Sarbanes-Oxley vs. the free press: how the government used business regulations to strong-arm the media.

• Author: Berlau, John

BACK IN JUNE, when New Fork Times reporter Judith Miller was about to go to jail on contempt charges for refusing to testify about her anonymous sources, she and the Times had company in legal hot water: Matthew Cooper and his bosses at Time magazine. Both journalists were subpoenaed by prosecutor Patrick Fitzgerald, and both were alternately praised as First Amendment heroes and vilified as arrogant media elitists. But on June 9, in a move that took many by surprise, Time Inc. surrendered the magazine's notes to Fitzgerald and revealed its anonymous source in the Valerie Plame/Karl Rove/Joe Wilson/Robert Novak saga.

That much is well-known. What isn't widely understood is the role that may have been played by a law that most people don't associate with free press issues, the Sarbanes-Oxley Act, passed in the wake of the Enron scandal, along with related crackdowns on corporations.

Much of the reaction to Cooper's capitulation and Miller's imprisonment contrasted the two news organizations in terms of their editorial gumption. Virtually nothing was said about the growth in prosecutorial power in recent decades, even though a bipartisan journalistic consensus from Salon to The Wall Street Journal's editorial page argued that Fitzgerald had stepped way over the line in his treatment of the news organizations. Amazingly, even as Fitzgerald let Miller languish in jail for months, Time Inc. supplanted him as the villain in many media commentaries.

In taking on Time Inc., Fitzgerald seemed to take a page from New York's anti-corporate crusader of an attorney general, Eliot Spitzer. Fitzgerald came up with novel ways to implicitly and explicitly threaten all of Time's executives and corporate directors with steep fines and/or jail time. He tapped into a populist theme in his courtroom arguments and briefs, arguing that Time's officers and board members could individually be held responsible for the corporate "crime" of withholding documents. "The theory that he cited was, 'How could a board possibly permit violation of a court order?'" says Floyd Abrams, the respected First Amendment attorney who represented Miller as well as Time and Cooper at various points in the case. He certainly suggested there could be criminal sanctions imposed on individuals in senior management if they defied the court order."

On June 28, the day after the Supreme Court refused to hear an appeal of the circuit court decision against Time Inc. and to revisit whether the First Amendment gives reporters any privilege to shield sources, Fitzgerald filed...