The calendar would disagree, but for LASIS, summer has arrived. This Sunday our senior reporters will be graduating at Lincoln Center’s Avery Fisher Hall (we look forward to a fine commencement speech by New York City’s Mayor Michael Bloomberg). Junior reporters are finishing their final exams, and in the next week or two will begin working at human rights organizations, law firms, and media companies.

Which means, dear reader, that except for some short updates, perhaps, LASIS is officially on summer hiatus.

We look forward to resuming our legal reporting in the early fall.

Have a wonderful summer!

We recently wrote about the plight of a Fox News reporter who is being threatened with jail time for not revealing her sources. We took the opportunity to lament the absence of a federal shield law for reporters.

Though it’s a shame it took the A.P. scandal to remind our lawmakers about the importance and desirability of such a law, we’re glad a federal bill protecting reporters is being reintroduced by Senator Schumer.

An editorial in today’s New York Times says that it’s unclear at this time whether or not a federal shield law could have protected the A.P. from the administration’s intrusion.

Still, as the editorial points out: “This scandal shows that there is a desperate need for more protections of press freedoms.”

Salvador Allende, Chile’s former president and reformer, once said, “To be young and not revolutionary is a contradiction, even biologically.”

I’ve done my fair share of protesting. Back home in Puerto Rico, I’ve participated in marches, sit-ins and the 62-day shut down of my college campus protesting the government’s draconian spending cuts on education. Coming to New York for law school just as the Occupy Wall Street protests began helped calm my homesickness. This is why the story that I read recently about a Maryland high school student’s protest caught my attention.

Ever since she was in the seventh grade, 15 year old Enidris Siurano-Rodríguez of Montgomery County has chosen to sit quietly each morning while her classmates have stood and pledged allegiance to the flag. Earlier this year, one teacher told her that she had to stand. When she refused, she was taken to the principal’s office where she was asked (not too nicely) to explain why she refused to stand for the Pledge of Allegiance, according to an article in a major Puerto Rican newspaper. Ms. Siurano-Rodríguez – Puerto Rican born but living in Maryland since she was three years old – is protesting what she believes to be an “antidemocratic” political situation between the Caribbean island and the United States.

While it’s unclear whether there have been actual disciplinary measures taken against her by school officials, Ms. Siurano-Rodríguez has been told that she might be separated from the class during the Pledge of Allegiance if she refuses to participate. Can a public school do this? Are school officials legally permitted to hinder a student from quietly protesting just because it might be deemed unpatriotic? LASIS investigates.

For those of you who aren’t up on your Caribbean geopolitics: Puerto Rico is home to about four million Spanish-speaking people. The residents of the island became U.S. Citizens in 1917 (via the Jones Act) and were later granted the ability to form the Commonwealth government that exists today. While the island is self-governing, Congress still retains the power to veto any laws passed by the Puerto Rican legislature and the U.S. Constitution reigns as the supreme law of the land. The debate about whether Puerto Rico is just a dressed-up modern-day colony is as heated as ever and even the White House recently backed the idea of holding another plebiscite on the issue.

Back to the matter stateside: The law regarding the right to protest in the specific context of a school is pretty clear and has been since 1969 when the Supreme Court decided the case of Tinker v. Des Moines Independent Community School District. In this case, a number of students were disciplined for wearing black armbands to school protesting the Vietnam War. Because the Court reasoned that one does not “shed” the constitutional right of free speech “at the schoolhouse gate” the students could continue their protest. Tinker established the “substantial disruption” test that protects student protests on school grounds unless the protest is substantially and materially disruptive of the regular functions of the school. A 1986 Supreme Court case, Bethel School District v. Fraser, affirmed the decision in Tinker but limited protected protests in schools to speech that is not “lewd” or “vulgar”.

Different circuits around the country have defined exactly what this means over the years. A 2011 4th U.S. Circuit Court of Appeals case noted that mere “discomfort” or “unpleasantness” was not enough to be considered a substantial disruption. Sounds like this might be Ms. Siurano-Rodríguez’s case.

While Ms. Siurano-Rodríguez has probably not been formally disciplined yet, she has certainly been embarrassed. But, being embarrassed at school is probably not enough to get her into federal courts.

Luckily for her, Maryland has state law on the issue.

The Maryland statutes that regulate public schools have a provision requiring that the Pledge of Allegiance be recited in every classroom and by every teacher and student. There is an exception, however. Any teacher or student “who wished to be excused… shall be excused.” This exception is the product of litigation in Maryland as well as other neighboring states about the constitutionality of a law requiring everyone to pledge allegiance without exception.

And as it turns out, Ms. Siurano-Rodríguez’s county’s school system has internal regulations that go beyond Maryland’s statute in protecting a student’s right not only to not participate in “patriotic exercises” but also to be free of “embarrassment for failure to participate.”

