Here we go again.
On Tuesday, Fox News reporter Jana Winter will be back in court, this time in Albany, continuing her fight to avoid jail and protect her confidential sources.
On that day, the New York State Court of Appeals, the state’s highest court, will hear her plea to reverse a lower state court ruling which orders her to return to Aurora, Colorado to testify in the trial of James Holmes, the man charged with 166 felony charges, including 24 counts of first degree murder, in the movie theater massacre at a midnight showing of “Batman, The Dark Knight Rises.” Twelve died and over 55 were injured in the attack on July 20, 2012.
Five days after the shooting, Ms. Winter, citing unidentified “law enforcement sources,” reported that Holmes had sent a notebook "full of details about how he was going to kill people" to a University of Colorado psychiatrist before the attack.
The notebook, which may have sat unopened in the university mail room for up to a week before the shooting, she disclosed, contained “drawings of what he was going to do in it -- drawings and illustrations of the massacre," she quoted a law enforcement source as saying, as well as “gun-wielding stick figures blowing away other stick figures.”
While Ms. Winter’s report was a world class scoop, defense attorneys complained that her law enforcement sources had denied Holmes a fair trial by violating the judge’s gag order and leaking her potentially incriminating information.
After 14 law enforcement officials denied having been her source, the Colorado judge in the case ordered her to turn over her notes and testify about who gave her the information.
The court also demanded that New York enforce its certificate, then subpoena Ms. Winter and require her to return to Colorado on January 3, 2014 and testify about her sources, which she has refused to do.
In March, New York’s lower state court sided with Colorado.
The five-judge panel ruled, in a 3-2 decision, that Holmes’s right to a fair trial with all available evidence trumped Ms. Winter’s right to protect her sources.
The court also ruled that she would not undergo “material hardship” if she testified because Colorado would pay the cost of her transport back to Colorado and lodging during her stay.
In her appeal, Ms. Winter argues that the lower court should not have approved a certificate that would require a journalist to testify in a state like Colorado which does not provide the same protection of confidential newsgathering information as New York.
Her right to keep sources private, she argues, is guaranteed by New York’s media shield law, which gives reporters “absolute protection” against being forced to disclose sources.
While Colorado also has a media shield law, it is far weaker than New York’s.
In New York, unlike Colorado, a journalist cannot be jailed for refusing to name sources. This protection, she argues, is fundamental to investigative reporting.
The lower court in New York also defined the “material hardship” on her if she testifies too narrowly, she argues.
In a powerful dissent from the lower New York court’s ruling, Judge David B. Saxe wrote that the concept went far beyond transport and housing costs -- though Jana Winter has already traveled to Colorado four times in connection with this case.
The lower court, Judge Saxe noted, did not consider Ms. Winter’s assertion that “she relies upon confidential sources for her livelihood, and that her sources would not speak to her if she divulged their identities.”
If Colorado forced her to testify, “material hardship” would be far more than “three days of travel, a hotel stay, and missing work,” Judge Saxe argued. “It is nothing short of undermining her career, the very means of her livelihood.”
Jana Winter’s case has received all too little attention, given the free press issues at stake.
A Google News search for "Jana Winter" turned up very little coverage outside of Fox News.
Given the broader assault on journalists and a free and independent press every American should know Jana's name.
All journalists, indeed, all Americans who believe that democracy depends in part on a free and independent press have a stake in the outcome of this fight. Now is the time to support Jana Winter.
Judith Miller, a Fox News contributor, is an award-winning writer and author, and an adjunct fellow at the Manhattan Institute. She spent 85 days in jail in the Alexandria Detention Center in Virginia in 2005 to protect confidential sources.