Guest Blog: Reporter’s Court Case Could Have Far Reaching Implications for Freedom of the Press

Consider this question:

Does a state’s authority to compel a reporter to reveal his or her sources hinder investigative journalism as such thus undermining the free press provision of the First Amendment?


Fox News reporter, Jana Winter, was in New York’s State Court of Appeals Tuesday fighting an appellate court ruling that upheld a subpoena issued by a lower court.  A judge in Manhattan issued the subpoena last January ordering Winter to appear before a judge in Colorado to provide testimony regarding her sources in a July 25, 2012 news report. The report followed the mass killing at an Aurora, Colo. movie theater showing of “The Dark Knight Rises.”

Background for those not familiar with Winter’s story

Through investigative journalism, Winter obtained and reported exclusive information about a piece of evidence in the Aurora theater massacre case, a notebook mailed by the alleged killer to a University of Colorado psychiatrist.  The notebook, according to at least one of Winter’s sources, was “full of details about how he was going to kill people;” details such as “drawings and illustrations of the massacre.”

Winter agreed to confidentiality with her sources who presumably defied a gag order placed on case evidence by divulging the information about the notebook.  She was issued the subpoena in New York at the behest of a Colorado judge who deemed Winter’s presence at the trial to be necessary.  The alleged killer’s defense claims that Winter’s report of the notebook prevents their client from receiving a fair trial.

A ruling by the New York State Court of Appeals is expected in a few weeks.  If the court rules to uphold the subpoena, Winter will be required to testify before a Colorado judge in January.  If she refuses to break her confidentiality agreement and give up her sources, Winter could face jail time for contempt of court.  One of Winter’s lawyers, according to at least one news story, said that Winter will not reveal her sources.

Why is this important?  What is at stake?

Although freedom of the press is enumerated in the First Amendment many states have gone so far as to explicate certain protections to support a free press.  According to the First Amendment Center, 39 states and the District of Columbia have media shield laws.  The extent of overt protection in these laws varies by state.

The state of New York – provides an absolute privilege with respect to any information, including the identity of a source, conveyed to a reporter in confidence(source) such as in the case of Winter whose sources agreed to provide her with information under the condition that she keep their identities confidential.

Colorado, on the other hand, has a qualified privilege in its shield law.  Under Colorado’s shield law –

The qualified privilege can be defeated where the person seeking the information can prove by a preponderance of the evidence: “(a) That the news information is directly relevant to a substantial issue involved in the proceedings; (b) That the news information cannot be obtained by any other reasonable means; and (c) That a strong interest of the party seeking to subpoena the news person outweighs the interests under the first amendment to the United States Constitution of such news person in not responding to a subpoena and of the general public in receiving news information.” (source)

Although Winters is a resident of New York and works for a New York based news organization she reported on a national news story that took place in Colorado.  This case, therefore, pits the strength of New York’s shield law against the Colorado subpoena.

The outcome of her case has implications for press freedom on multiple levels.  It will certainly set a precedent for the state of New York, and it may very well influence similar decisions in other states.  A ruling in favor of Winter will secure the absolute nondisclosure privilege for journalists who are residents of New York regardless of where they travel to investigate and cover a story.  This case could also lend credence to arguments by proponents of a federal media shield law which does not currently exists but has been proposed in the form of the Free Flow of Information Act of 2013.

If the court supports the decision of the lower courts to uphold the subpoena Winters will be compelled to testify in Colorado.  If she refuses to reveal her sources it is unclear how much jail time she could potentially do.  If she does reveal her sources it is commonly feared among journalists that sources will dry up – not only for Winter, but for investigative journalists everywhere.  Winter claims that this has already happened to her since she has become embattled in this attempt to compel her disclosure of sources.

Although the First Amendment refers to the federal government (Congress shall make no law . . .) the free press provision was incorporated against the states via the Fourteenth Amendment in the 1931 landmark U.S. Supreme Court case, Near v. Minnesota.

Freedom of the press is arguably the most important freedom to maintain because without it individual citizens will be at the mercy of information propagated by government officials.  There would be no reporting of unflattering truths or dissenting theories and opinions as long as government had the power to make laws prohibiting freedom of the press.  There would be no knowledge of NSA spying on innocent Americans, no reporting that is unfavorable to Common Core State Standards or Obamacare, no mention of the Watergate scandal, the fact that there were no weapons of mass destruction in Iraq and President Clinton’s indiscretions with Monica Lewinsky would have certainly been kept quiet.  Not only does the list go on and on, but the mere fact that a free press serves as the citizens’ watchdog over government likely causes potential wrong-doers to reconsider.

It’s my belief that Americans should actively become more aware of the implications of Jana Winter’s case and anything else effecting freedom of speech and the press.

To the question I posed at the beginning of this post – Does a state’s authority to compel a reporter to reveal his or her sources hinder investigative journalism as such, thus undermining the free press provision of the First Amendment?  I think it does.  What do you think?



The following news articles were referenced in addition to sources referenced within the text of my post:

5 responses to “Guest Blog: Reporter’s Court Case Could Have Far Reaching Implications for Freedom of the Press

  1. Thanks for reading and commenting. I think the media shield laws, this court case and a lot of press freedom topics go under the radar until someone really screws up and sets the world on fire with an irresponsible remark or on-air meltdown. Then people take notice and start trying to tinker with First Amendment rights.
    Thanks again. Have a look around the blog while you’re here.

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