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Reporter fights ruling forcing her to reveal Aurora shooting sources
Appeals court hears arguments Tuesday in case with implications for journalists nationwide
November 12, 20132:21PM ET
New York's highest court began hearing arguments Tuesday over whether state law protects a Fox News reporter from being forced to reveal confidential police sources behind leaked information about James Holmes, the accused killer of 12 people in a suburban Denver movie theater.
The decision could have an impact on reporters in New York and nationwide.
Holmes' lawyers want Jana Winter, who works at New York-based Fox News, brought to a Colorado courtroom to name two law officers who told her Holmes had mailed a notebook depicting violence to a psychiatrist.
They argue the sources violated a gag order, may have later lied under oath about it, and won't be credible as trial witnesses.
Holmes' attorneys argue that New York journalists, as a group, are not immune from being subpoenaed to testify in other states.
The Court of Appeals will hear arguments Tuesday. Its ruling is expected in December. Holmes' murder trial is scheduled for February.
New York has a strong so-called "shield law" protecting professional journalists from having to disclose their confidential sources and preventing courts from finding them in contempt if they don't disclose them. Colorado has a similar law, but with an exception to subpoena information "directly relevant to a substantial issue" that cannot be obtained elsewhere.
Winter reported that the notebook, mailed to a University of Colorado psychiatrist before the mass shooting, had drawings of "gun-wielding stick figures blowing away other stick figures." She cited two unnamed law enforcement sources.
"In cases of confidential source information, the privilege is absolute," Winter's attorney Dori Hanswirth said of New York's law. "It was designed to be very strong."
"Essentially what we're arguing is that the public policy in New York that's embodied in the shield law should have prevented the judge from signing off on this particular subpoena," Hanswirth said Monday.
He said Winter has "never wavered" on the accuracy of her report.
New York's shield law was first enacted in 1970. Gov. Nelson Rockefeller said at the time that it would make New York, as the nation's principal center for news gathering and dissemination, "the only state that clearly protects the public's right to know and the First Amendment rights of all legitimate newspapermen."
Daniel Arshack, an attorney for Holmes, said this case isn't about the shield law at all — just about issuing a subpoena to a witness.
"The only issue before the court in New York is whether there is a singular class of citizens who are immune to subpoenas," Arshack said.
"If the court in New York was to unilaterally decide that one class of citizens is immune from being subpoenaed to another state, we could expect that other states could likewise define safe no-subpoena-zones for various types of citizens that they particularly cherish: oilmen in Texas, movie stars in California, gamblers in Nevada, socialists in Vermont," Holmes' attorneys argue, according to the Albany Times Union.
A lawyer for Winter put it differently in her team's legal brief, saying the debate went to the very heart of investigative journalism
"A journalist's ability to go beyond official press releases and uncover the facts that authorities, corporations, or even just private individuals might prefer be kept hidden — the very definition of an investigative reporter — depends almost entirely on the journalist's ability to cultivate and maintain relationships with sources," attorney Christopher T. Handman wrote, according to the Times Union.
"If a New York reporter can be stripped of her protections under New York's public policy simply because the reporter crossed state lines, New York's robust public policy in favor of confidential sourcing will become a dead letter for all but the most parochial stories."
A lawyer for Winter told the paper that she is prepared to go to jail before revealing her sources.
Advocates of shield laws argue that if courts can compel journalists to reveal their sources, people who want to remain anonymous in reports will be reluctant to go to the media, since they can't be sure their identity will remain secret.
A Manhattan judge granted the subpoena for Winter to testify, rejecting the claim she's protected by New York's shield law.
Justice Larry Stephen concluded that whether Winter's information is needed and should be disclosed was an issue for the Colorado court to decide.
A midlevel court agreed. The majority wrote that compelling her to testify was not the same as compelling her to disclose sources. The three justices also concluded the issue of admissible evidence and journalist privilege "remain within the purview of the demanding state rather than the sending state," in this case Colorado.
The two dissenters countered that the majority "fails to acknowledge the near certainty" the Colorado court will compel her to either identify her confidential sources or go to jail for contempt, contrary to New York's public policy. They said she could suffer "undue hardship" in damage to her career.