That was the bottom line in the Jana Winter decision handed down Tuesday in New York’s State Court of Appeals. In a 4-3 decision the court ruled that the subpoena, originally requested by a Colorado judge, should not have been issued by a New York court and cited the state’s strong media shield law as the New York based reporter’s absolute privilege. [I blogged about this case on Idea Transfuser when it went to the state’s top appeals court in Nov.]
The opinion of the majority in the 34-page report dismantled Holmes’ defense attorney’s basis for asserting New York’s obligation to issue the subpoena to Winter. Judge Graffeo, who provided the majority opinion, also briefed the history of New York’s journalist privilege and delivered several reasoned arguments for applying it to this particular case.
“This predictable chain of events is precisely the harm sought to be avoided under our Shield Law for it is fear of reprisal of this type that closes mouths, causing news sources to dry up and inhibiting the future investigative efforts of reporters. The District Court is understandably troubled by the violation of the restrictions it imposed on pretrial disclosure, but the New York Shield Law ‘permits a reporter to retain his or her information, even when the act of divulging the information was itself criminal conduct’. … As we have explained, 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.”
Because New York’s strong shield law was being invoked to protect a New York journalist from the Colorado subpoena, Holmes’ defense had suggested that permitting the New York journalist privilege to shield Winter in this case would “have the effect of expanding the territorial effect of New York law” beyond the state’s borders. The court rejected that claim.
“We therefore conclude that an order from a New York court directing a reporter to appear in another state where, as here, there is a substantial likelihood that she will be compelled to identify sources who have been promised confidentiality would offend our strong public policy — a common law, statutory and constitutional tradition that has played a significant role in this State becoming the media capital of the country if not the world. … The outcome of this case does not (and should not) turn on whether Winter received the information while she was in Colorado or obtained it over the telephone or via computer while sitting in her New York office. 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, including the widespread use of cutting-edge communication technology to facilitate the newsgathering process and the global nature of today’s news market.”
I’m going to repeat something that I wrote in another post:
People must acknowledge that freedom of the press, or lack thereof, has consequences that affect all Americans, not only members of the press. Advocating for press freedom is not to benefit only certain privileged members of society. It is acting on the principle that the people have a right to know the truth about their government. When we become complacent with our access to that knowledge we are vulnerable to losing our means of obtaining it.
That same principle applies to journalism as a whole, not only those members of the press assigned to cover various branches of government. I imagine that not many people will see this as a worthy cause to advocate because the media has generally become perceived as incompetent. I strongly urge those people to not view freedom of the press as a license that can be revoked and reissued predicated on a journalist’s performance, but rather as an absolute principle that is essential to the foundation of a free society.
Incompetent journalism is not acceptable. We should combat that by holding the news media accountable, and demanding aggressive, thorough, and accurate reporting. There is good journalism going on, and there are plenty of individuals with journalistic integrity out there seeking the truth. They rely on the First Amendment and their potential sources count on confidentiality agreements being upheld.
The fight to maintain press freedom will remain ongoing. Of course there are a multitude freedoms and causes to speak out and fight for, but to lose our freedom of speech and the press is to lose our means of discovering and demanding truth and justice.
Congratulations to Winter for conducting good investigative journalism and standing up for her right to maintain her confidentiality agreements thus standing up for the principle of freedom of the press. Her victory is well deserved.
Credit to the New York court for recognizing the importance of press freedom and handing down the right decision.
The full 34-page Jana Winter decision complete with a dissenting judge’s opinion can be viewed here.