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Why Fox News reporter Jana Winter should not go to jail

This should be an easy case.

Jana Winter, a reporter for FoxNews.com, wrote a story last July about a “chilling notebook” that had been sent to offices at the University of Colorado by mass murder defendant James Holmes. The story cited “law enforcement” sources who Ms. Winter, like any reporter who relies on confidential sources to do her job, should not be required to name.   

It should be an easy case because not only does the First Amendment prohibit states from abridging the freedom of the press, but Colorado – like 31 other states – has enacted a shield law that goes beyond the protections afforded journalists by the Constitution. 

Under Colorado law, the courts of that state cannot force a journalist to reveal his or her confidential sources unless the identities of those sources are “directly relevant” to a substantial issue in the case, cannot be obtained by other means, and the interests of the requesting party in knowing those names outweigh  the journalist’s right to report and the public right’s to know. All three conditions must be met; here, none of them are.

The identities of Ms. Winter’s sources are hardly “directly relevant” to James Holmes' guilt or innocence, or to the proper punishment.

James Holmes is charged with multiple counts of capital murder. The identities of Ms. Winter’s sources are hardly “directly relevant” to his guilt or innocence, or to the proper punishment. Whether or not the notebook is admissible is an issue for the court to decide. Who told Ms. Winter about it is, in evidentiary terms, beside the point. 

The defense, in an effort to avoid the obvious conclusion that these sources are not directly relevant to a substantial issue in the prosecution, has attempted to recast this case -- not as the prosecution of Mr. Holmes but as the investigation of a purported violation of the Court’s gag order.   

That is absurd.   

This is a murder case.  The caption on all of the papers says it: "the People of Colorado v. James Holmes."   

If accepted, the defense’s argument would render the protections of the shield law a nullity in any case where a gag order is imposed, and its alleged violation is investigated: that is, precisely in those cases where public and press interest is greatest.

Nor is this a case where, if the Court were determined to do so, it could not use other means to seek out the leakers.   

In fact, a number of law enforcement officers have already been questioned under oath. If the Court wishes – and frankly, with all of the other issues in this case, there is hardly a compelling reason for such a sideshow – it can conduct further hearings.  But reporters have no place on the witness stand.    

Perhaps most important, Mr. Holmes’ only legitimate interest here -- his right to a fair trial, guaranteed by the Sixth Amendment – is hardly at risk, much less at such great risk as to outweigh the compelling interests of a free press and an informed citizenry that the Colorado statute seeks to protect.  

A fair trial does not carry with it a right to a jury that has not been exposed to pretrial publicity. Were it otherwise, no notorious defendant could ever be tried.  

The press coverage of this case reflects the enormous public interest in a particularly heinous crime.   It would be impossible to find a jury anywhere in America comprised only of individuals who had not been exposed to publicity about this case, some of it accurate, some of it speculative, and some of it probably just plain wrong.  

That is true in every “big” case.  I would be far more dubious of the honesty/capacity of a would-be juror who claimed to have heard nothing about the case than one who (as they will be asked) affirms that they can put aside what they have heard and decide the case based on the evidence presented in court.  

Only last week, the Colorado court granted, as against the opposition of  both the prosecution and the defense, the motion by various media organizations to release the affidavits supporting all arrest and search warrants in this case and any requests seeking the production of records.   

The prosecution claimed that it was seeking to protect the privacy of victims and witnesses; Mr. Holmes’ attorneys argued that the release of these materials would impair his right to a fair trial.  

The Court rejected both of these arguments, recognizing that only an “overriding and compelling” state interest could justify the burden on First Amendment rights, and that no such interest existed here.   

The same conclusion should apply to the defense’s demand that Ms. Winter name her sources.

At the end of the day, there are two puzzling aspects of Ms. Winter’s situation, neither of which relate to the merits, which should be easy.  

The first is that it has gone so far: that a story published last July, one of literally tens of thousands in this case, could subject a promising reporter to the choice of naming her sources (and destroying her career in the process) or going to jail.  

The second is that, even with a hearing only days away, there has been so little attention to the threat posed here not only to Ms. Winter, but to the core principles of the First Amendment, and to the efficacy of shield law such as Colorado’s.  

Is it because Ms. Winter works for FoxNews, and not for a more “liberal” media outlet?   I cannot imagine a more shortsighted response, nor one that is more inconsistent with the fundamental premise of a free press.

Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission. A woman of firsts, she was the first woman president of the Harvard Law Review and the first woman to head a national presidential campaign (Dukakis). Estrich is committed to paving the way for women to assume positions of leadership. Books by Estrich include "Real Rape," "Getting Away with Murder: How Politics is Destroying the Criminal Justice System" and "Dealing with Dangerous Offenders." Her book "Making the Case for Yourself: A Diet Book for Smart Women," is a departure from her other works, encouraging women to take care of themselves by engaging the mind to fight for a healthy body. Her latest book, The Los Angeles Times bestseller, "Sex & Power," takes an impassioned look at the division of power between men and women in the American workforce, proving that the idea of gender equality is still just an idea.