Published December 11, 2013
A New York court's decision to protect a FoxNews.com reporter from being forced to reveal her sources in Colorado or face jail underscores the unpredictable patchwork protecting journalists and their sources, First Amendment experts said.
Although journalism and Constitutional experts hailed Tuesday's New York Court of Appeals decision to toss an Empire State subpoena ordering Jana Winter to appear in a Colorado court, they said her year-long legal fight still leaves a chill on the field. The strength of so-called shield laws varies from state to state, and reporters cannot always depend on a court to be sympathetic to the Fourth Estate, they said.
“It’s a victory for the reporter so long as she doesn’t leave New York State,” Peter Scheer, a lawyer and journalist who is currently executive director of the California-based First Amendment Coalition, told FoxNews.com. “The minute she steps across a bridge out of New York she could be subpoenaed in another state.
“This ruling doesn’t resolve any media issues, but it points out to inconsistencies of the patchwork of state laws when it comes to the protection for the confidentiality of sources,” he said.
In the 4-3 decision, the New York majority said it would "offend" New York public policy to allow its courts and service of process to be used to assist a state with weaker journalistic protections to force a reporter to reveal sources. David Cuillier, president of the Society of Professional Journalists, praised the court but said the underlying issue remains a problem.
"This ruling really raises the big elephant in the room," Cuillier told FoxNews.com."That this is a huge problem that needs to be fixed."
Cuillier added that a proposed federal shield law will not do much to protect journalists, as it will only cover federal level issues. Winter was being subpoenaed to divulge who violated a Colorado judge's gag order in telling her about a chilling notebook Aurora movie theater gunman James Holmes sent to his psychiatrist before his deadly attack in July, 2012. Winter had vowed not to reveal her sources, even if it meant being sent to jail for an indefinite term.
"We need to strengthen the state laws, but it's not going to be easy," Cuillier said. "It's not something you can do with the push of a button,."
"But this case will help because this is something that we can point to. It will allow us to show why laws need to be fixed at the state level."
Another reporter who is still facing a First Amendment fight of his own is Joe Hosey, a Patch.com reporter from Joilet, Ill., who was ordered in September by a Will County judge to give up the sources who gave him he grisly details of a double murder last January.
Hosey, a 10-year veteran journalist known for reporting on the Drew Peterson case, has said he will go to jail rather than comply with the court order give up the source. The judge ruled that the matter is not protected by the state's shield law, and that Hosey must comply or face an indefinite term behind bars.