A FOX News reporter will not have to testify over unnamed sources in the James Holmes murder trial, a New York court ruled early Tuesday morning.
FOX investigative journalist Jana Winter had been subpoenaed by a court in Arapahoe County, Colorado over her sources in an exclusive story filed for the channel in July. In that report, Winter made public the existence of a notebook purportedly created by movie theater shooting suspect James Holmes.
Winter did not name her sources directly in the story, only going so far as to call them “law enforcement sources.” After twenty different law enforcement personnel denied providing information to Winter, a Colorado court subpoenaed her in an effort to compel her to reveal her sources.
Winter, armed with lawyers from FOX, fought the subpoena on the ground that a New York shield law allowed her to keep her sources confidential. The shield law in New York, where Winter works for FOX, is tougher than a similar law in Colorado, which allows for prosecutors to argue that reporters are complicit in violating a court’s gag order when they make public the existence of certain evidence through secret sources.
A lower court in New York issued a subpoena ordering Winter to travel to Colorado for testimony over the evidence. After an appellate court ruled against Winter, her case was brought before the New York Court of Appeals.
On Tuesday, that court determined in a 4-3 ruling that New York’s “strong public policy” offering journalists protection from prosecution with regard to sources would be “offended” if Winter was ordered to appear in Colorado.
“There is no principle more fundamental or well-established than the right of a reporter to refuse to divulge a confidential source,” Judge Victoria Graffeo wrote in the majority opinion. “As a New York(-based) reporter, Winter was aware of — and was entitled to rely on — the absolute protection embodied in our shield law when she made the promise of confidentiality that she now seeks to honor.”
In the dissenting opinion, Judge Robert Smith wrote that New York’s “Shield Law” should not have applied to Winter in this case because she did not prove her communication with her sources was conducted outside Colorado.
“The majority hold the Colorado location of the communications to be irrelevant, apparently on the ground that Winter’s office is located in New York,” Smith wrote, adding that the majority opinion seems to conclude that the Shield Law applies to New York-based journalists when they travel “anywhere in the world,” something Smith called “an excessive expansion of New York’s jurisdiction.”
Smith raised the same issue in a November 13 hearing on the case, asking Winter’s attorney Christopher Handman if it was “undisputed” that Winter communicated with her sources in Colorado.
“It’s actually not undisputed,” Handman replied. “The record says nothing about where the communication between Ms. Winter and the law enforcement sources took place.”
Handman argued that Winter’s location when she communicated with her sources for the story was irrelevant. “This is a New York journalist working for a New York news organization,” he told the court. “I think those are the key aspects of this case.”
Had the court decided against her on Tuesday, Winter would have been legally compelled to testify in Colorado on January 3. Throughout the case, Winter remained adamant that if it came to that, she would still refuse to disclose her sources — a move that the court most likely would have considered contempt, and one that could have landed her behind bars.
Instead, the court handed down a ruling in favor of Winter, setting a new precedent for New York-based journalists that publish reports born from interstate newsgathering.
“This case is over as far as Jana Winter,” her attorney Dori Hanswirth told the Associated Press. Hanswirth said she did not know if lawyers in Colorado seeking Winter’s testimony planned to contest the ruling before a federal judge, but said that a federal court would have no jurisdiction on the matter.
While the case was important enough for advocacy groups like the Society of Professional Journalists to issue statements in support of Winter’s cause, it was rarely covered by news organizations other than FOX.
FOX journalist Judith Miller, who served jail time for protecting a New York Times source that she later revealed, questioned why Winter’s case received so little coverage given what large implications the outcome could have on the industry.
“All journalists, indeed, all Americans who believe that democracy depends in part on a free and independent press have a stake in the outcome of this fight,” Miller wrote. “Now is the time to support Jana Winter.”
James Holmes, the subject of Winter’s report, is accused of murdering 12 people and wounding 70 others in a mass shooting at a movie theater two years ago. Holmes entered a plea of not guilty by reason of insanity last year; his attorneys claim the shooting was the result of a “psychotic episode.”