So, it seems that this student not only has the right to protest in her school (as long as she’s not disturbing anyone) but she probably also has a good case against school officials within her state. The ACLU agrees and is backing her (and a number of other students across the country). While the original article I read about this case says that Ms. Siurano-Rodríguez and the ACLU decided to sue, they have both denied this claim elsewhere. Instead, they’ve sent school officials a letter asking for an official apology and for none of this to appear in the student’s disciplinary record.

Ms. Siurano-Rodríguez has faced criticism for living here, benefiting from the  American way of life and education, and viewing Puerto Rico as her country.

She’s not the first to feel that way, though, and there are probably good arguments on both sides.  We couldn’t resist closing with a musical version of both sides of the debate.

It’s a lively debate, but it’s clear that Ms. Siurano –Rodriguez has the law on her side.

Two of our nation’s prominent defense attorney shine a light on what really goes on inside a courtroom in a new book titled tilted, “Mistrial.”

Written by Mark Geragos and Pat Harris, the book (getting lots of buzz) is a “searing and entertaining manifesto on the ills of the criminal justice system.”

LASIS has a copy of the new book to give away to one lucky reader.

Send an email with your name and address to legalassheisspoke@gmail.com before 5pm on Wednesday, May 1.

The winner will be chosen in a random drawing.

UPDATE, May 1, 2013:  Congratulations to Veronica Guzman Willis of San Pedro, California on winning a copy of “Mistrial”!

Professor James Tracy from Florida Atlantic University (FAU) is at it again. In February, LASIS reporter Jennifer Williams told us  that Dr. Tracy had taken to his personal blog to question how real the Sandy Hook massacre was. And now, he has set his sights on the Boston bombings writing that the explosions were some kind of drill carried out by the government.

An excerpt from Dr. Tracy’s blog: “In short, the event closely resembles a mass-casualty drill, which for training purposes are designed to be as lifelike as possible. Since it is mediated, however, and primarily experienced from afar through the careful assemblage of words, images, and the official pronouncements and commentary of celebrity journalists, it has the semblance of being for all practical purposes ‘real.’”

Dr. Tracy then offers what he calls “photographic evidence” to support his position and to suggest that actors could be seen getting into position after the explosions.

FAU quickly distanced itself from Dr. Tracy’s statements. “As with all postings on his personal blog, Florida Atlantic University does not agree with Mr. Tracy’s views or opinions,” a statement from FAU spokeswoman Lisa Metcalf said. “The university stands with the rest of the country in our support of the victims of the Boston Marathon tragedy.”

We’d love to hear from any of Dr. Tracy’s students.  What kind of instructor is this man, who spouts what we think can fairly be described as loony, and despicable, conspiracy theories?

Last year, in article entitled “Losing My Religion,” LASIS reported on four British employees who brought religious discrimination claims against their employers and lost all the way up through their country’s highest court. Their last recourse was the European Court of Human Rights that decided the four cases this January. Was it a happy ending for these lethargic litigants? As it turns out, the only Cinderella story here is that of Nadia Eweida, who wanted to wear a cross on a chain at her airline job.

This British Airways check-in clerk was awarded €32,000 which the government will have to pay (because that’s who she sued). In its judgment, the court stated that while companies have a right to project their desired image through employee uniforms, this right cannot trump an employee’s right to wear religious icons – to a degree. The decision is not entirely clear, and lawyers in Britain are battling over what it means for everyone else going forward. Meanwhile, the court has received twitter praise from Prime Minister David Cameron who tweeted that “ppl shouldn’t suffer discrimination due to religious beliefs.”

On March 26 and 27, the Supreme Court heard oral argument in United States v. Windsor — the case which addresses the constitutionality of Defense of Marriage Act. The question is whether Section 3 of the Act, which defines the term “marriage” as “a legal union between one man and one woman as husband and wife,” deprives same–sex couples who are lawfully married under the laws of their states (such as New York) of equal protection, as guaranteed by the Fifth Amendment.

In 2007, Edith Windsor, a New Yorker, married her same–sex partner of over 40 years, Thea Spyer, in Canada. Dr. Spyer died two years after the marriage and left her entire estate to her wife — along with a hefty federal estate tax bill of $363,000 — a tax that Ms. Windsor would have avoided had she been married to a man.

And then there are problems for gay people on the other end of the marriage spectrum. New York Magazine recently published an article that addresses same-sex couples who are unprepared for the legalities involved in divorce.

LASIS further develops the consequences of both the marriage and divorce issues that lie ahead for same sex–couples.

