While the press in Colorado is consumed with its coverage of the capital murder prosecution of James Holmes for the slaughter he perpetrated in a movie theater in the town of Aurora on July 20, 2012, a related court proceeding is taking place in the same courthouse that the local and national press would be wise to cover.
My Fox News colleague, Jana Winter, an experienced journalist of impeccable integrity, is being threatened with incarceration by a Colorado judge unless she reveals the sources for the excellent and highly newsworthy piece she wrote for FoxNews.com revealing the existence of a notebook written by Mr. Holmes before the murders and sent to his psychiatrist, Dr. Lynne Fenton.
Winter's report cited unnamed law enforcement sources and the defense immediately complained that investigators had violated the judge's gag order issued days beforehand.
Now, in a witch hunt instigated by defense attorneys, the court seeks to learn who revealed the notebook's existence to Ms. Winter. Fourteen cops and investigators have denied being her source under oath, with more testimony next week. Ms. Winter herself has invoked the protection of the Colorado Shield Law, which permits bonafide journalists to decline to reveal their sources on matters of material public interest. But this law, like many, has a loophole in it that might enable a misguided court to incarcerate Ms. Winter if the court concludes that its need to know the identity of the source is greater than Ms. Winter’s need to protect the source, and if the identity of the source cannot be obtained by any less intrusive means.
All this means is that if judges want to compel reporters to reveal sources, they can, and the so-called shield laws are meaningless. This has become a power play between the court, the State, and the press. What need does the court have now for the identity of my colleague’s sources? She reported truthfully and accurately of a matter of acute public importance. She first informed the world that Mr. Holmes sent a notebook to a mental health professional full of details about how he was going to kill people.
When one weighs the service Ms. Winter performed--the revelation of a truth--against the wishes of the State in wanting to know who spilled the beans, this is not a close call. Moreover, if courts can force reporters to reveal confidential sources, then who will talk to reporters in the future, and how will inconvenient truths about the government become known?
The whole purpose of the First Amendment is to stimulate and protect open, wide, robust debate about the policies and personnel of the government. Truth is essential to that stimulation. Putting reporters in jail for revealing the truth while protecting their sources is profoundly contrary to that purpose and highly offensive to the values the First Amendment was written to protect and we have all come to enjoy.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.