Why are you not up in arms, New York Times and Washington Post? Why so quiet, Cleveland Plain Dealer and Sacramento Bee? Weekly newspaper editors, students at the Columbia School of Journalism, government employees who have quietly revealed wrongdoing to reporters – why are you not raising hell about what is happening to Fox News investigative reporter Jana Winter?
Winter is currently facing a jail sentence for refusing to reveal the sources who provided her with alleged Aurora shooter James Holmes’ notebook, which he had sent to a psychiatrist and which was"full of details about how he was going to kill people." Holmes’ defense attorneys subpoenaed Winter to testify about who told her about the notebook and a Colorado judge has said that he will rule on April 10thwhether Winter must reveal her source or face jail time for refusing to testify.
Winter’s dilemma should not just trouble just her colleagues at Fox News – it should trouble every single American who values the First Amendment, freedom of the press and the free exchange of dialogue between the media and those who supply journalists with information.
That Winter is even in this position should send a chill down the spine of anyone who has ever read a piece of investigative journalism.
Chances are that nearly every reporter who has received a Pulitzer has benefited from a source who has leaked information. From Woodward and Bernstein, who met with a mysterious source named Deep Throat in a garage, to a local zoning board official who is privy to municipal corruption in a small town, conversations between journalists and unnamed sources lead to investigative articles that shed light on the very things those in power would rather not reveal. Off the record conversations – or “leaks,” as they may be less pleasantly called -- are the bricks and mortar of what you read when you crack open a newspaper.
Every single time I have spoken to a reporter off the record, I have done it with confidence, knowing that there are fewer things more sacrosanct than the understanding between a journalist and a source regarding those conversations. If sources who provide journalists with information in the public interest have to fear that judges could compel the release of their identities, such exchanges would be dramatically curtailed -- to the great detriment of the public good.
Imagine if a judge had forced Bob Woodward and Carl Bernstein to reveal the identity of Deep Throat, who corroborated so much of their research into the Watergate scandal. Mark Felt, the associate director at the FBI, would likely never have risked his career, his family’s safety and the opprobrium that came with notoriety to leak information to the Washington Post. The arc of history would therefore have been very different indeed.
And that is why the case of Jana Winter is so fraught with peril for every single one of us – journalist, source and reader alike.
If a judge in Colorado, with its Shield Law protecting journalists from revealing their sources, can compel Winter to testify, no source will ever be fully comfortable speaking to a reporter again. A wall of silence will go up to shield corrupt politicians, bureaucrats and police officers from being investigated by an independent press corps because those who may want to shed light on wrongdoing will be cowed into silence by a judicial system that will place careers and personal safety in peril.
Those of us who speak to reporters off the record should be comforted by the fact that Winter may choose jail time over testifying about her source. But should we really weigh whether a reporter would choose confinement over testimony before revealing pertinent information to that reporter? How many of us would place our livelihood in the hands of a reporter who would have to choose between leaving his family and entering a jail cell on our behalf and ruining his career by revealing a source’s identify?
James Holmes’ attorneys are fighting for their client’s life, as they should. But the Colorado judge who is deciding whether to compel Winter to testify may set a precedent that can ruin many more lives in the process. There is no excuse for any of us who have ever picked up a newspaper or turned on the news to be silent as the court is deliberating Jana Winter’s fate.