Why you should care about Fox News' First Amendment fight

25 journalists have been jailed since 1972 for refusing to reveal a source

This is a rush transcript from "The Five," April 8, 2013. This copy may not be in its final form and may be updated.

KIMBERLY GUILFOYLE, CO-HOST: Well, it's a story that should trouble every American who cares about the First Amendment. One of our own is at the center of it.

FOX News reporter Jana Winter has been threatened with jail time if she doesn't reveal sources for an exclusive story on movie theater massacre suspect James Holmes. She wrote about a notebook Holmes mailed to his psychiatrist before the July attack that was reportedly full of details about how he was going to kill people.

A Colorado judge is expected to decide on Wednesday whether she must testify. And reveal her sources.

So, Eric, this is a serious situation. She could be held in contempt.

Normally, you can be held all the way up to the point where you in fact reveal your sources.

The judge indicated in court that he could hold her up to six months.

That was his thinking or inclination at the time -- all for her doing her job.

ERIC BOLLING, CO-HOST: Right. She is doing her job there is a thing called, in Colorado, in several states and maybe even a federal, I'm not sure if it's federal also. But the Shield Law which allows reporters --

GUILFOYLE: Colorado.

BOLLING: In Colorado, but I'm not sure if there's a federal one as well. In other words, reporters should be able to do their job, investigate, if they get something that's ruled evidence for a trial, present it to the court and keep their sources, you know, out of the courts--the names out of the system.

Here is what has happened though. James Holmes' team, remember, this guy killed --

GUILFOYLE: His attorney who brought this.

BOLLING: His attorney who is trying to get the judge to say no, she has to reveal the sources. So, it's not even the judge who wants to do this.

So, the question is, do you want some mass murderer killer's taxpayer- funded legal team making a decision for Jana to either go to jail or do her job?

BOLLING: Jana or Janis.

BOB BECKEL, CO-HOST: There is a huge loophole in that Shield Law because it says in it unless, unless what the reporter finds out is relevant to the outcome or something to do with the trial.

But, in this case, there were policemen who had access to that and she got it from police who gave --

GUILFOYLE: Law enforcement source.

BECKEL: Law enforcement source. So I just don't see what it is about what she has done that is material to this case if they have already got this stuff.

GUILFOYLE: You are absolutely right, Bob. There is an important distinction here. I'm sure the judge will pay attention to this. The judge is Colorado Judge William Sylvester. If they can obtain that information from other sources, there is absolutely no legal justification to imprison her, to put her in jail for doing her job as a journalist, which was investigating one of the biggest mass murderers.

This story, she was able to get that information. It's been verified.

And now she is going to be punished for having journalistic standards and integrity and not revealing her source, which is the right thing. She very courageous as Judge Napolitano mentioned -- Dana.

DANA PERINO, CO-HOST: There is not a national security question here. The question is whether or not he is going to spend his life in prison or is he going to get the death penalty. So there are, I think the judge will, I hope that he will use his judgment and recognize that.

I also wonder, you know, there is one thing to wonder where the rest of the media is in terms of supporting her. But where is the ACLU?

GREG GUTFELD, CO-HOST: Yes.

PERINO: They are so busy -- what, did I take your point?

GUTFELD: Yes.

PERINO: They are so busy suing schooling schools that have a photograph of Jesus that was given to them in 1947. That they don't have any time --

GUTFELD: I said they are busy taking down a nativity scene in a strip mall in Kansas.

PERINO: It's a Gutfeld-Perino mind-meld.

GUTFELD: It actually frightens me.

GUILFOYLE: Greg?

GUTFELD: I think, you know, there is another part of this story, too.

The information that she reported told you that this was about the gunman and not about the gun. And the dangers of symbolic gestures such as gun free zones and how harmful they are because this guy had meticulously planned this murder and he went out of his way to find a theater that was gun-free.

And what that tells you is it wasn't the gun that mattered. It was the madman.

BOLLING: But also what matters is, depending how this judge rules.

And, by the way, he can say no. She can keep her sources confidential.

GUILFOYLE: Right.

BOLLING: Depending how it rules, you have to think other investigative reporters down the road are going to go, "should I or should I not be doing this?"

(CROSSTALK)

GUILFOYLE: You bring up a point. It kills the First Amendment. All journalists should be united behind her. So should these groups that are always mouthing off -- about the ACLU. Only one group has come forward, the National Press Club urged a judge to drop this.

And, again, the judge is compelled. This is not the judge's doing.

He did not bring this motion up. This is from the murderer's defense team who is trying to create a problem here--a side-show distraction.

Shame on them. They're wrong for doing it.

BECKEL: Just one last point and we'll get out of here. But the psychiatrist had this stuff in her or his hands and never reported it? I mean, to somebody?

PERINO: There is a dispute about that.

BECKEL: Oh, there is?

PERINO: Yes.

GUILFOYLE: Imagine if this is a New York Times reporter, everybody would be rallying behind them.

GUTFELD: Or who is Al Jazeera.

BOLLING: Or if it was David, you know NBC David --

BECKEL: Or if it was you.

GUILFOYLE: Alright. So, if you want to show your support for Jana, go to Twitter and tweet the hashtag #LEAVEJANAALONE. Do it now.

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