And then there's the matter of Novak, whose position in this case is a complete mystery. To date nobody knows whether Novak has been subpoenaed in the case, and, if he has, whether he's talked. There has been widespread speculation that Novak must have cut a deal with Fitzgerald -- otherwise, why would he be getting off scot-free while Miller and Cooper are facing jail? The columnist did not return a message left at his office Monday morning; he has not spoken to other reporters about the case either.

Beyond what it means for Miller and Cooper, observers were most upset that the court missed an opportunity to resolve a long-standing question of law: Do reporters enjoy a privilege allowing them to keep their discussions with sources secret from the federal government?

The main legal precedent in this area is Branzburg vs. Hayes, a 1972 Supreme Court decision that held that reporters must obey a grand jury subpoena to discuss their confidential sources. But as Ted Olson pointed out in a recent Op-Ed in the Wall Street Journal, the 5-4 Branzburg decision included a curious concurring opinion by Justice Lewis Powell that has led to conflicting lower court opinions on journalistic privilege ever since. Today, while there are few First Amendment absolutists who argue that reporters should always be shielded from government inquiry, many say that Branzburg should only apply when the reporter has direct knowledge of a serious crime that cannot be prosecuted in any other way besides compelling the journalist's disclosure.

Currently, nobody quite knows when journalists are shielded during federal inquiries; indeed, under today's law, the answer depends on geography, literally on where a case has been filed. That's because some federal appeals courts have ruled that reporters can keep their sources secret in all cases, while others have ruled that they can never keep them secret; and still others have split the difference on the question, saying that reporters can keep things secret in some instances and must testify in others. Reid Cox, an attorney at the Center for Individual Freedom, a libertarian nonprofit advocacy group that filed a brief on the reporters' behalf in the Supreme Court case, points out that if Miller had been subpoenaed in New York, where her paper is located, rather than in D.C., where Fitzgerald's grand jury sits, she would likely not have been forced to testify.

The law is confounded by the fact that every state except Wyoming grants reporters some kind of privilege from naming their sources in a state-court inquiry. Attorneys general in 34 states had pleaded with the Supreme Court to take the Miller-Cooper case because, according to them, the uncertainty at the federal level weakened their state laws. The Supreme Court's decision, Cox says, only confuses the state of privilege even further.

Some lawmakers in the Senate and the House responded to the court's decision with a call for legislation that would explicitly grant reporters a privilege. Rep. Mike Pence, a conservative Republican from Indiana who has co-authored the House version of the bill, said the court's decision underscored the need for Congress to act. "Chief among the rights enumerated in the Constitution is the freedom of the press," he said in a statement. "Compelling reporters to testify and, in particular, compelling them to reveal the identity of their confidential sources is a detriment to the public interest." Sen. Christopher Dodd, a Connecticut Democrat who co-authored the Senate's version, pointed out in a statement that the recent revelation of Deep Throat proves that the country benefits from a press that enjoys a privilege.

But reporters were skeptical that such a bill would pass. Burton Glass, the executive director of the Center for Investigative reporting, noted that the public doesn't really respect reporters as it did during Watergate. "There's a general climate where investigative reporters who in the past were seen as stewards of the public interest now are seen as the enemy or as part of the problem," he said. "If the public doesn't see the connection between protecting anonymous sources for reporters like Miller or Cooper and their own public interest, I think our democracy is weakened." And more and more, Glass says, he doesn't think the public makes that connection.

Neither Time not the Times would venture any guess as to the likelihood that Judge Hogan would lift his contempt charge at the next hearing. Bruce Sanford, though, said he was somewhat optimistic that the judge would reconsider. Lucy Dalglish, the executive director of the Reporters Committee for Freedom of the Press, said she held out a slim hope that Fitzgerald, the prosecutor, would change his mind.

But Judith Miller, who has previously said she's willing to go to jail, appeared resigned to her fate. In a statement released by her paper, she said, "I am extremely disappointed. Journalists simply cannot do their jobs without being able to commit to sources that they won't be identified. Such protection is critical to the free flow of information in a democracy."

In an e-mail, the investigative reporter Lowell Bergman, a friend of Miller's, said: "Judy made a point of drawing a very important line. We can only hope that her sacrifice -- she has already been enduring tremendous emotional pressure -- and the sacrifice to come will be recognized as an example of the kind of strength it takes to be a journalist."

Recent Stories