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IN AN APPEARANCE last week on CNN’s NewsNight, Cooper’s lawyer, the noted First Amendment specialist Floyd Abrams, said that "under the First Amendment of the Constitution, reporters have a right not to reveal their sources, because that’s a part of newsgathering, without which it would be impossible to find the news which they present to the public." Under prodding from host Aaron Brown, though, Abrams allowed that his position was "unsettled law."

Indeed. In 1972 the Supreme Court heard four cases that to this day define — or fail to define — whether and under what circumstances a reporter can protect his or her sources. Two of the cases involved a reporter for the Louisville Courier-Journal named Paul Branzburg, whose articles about unnamed young men turning marijuana into hashish and selling illegal drugs had excited the imaginations of local prosecutors. In addition, reporters for a New Bedford, Massachusetts, television station and the New York Times had separately reported stories involving anonymous sources about possible illegal activities on the part of the Black Panthers. The court’s decision, known as Branzburg v. Hayes, is ambiguous enough that, 32 years later, it continues to be cited to support any and all positions.

In a five-to-four decision, the court ruled against the journalists, finding that they had no First Amendment right to protect their sources, and that they would have to testify before the grand jury just as any other citizen would. Justice Byron White wrote, "From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished." In fact, from turn-of-the-century muckrakers such as Ida Tarbell and Upton Sinclair to Vietnam War correspondents such as David Halberstam and Seymour Hersh, investigative journalists somehow managed to do important work without claiming a constitutional right to protect their sources. In the 1970s, though, such matters as the Pentagon Papers and Watergate brought new attention to governmental whistle-blowers, and to news media’s need to protect their identities.

White’s opinion, at least, had the virtue of being unambiguous. But one of the five justices who voted with him in the majority, Lewis Powell, wrote a concurring opinion stating that "a proper balance" must be struck "between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." That balance, Powell added, must be evaluated on "a case-by-case basis." The four dissenting justices were already of the view that journalists should enjoy at least some limited privilege in protecting confidential sources, and Powell’s concurring opinion seemed to suggest that he agreed with them on principle.

The practical effect of the Branzburg decision was that many states and the federal government developed guidelines that must be followed before a prosecutor can demand that a journalist give up his or her confidential sources. Those guidelines generally involve demonstrating that the information being sought is vital to an ongoing criminal investigation, and that other means of obtaining that information have been tried and have failed. About three dozen states have so-called shield laws aimed at protecting reporters, but none of those laws is absolute. Massachusetts does not have such a law. Rhode Island does, but it’s never been tested, and in any case does not offer any protection to Jim Taricani, since the leak of the surveillance tape is being investigated by federal rather than state authorities. Though shield laws sound good in theory, they rarely offer a journalist — or, for that matter, a source — much more protection than the guidelines that most prosecutors follow already. And since the Sixth Amendment guarantees that someone accused of a crime may compel witnesses to testify, a shield law offering absolute protection would probably be unconstitutional.

Taricani, when contacted last week, declined to comment on his case, referring me to WJAR spokeswoman Clare Eckert, who said the station began paying a $1000-a-day fine last Thursday. In a prepared statement, she said, "We are disappointed by the ruling of the Court of Appeals for the First Circuit against our position. We continue to believe if the courts can compel reporters to disclose the identity of a confidential source, many sources will withhold newsworthy information that is important to share with the public. Mr. Taricani respectfully declines to identify his confidential source."

Taricani’s lawyer, Jonathan Albano, of the Boston firm Bingham McCutchen, declined to discuss the specifics of the Taricani case. But he offered some pointed words on the matter of why confidential sources can be important — and why journalists should be able to protect their identities.

"If you talk honestly to elected officials and, for that matter, judges, I don’t think anybody would dispute that they have said things off the record that they would never say if those statements were going to be attributed to them," Albano says. "There are many instances in which people just aren’t willing to pay the price. It’s not really about reporters trying to say, ‘We’re a special breed, we’re above the law.’ It’s really about what’s the most fair way that people feel willing to speak about government issues."

As for Matthew Cooper, Albano says, "I wish him luck. It’s a very tough position to be in."

PERHAPS THE most peculiar aspect of the Valerie Plame probe is that Patrick Fitzgerald, the special prosecutor, appears to be going after everyone except the one person who unquestionably knows which "[t]wo senior administration officials" outed her to Robert Novak. That would be — drum roll, please — Robert Novak. Presumably Novak does not face criminal charges; it’s the White House that’s being investigated for exposing Plame’s identity, not Novak for sticking it in his column. (Novak, through a spokeswoman, declined to comment, as did his Washington, DC–based lawyer, James Hamilton, when I contacted them last week.)

Although no one knows the explanation for sure, one well-educated guess — offered by Jonathan Albano, among others — is that Novak, at least so far, is benefiting from the very guidelines that grew out of the Branzburg decision. That is, investigators do not want to ask a judge to compel Novak’s testimony until they can show that they’ve exhausted all other potential sources of information. The irony in this case, of course, is that those other potential sources are all fellow journalists.

Perhaps Novak’s day is coming. At the moment, though, it’s galling to see someone like Matt Cooper, basically an innocent bystander, facing jail while the Prince of Darkness continues to glower at viewers from his perch on CNN and to service sources and settle scores in his syndicated column. The Nation’s Washington editor, David Corn, the first journalist to report that the outing of Plame was evidence of a possible crime, says Novak should have handled the leak in an entirely different manner, although he supports Novak’s right not to identify his sources. Corn says Novak could have written that "these guys are willing to blow a national-security secret" in order to impeach Joseph Wilson’s credibility. "You could say, ‘It’s not derogatory information about Joe Wilson, but it is national-security information, and I’m not going to play with them,’" Corn adds. Clearly, though, Novak was more interested in tormenting Wilson and Plame than he was in biting the hands of his well-connected benefactors.