York Times, who had refused to comply with F.B.I. requests for his notes. Caldwell's case was later consolidated with another case and Branzburg v. Hayes before the U.S. Supreme Court. In that landmark 1972 decision, the only instance to date that the high court has considered the issue of journalistic privilege, the justices narrowly ruled that the First Amendment does not protect reporters from having to testify before a grand jury. Because of his interest in Amsterdam's work, Pearlstine was familiar with Branzburg and its implications for the use of confidential sources.

“When (Judge) Hogan relied on Branzburg to say the First Amendment offers no protection for confidential sources, I realized the case was pretty serious,” he says. Time Inc. appealed the ruling, but the D.C. Court of Appeals ruled 3-0 against the company. While awaiting the Supreme Court's decision on whether it would take the case, it became increasingly clear to Pearlstine that, with a unanimous appeals court ruling and no competing circuit court decisions to cite as examples, Time Inc.'s prospects of a hear ing before the high court were remote.

“A few weeks before the court denied cert, on June 27 of 2005, I started thinking more seriously about the conse quences of their letting the D.C. circuit's decision stand,” he recalls. “And whereas my original thought was just almost a knee-jerk one that says that the reporter does the tie, the corporation pays the fine, I realized that this case was some what different from other contempt holdings, even those involving confidential sources.”
 
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