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Fox News reporter finalizes First Amendment shield law victory

May 27, 2014 by NCC Staff


On Tuesday, the Supreme Court refused to take on an appeal of a victory won by Fox News reporter Jana Winter  last December, in a case that challenged journalists’ First Amendment rights to protect sources.

Wikicommons: Rae Whitlock

The high Court, declined without comment, the case of Holmes v. Winter, effectively ending efforts from lawyers representing accused killer James Holmes to find out who gave Jana Winter, a Fox News reporter, a notebook containing potential evidence.

Holmes’ attorneys submitted the appeal request in March 2014, after losing a decision in New York’s Court of Appeals in December.

Winter had faced jail time in Colorado for refusing to name a confidential source in her reporting of the July 2012 Aurora movie theater shooting. After the incident, Winter reported that the accused killer, Holmes, had sent a notebook containing disturbing images to his psychiatrist.

Winter’s news report appeared after a judge in Colorado imposed a gag order on the case. In January 2013, the court in Arapahoe County, Colo., where Holmes is being tried, concluded there was substantial evidence that unnamed law enforcement officials in Winter’s story had violated the gag order by giving her information.

Winter, as an employee of Fox News and its parent company News Corp., is based in New York City. The Colorado court asked New York to file a subpoena there, to compel Winter to travel to Colorado to testify, or possibly spend time in jail if she refused to name her sources.

Winter then filed a motion in Colorado to quash the subpoena, after a court in New York approved Colorado’s request. That set in motion an appeals process in New York since, courts in both states needed to approve the subpoena, to compel Winter to testify.

Colorado and New York have shield laws that protect reporters from revealing sources. The Colorado law provides limited protection for journalists, since it only requires that a party in a case prove that evidence is “directly relevant” as required in the Supreme Court’s Branzburg v. Hayes decision from 1972.

New York state requires a much higher standard of proof—the evidence has to be so “critical or necessary” as to decide the entire case. It is considered an “absolute privilege” law.

The New York Supreme Court Appellate Division court ruled in a 3-2 verdict against Winter in August 2013, and it said that Colorado’s weaker law took precedence. But New York’s highest court overturned the decision by a 4-3 vote, pointing out the state’s history of protecting journalists dates back to before the Constitution.

The Court of Appeals alluded to the case of printer John Peter Zenger, who was tried for publishing articles the criticized New York’s governor – in 1735, and acquitted.

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