The Conversation

Freedom to Report: FOX News' Jana Winter Should Not Face Jail for Protecting Sources

A reporter from FOX News could go to jail if she refuses to name the confidential sources cited in an article she authored about Colorado movie theater shooter, James Holmes.

Last July, as news outlets across the country were reporting that the Colorado shooter had likely planned his attack in advance, FOX News investigative reporter Jana Winter broke the exclusive story that Holmes had mailed a notebook to a psychiatrist at the University of Colorado prior to the shootings.  The report cited a confidential law enforcement source who described a notebook "full of details about how he [Holmes] was going to kill people," with “drawings of what he was going to do in it -- drawings and illustrations of the massacre."  A second law enforcement source was cited in the same article with regards to a warrant that was issued for the package containing the notebook.

An angry defense team subsequently complained that by speaking to Winter, those confidential law enforcement sources violated a gag order. 

That order was put in place last summer, after Holmes' attorneys argued that “pre-trial publicity alone has the potential to actually deprive a defendant of a fair trial."  They filed a motion for sanctions against the prosecution after discovering that the gag order had been violated.  In a hearing last December, fourteen law enforcement officials were questioned by attorneys and the judge, according to ABC News Denver.  Since none of those questioned admitted to being the source of the leak regarding the notebook, Holmes’ attorneys then subpoenaed Winter and have demanded that she reveal her source.

The action has sparked discussion about the balance of freedom of the press versus a defendant's right to a fair trial.  It has also prompted support for Winter from first amendment organizations.

The Reporters Committee for Freedom of the Press filed an affidavit on April 8th, urging the judge in the Holmes case not to force Winter to her reveal her sources.

“Careful application of all the elements of the Colorado Press Shield Law will ensure that journalists maintain the independence they need from the judicial process to report the news,” the affidavit stated. “A court order compelling Ms. Winter to divulge her confidential sources would frustrate the ability of reporters across the state to gather the information necessary to keep the public informed about the criminal justice system.”

“This case underscores why shield laws are so important,” noted Reporters Committee Chairman Tony Mauro, U.S. Supreme Court correspondent for The National Law Journal. “When courts and litigants go after reporters’ notes and sources, it harms the ability of reporters to receive information in the public interest. And that effect chills not only the reporter in this case, but others across the state and country.”
 

Section (3) of The Colorado Press Shield Law requires that the news information subpoenaed must be directly relevant to a substantial issue involved in the proceeding, that it cannot be obtained by any other reasonable means, and that a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the first amendment to the United States constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information.

On Monday, the Judge in Colorado ruled that he would not order Winter to testify yet until he first decided whether or not the notebook would even be allowed into the case as evidence.  Holmes’ attorneys have argued that the notebook should be protected under doctor-patient confidentiality and not allowed as evidence, which would make the issue irrelevant to the case.

In addition, the court unsealed documents last Friday that revealed Holmes' psychiatrist had notified police more than a month before the shootings that Holmes was a danger to the public.

Under those circumstances, further pressing the issue of Winter’s sources would seem unnecessary and of no real use to the case itself.

While she may have received a short reprieve for the moment, Winter still faces a ruling from the judge, and if ultimately compelled to testify, her attorney has indicated that she does not intend to reveal her sources.  That means that Winter could still face jail.

Not many news outlets have to date presented much of what was written in a March affidavit that was filed by Winter.  We have therefore excerpted significant portions of it here to provide readers with Winter's first-hand account of how she believes such an action would impact her and her career, and in fact, has already had an impact.

In all of the time that I have worked as a journalist, I have always maintained my commitments to sources to keep the identities of confidential sources safe from disclosure. As a result, I enjoy an excellent reputation as an investigative journalist among my peers and, as importantly, among the sources upon whom I rely to obtain information for my reporting. If this reputation were tarnished, it would severely compromise my ability to gather news, and would assuredly result in critical reports on public issues never seeing the light of day. Indeed, as set forth in greater detail below, I have already begun to experience substantial harm to my ability to gather news from confidential sources, solely due to the public attention that has already been paid to Holmes' efforts to force me to reveal my confidential sources in this matter. I am also fearful for my safety based on numerous threatening Internet postings about my work pertaining to the Holmes case.  […]

Having to testify will jeopardize my ability perform my job both during the time that I am away and, irrevocably, in my relationships with future sources. Here, being made to testify as Holmes requests will force me to "burn" not one, but two confidential sources. My reputation as a journalist will be irreparably tarnished among my colleagues and, perhaps more importantly, my future sources. I am an investigative reporter, and one of the most fundamental truths of my profession is that most investigative reporting cannot be accomplished without confidential sources. I rely on the trust of my sources every single day. If I am forced to reveal the identities of persons whom I have promised to shield from public exposure, simply put, I will be unable to function effectively in my profession, and my career will be over. As such, my free speech rights, as well as those of my sources, will be chilled. This is not an exaggeration – it is a provable certainty. Even though I am doing everything I can within the law to exercise my right not to testify here, in the few weeks since news broke that Holmes is seeking my testimony, I have already had sources refuse to speak to me, merely because they are afraid that one day I will be subject to another subpoena like this one.  And the sources who have continued to speak to me have done so less often and have provided me with less information for my reports. Because my sources have been intimidated by the specter of Holmes' subpoena, reports have gone unwritten, and I have been thwarted in my newsgathering and in the exercise of my First Amendment rights. The public, too, has been and will continue to be deprived of access to the critical news of the day that my reporting would otherwise bring to light.

Winter’s affidavit also addresses other significant concerns, including that of harassment.

In addition to substantially impairing, and potentially destroying, my ability to do my job, the subpoena also causes other hardships.

I am very concerned that being targeted by Holmes in this way may lead to serious harm against me and my family. I read a court filing that stated that Holmes has many supporters who have been harassing the families of victims of his attack. I have also already been harassed, even without stepping foot in Colorado. I have been the subject of numerous threatening Internet postings, including one posted just yesterday that, although it does not specifically refer to the Holmes case, states "May you be one of the first killed when the next Civil War comes."  Other posts on websites for Holmes' supporters call for me to be "reprimanded" and publish my contact details. On February 24, 2013, a blog entry was posted on a website called [redacted], which contained personal photographs of myself, my father, my mother (who passed away some time ago), as well as a scary degree of detail about our personal lives. Seeing those words, and knowing the amount of time that must've gone into digging into my personal life and into my father's decades-long work history and military service, makes me fear very much for my personal safety and for that of my family.

Reporters take on risks to report the news, and those risks come in all forms.

For all those who cherish our first amendment freedoms, this is a case that deserves attention.  And Jana Winter deserves our support.

Affidavit of Winter


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