Attorney says government needs to re-evaluate state Shield laws after Fox News reporter's case

Jana Winter broke story on James Holmes' notebook


A constitutional attorney says the possibility that reporter Jana Winter could go to jail for refusing to reveal her sources for a story in the aftermath of the Aurora movie massacre is enough for the government to re-evaluate state Shield laws.

David Rivkin, who appeared on "Fox & Friends" Sunday, said there needs to be a national solution that “would never put any reporter in that situation.”

In 2012, Winter wrote an exclusive story detailing how alleged gunman James Holmes sent a package to a University of Colorado psychiatrist that included a notebook "full of details about how he was going to kill people," according to one of her sources.

Rivkin said Holmes’ lawyers believe they won’t get a fair trial if they don’t know Winter’s source.

“It’s a very weak argument,” Rivkin said.

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Rivkin explained that New York, where Winter is based, has an Absolute Shield Law that protects reporters from revealing their sources. However, New York courts decided that Winter’s situation should be looked at under Colorado Shield laws, which contain exceptions that may allow reporters to testify.

“This whole story to me demonstrates that there is a need for a national solution,” Rivkin said.

Peter Johnson, Jr., a Fox News legal analyst who later appeared on "America's News HQ," believes the First Amendment outweighs "all the other issues going on in this case" and it would be a "terrible injustice" to let Shield law exceptions force Winter into revealing her sources.

“To bring Ms. Winter to Colorado to testify and then give up sources…that does a disservice to the constitutional protection,” he said. "Let's not throw the First Amendment under the bus based on a spurious motion by Mr. Holmes' lawyers, who have already admitted that they would like to plead guilty for this defendant in order to avoid the death penalty.”

Click for full coverage of Fox News' First Amendment fight.