A Journalist’s Right to Remain Silent

By Jennifer Williams

Journalists connect us to places, times, and events that we would otherwise know nothing about. They tell us what to talk about. What to think about. Sometimes, they take us places we wouldn’t travel to were it not for them. Christopher Hitchens let us experience waterboarding. Julius Chambers let us struggle with him at the Bloomingdale Insane Asylum. Sometimes, they even change the course of history. Bob Woodward and Carl Bernstein uncovered one of the biggest political scandals in American history. Their work directly led to the resignation of a president.

But this incredible power comes with risks. Journalists may only be able to break a story by relying on sources who speak on the condition of anonymity. And though there are laws that help protect journalists and their sources, called shield laws, they’re not foolproof. In 2006, Josh Wolf, a freelance journalist, spent 226 days in jail for refusing to hand over video footage that law enforcement authorities said depicted protestors damaging a police car. Judith Miller, formerly of The New York Times, spent 85 days in jail after failing to reveal her source in leaking the identity of a CIA agent in 2005.

And now, Jana Winter is staring down jail time in the name of protecting her sources. Fox News sent Ms. Winter to Aurora, Colorado to cover James Holmes and the July, 2012 movie theater shooting. Later that month she broke an exclusive story about a notebook that Mr. Holmes had sent to a University of Colorado psychiatrist, which, contained “details about how he was going to kill people.”

She learned this from a source within law enforcement to whom she guaranteed anonymity.

If she hadn’t, she wouldn’t have had the story. We wouldn’t have had the story.

Mr. Holmes’ attorneys now claim that the killer’s Sixth Amendment right to a fair trial, as well as a court ordered gag order, were violated by Ms. Winter’s reporting. They’re hoping that Arapahoe County District Judge Carlos Samour, Jr. will offer Ms. Winter two choices: reveal your sources — or go to jail.

While Judge Samour has delayed the decision pending a determination of whether the notebook will be admissible as evidence in Mr. Holmes’ trial, there may come a day when Ms. Winter will be asked by a court to reveal the identity of her sources. Should she have to? No. But is the law on her side? LASIS investigates.

Shield laws offer journalists the privilege to protect sources of confidential information obtained in their professional capacity. Although there is no federal shield law protecting journalists, most states have enacted these laws based on the First Amendment guarantee of freedom of the press. These laws vary from state to state in their level of protection.

Ms. Winter, who lives and works in New York, would like to be covered by New York’s shield law, which affords a journalist absolute protection.

Colorado’s shield law grants journalists only a qualified protection, though it is still quite broad. It states that “no newsperson shall, without such newsperson’s express consent, be compelled to disclose, be examined concerning refusal to disclose, be subjected to any legal presumption of any kind, or be cited, held in contempt, punished, or subjected to any sanction in any judicial proceedings for refusal to disclose any news information received, observed, procured, processed, prepared, written, or edited by a newsperson, while acting in the capacity of a newsperson.”

But the privilege can be defeated if it can be shown that: (a) the news information is directly relevant to a substantial issue involved in the case; (b) the information cannot be obtained by any other reasonable means; and (c) the interest in obtaining the information outweighs and First Amendment interest of the newsperson.

Mr. Holmes’ attorneys are arguing — well, it’s not really clear what their argument is.

Mr. Holmes is being tried for multiple murders, and the evidence is clear he committed them. The identity of the person who fed Ms. Winter the information about the existence and contents of the notebook does not involve a substantial issue in Mr. Holmes’s murder trial. Not even if down the road he pleads insanity.

Which means the only chance of defeating Ms. Winter’s privilege is out the window from the get-go. There are just no two ways about it. Ms. Winter should not be made to reveal her sources, not even under the qualified immunity standard of the Colorado law.

As little comfort as this may provide, LASIS is 100% behind you, Ms. Winter.

Editor’s Note:  An earlier version of this story spoke of the identity of Ms. Winter’s source having no effect on the outcome of the trial, rather than it not bearing on a “substantial issue” in the case.  LASIS regrets the error.

UPDATE  – December 10, 2013:  Ms. Winter has the right to remain silent.



3 Responses



  2. Anonymous Source says:

    The article has a nice sentiment, but leaves me with more questions than answers. I know it’s near finals (good luck!) so don’t feel obligated to respond…but:

    (1) Which Shield law applies? My instinct is that the state in which the reporter resides is totally irrelevant, since a contempt proceeding — the procedure for punishing Ms. Winter for failing to testify — would take place in the same court where Mr. Holmes is being tried. New York laws obviously have no application in Colorado courts.

    (2) I don’t understand why the author’s analysis is based on the source’s relevance to the “outcome of the trial” when the standard cited is whether the identity of the source is “directly relevant to a substantial issue.” There is a difference between the two standards, especially here, where there is such a substantial amount of evidence linking Mr. Holmes to the massacre, outside of the notebook. For example, if the police officer who secured the warrant for the notebook was the leaker, his violation of the gag order (and police confidentiality rules) is plainly relevant to a substantial issue — i.e., the defense’s motion to suppress the notebook as evidence. (It’s character evidence regarding the officer’s trustworthiness, animus towards Mr. Holmes.) Now the admission of the notebook may not be particularly important in the outcome of the trial — Mr. Holmes will likely be found guilty either way — but Ms. Winter’s application of the shield law is likely different.

  3. Editors says:

    @ Anonymous Source:

    (1) We only meant to say that Ms. Winter would prefer that NY shield laws apply. They shouldn’t, but we understand that she likes those laws better than the ones she’ll be subject to in CO.

    (2) We erred in writing about the ‘outcome of the trial’ and have revised our article. We believe, though, that no matter the source, the identity won’t prove to be a substantial issue (though we appreciate your comment and explanation of how it could be seen to be).

    And thanks for your good wishes on finals which are fast approaching!

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