One vote. That’s how close Fox News reporter Jana Winter came to being sent to jail for doing her job by protecting her sources.
Thanks to Tuesday’s 4-3 ruling by New York’s highest court, Jana Winter, an investigative reporter, will not be forced to appear in a Colorado state court this January.
She will not be forced to divulge the sources of her reporting in the murder trial of James Holmes, the man charged with 166 felony charges in the movie theater massacre at a midnight showing of "Batman, The Dark Knight Rises." Twelve died and over 55 were injured in that attack in Aurora, Colorado on July 20, 2012.
By deciding in her favor, the New York state Court of Appeals has ruled, in effect, that New York’s “Shield Law,” which prevents journalists from being forced to reveal the identities of confidential sources of their reporting, applies to New York reporters no matter where they go to gather news – to any of our 50 states and the District of Columbia, almost none of which offers reporters comparable protection.
Lucy Dalglish, dean of University of Maryland’s Philip Merrill College of Journalism, called today’s ruling a “terrific victory” for journalism and “a bright spot in a legal area that’s been treacherous in recent years.”
Because of today’s ruling, Ms. Winter will be able to disregard a subpoena demanding that she appear in a Colorado court on January 3, 2014 to testify about who gave her sensitive information about the massacre.
Five days after the shooting, Ms. Winter, citing two 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.
While her 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. Saying she could not reveal her sources’ without violating their trust and effectively ending her career as a reporter, Ms. Winter vowed to go to jail rather than disclose their identity.
“Protection of the anonymity of confidential sources is a core -- if not the central -- concern underlying New York's journalist privilege, with roots that can be traced back to the inception of the press in New York,” Judge Victoria A. Graffeo wrote for the majority in today’s opinion.
In his dissent, Judge Robert S. Smith argued that “because the allegedly privileged communications took place wholly in Colorado … the New York Shield Law does not apply” to Ms. Winter.
He called the application of New York’s law “an excessive expansion of New York's jurisdiction, one that is unlikely to be honored by other states or countries or to attain the predictability that the majority says is its goal.”
But the majority disagreed. “A rule predicated on where a New York reporter was located when she learned of an anonymous tip would lead to arbitrary results and would ignore several practical realities,” Judge Graffeo wrote, “including the widespread use of cutting-edge communication technology to facilitate the newsgathering process and the global nature today’s news market.” A New York-based journalist could cover a California story while on assignment in Singapore “through e-mail, text messaging and the like,” she wrote.
“New York journalists should not have to consult the law in the jurisdiction where a source is located or where a story ‘breaks’… to determine whether they can issue a binding promise of confidentiality.”
Dori Ann Hanswirth, Ms. Winter’s attorney, called the defense’s effort to force Ms. Winter to reveal her sources a “side show” designed to embarrass local law enforcement in Aurora rather than protect James Holmes.
“The threat of jail that has been hanging over Jana’s head for more than a year is now over,” she said.
New York’s ruling was a welcome surprise.
In March, New York's lower state court sided with Colorado, ruling 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.
Mr. Holmes has pleaded not guilty by reason of insanity, and his lawyers have made several statements in court acknowledging that he conducted the midnight theater massacre. But his attorney’s effort to force Ms. Winter to disclose the sources of her story threatened her freedom long before Mr. Holmes stands trial.
Had the New York court not supported her claim that New York’s shield law protects her First Amendment rights wherever she may be reporting, Jana Winter might well have been the first person to be jailed in this case.
Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press, said New York’s ruling “could not come at a better time.” With the Department of Justice reforming its media subpoena guidelines, James Risen, my former New York Times colleague, fighting to protect his sources and stay out of jail, and Congress considering a federal shield law to protect reporters’ confidential sources, “the New York high court has reminded us all that there is no part of freedom of the press as important to the flow of information to the public as defense of reporter-source confidentiality,” Brown said.
At least 15 other states and the District of Columbia have adopted laws affording ostensibly absolute protection of reporter's confidential sources, but none is as comprehensive as that of New York.
Nor, for that matter, is the federal shield law now being considered by Congress. The federal measure would establish a balancing test between source protection and the government’s need for the information, not provide absolute protection.
Despite the importance of this case for journalists and journalism, most in the media paid scant attention to Jana Winter. Some in the social media -- hooray for BuzzFeed, for instance -- also described her plight, but the three main broadcast networks were mum. CNN apparently mentioned her case only twice in over a year.
A Factiva search turned up 35 stories about the case since December 2012, but 17 of these were by the Denver Post, the main paper covering the Aurora massacre.
Fortunately for Jana, the New York state appellate judges consulted legal tomes rather than their daily newspapers, websites and broadcast news networks in reaching their verdict.
Judith Miller, a Fox News contributor, is an award-winning writer and author, and an adjunct fellow at the Manhattan Institute. The author of several books, her latest is "The Story: A Reporter's Journey" (Simon & Schuster, April 7, 2015) now available in paperback. Follow her on Twitter @JMFreeSpeech.