Judges often issue gag orders to prevent parties from sharing information about a case with the public.
Outside of the courtroom, however, journalists search for reliable information. It is their duty to properly educate the public and the Constitution guarantees a free press.
Sometimes the two worlds -- courtroom and media -- collide when a journalist obtains exclusive information (that is potentially under a gag order) from a person in exchange for confidentiality. A journalist’s success (and personal safety) is greatly dependent on trustworthiness, on the guarantee that the journalist will keep the source’s identity under lock and key.
If we do not protect our messengers, journalists lose the most important element of their career: trustworthiness.
FoxNews.com reporter Jana Winter and her sources are at the center of just such a collision in a high profile case. Jana’s career is on the line because defense lawyers want a judge to force her to reveal where she got her exclusive information.
On July 20, 2012, a shooter launched an attack on moviegoers inside of a theatre in Aurora, Colorado. The alleged assailant, James Holmes, killed 12 and wounded an additional 58 people.
Aside from the location of the shooting, there was a second crime scene: Holmes' apartment. When authorities apprehended Holmes (within moments after his shooting), he said that his apartment was booby-trapped with explosives. Holmes was otherwise uncooperative.
There was also a third potential crime scene: The University of Colorado-Denver School of Medicine. Holmes had recently dropped out from the school and investigators believed he received shipments of explosives at its Aurora campus over a period of four months. Additionally, there was an immediate concern that Holmes also booby-trapped an area of the school.
People involved in the case made public statements. Just one day after the shooting, Aurora Police Chief Dan Oates stated that the crime was carried out with“calculation and deliberation." He also said that Holmes’ apartment was “designed to kill.”
Even New York Police Department Commissioner Ray Kelly also spoke publicly, stating that Holmes called himself "The Joker." A confidential law enforcement source confirmed Kelly’s statement with ABC News.
The amount of law enforcement officers involved in the investigation was enormous, and the FBI told ABC News that approximately 100 agents were assisting in the investigation. Certainly, an additional few hundred state and local officers were also involved.
Even though Holmes appeared in court within hours of his midnight shooting, it was not until July 23, 2012, that the first gag order was issued.
On July 24, CNN published information from an unnamed source regarding specific contents found inside of Holmes’ apartment: dozens of homemade grenades, gallons of gasoline, improvised explosive devices (IED's) and trip wires. The setup was similar to what is seen in Afghanistan and Iraq.
On or about July 24, Ms. Winter "learned that police had searched for and recovered" a notebook that Holmes sent to a psychiatrist. She investigated the "tip" and published an exclusive story on July 25.
Even though countless media reports were laden with confidential sources, Holmes’ defense team chose to solely target Ms. Winter and her sources as the sole violators of the gag order.
This defense tactic is not only an attack on Ms. Winter. It is an attack on our First Amendment and an attack on the public’s right to information when public safety is at issue.
Almost 40 years ago, in 1976, the Supreme Court ruled that it is improper for the court to bar the press from publishing information about a criminal case. It is absurd that Holmes’ defense is wasting public money on such a frivolous matter.
With hundreds of investigators working on the case and hundreds of journalists publishing constant updates, Ms. Winter and her editors made the correct decision to share information that was in the public’s best interest. Holmes left his mark in numerous areas, many of which might have been a threat to public safety. Others could have been involved in carrying out his plans. This was not a small crime.
Ms. Winter must continue to fight against revealing who gave her confidential information, even if it means that she will be sentenced to jail for contempt of court. Ms. Winter was simply the messenger between her confidential sources and the public. If we do not protect our messengers, journalists lose the most important element of their career: trustworthiness.
Tamara N. Holder is a Fox News Contributor since 2010. She is also a clemency attorney and founder of xpunged.com. She has filed hundreds of petitions to expunge/seal criminal records, and petitions for clemency/pardon.