Consider this: Boy from Alabama meets Boy from Florida (two states whose constitutions ban same–sex marriage) while vacationing in the Big Apple. The two fall madly in love and decide to get married right then and there. Is this even possible in light of the fact that both of them live out–of–state and are merely passing through New York? Yes! While New York may have been the sixth state to approve gay marriage, it was the first not to include any residency requirements for marriage. This means that any same–sex couple may travel to New York State and enter into a legally binding marriage. But this boy meets boy story isn’t over just quite yet…

After the vacation is over, boy and boy head back to their respective states, pack up all of their belongings and head for Texas (another state whose constitution bans same–sex marriage) to start their new life together. All is well during the honeymoon phase, but before long the boys realize that they rushed into their marriage, made a terrible mistake, and all things being equal, want a divorce. They rush down to the courthouse only to find that the doors are closed… Texas doesn’t recognize same–sex marriages and will not grant them a divorce.

The couple then hurries to the airport and hops on the next flight to New York.

Surely the state that married them will divorce them, right?

Wrong.

Even though New York does not have any residency requirements for marriage, it, like most states, has a residency requirement for a divorce. New York Domestic Relations Law §230 would require one of the boys to have resided in the state for a continuous period of one year prior to filing for divorce.

The couple is essentially trapped. They are stuck in a marriage that neither wants to be in. In the words of Susan Sommer, director of constitutional litigation for Lambda Legal, the situation “gives wedlock a whole new meaning.”

Unable to obtain a divorce, the couple decides to just “forget” about the marriage and go their separate ways. One stays in Texas and the other moves out to Vermont (a state, like New York, which recognizes same–sex couples).

The boy who moves to Vermont longs for companionship and soon finds a special someone on Grindr. The two fall in love, move in together, and get married in Vermont. Happy ending, right? Wrong. Not only is the Vermont marriage void due to the existing New York marriage, but boy is now possibly facing criminal prosecution and prison time pursuant to Vermont Statutes Annotated §206 (bigamy). Meanwhile, our boy down in the Lone Star state finds himself a new soul mate on Tinder. He too falls in love and moves in with his boyfriend.

Uh-oh, right?  Nope — because Texas doesn’t recognize same–sex marriages, Texas Penal Code §25.01 (bigamy) is inapplicable. He’s safe.

Or consider the possibility that our boy in Vermont gets into a terrible car accident, is on his deathbed, and is unable to make end–of–life decisions. His “ex” in Texas, the “spouse” of the injured (remember we’re in Vermont, a state which recognizes same–sex couples), is legally likely to be the one who has the power to decide whether or not to “pull the plug.” In the eyes of Vermont law, after all, they are still married. Who better than your bitter, out–of–state “ex” whom you haven’t spoken to in years to make this decision?

Lastly, while on the topic, consider the ramifications associated with the distribution of property at death. Worst case scenario is that neither of the boys has a will or has had any children. In that situation his estate goes to his “ex” whom he hasn’t spoken to in years.

Best case scenario is not much better than that: each boy has devised a will that disinherits his spouse. Despite these wills expressing the clear intentions of the deceased, because there’s been no legal divorce, the living boy is likely entitled to spousal election — a percentage of the decedent’s estate. In New York, for example, EPTL §5-1.1 states that the elective share is the greater of $50,000 or one third of the net estate.

If the Supremes strike down DOMA’s definition of marriage, these issues may be resolved. But even, even if the Federal definition of marriage remains as is, LASIS believes that there is still hope for same–sex couples seeking divorce.

A no–fault divorce permits a marriage to dissolve without the demonstration of a wrongdoing by either party. While many argue that this provides an avenue for a “quickie divorce,” it was a much–needed remedy to a nationwide problem. Prior to no–fault, couples had to prove that a ground existed in order to receive a divorce. Grounds included: cruel and inhumane treatment, abandonment, imprisonment, and adultery. As you can imagine, many, if not most couples seeking divorce were unable to satisfy any of these grounds as falling out–of–love or simply growing tired of your spouse was insufficient. These folks, similar to current day same–sex couples, were unable to obtain a divorce and were trapped in their marriages.

In response, California, in 1970, introduced the Family Law Act of 1970 and pioneered the theme of “irreconcilable differences” or a “no–fault divorce.” Soon thereafter, states across the nation began hopping on the no–fault bandwagon and in 2010 New York became the 50th state to adopt the no–fault ground for divorce. Heterosexual couples across the nation are no longer burdened by rigid divorce requirements and are free to separate.

While it did take 30 years for the nation as a whole to provide an avenue of divorce for these otherwise blocked heterosexual couples, it serves as a faint breath of fresh air that should the language of DOMA remain, change is still possible. What that change could include is relaxed residency requirements for divorce, or for divorce purposes only, quasi–recognition of same–sex marriages by states which do not otherwise recognize same–sex marriages.

With news breaking last month that Amazon has a patent to resell e-books, consumers smiled and authors worriedly reviewed the contents of their savings accounts. Earlier this month, attorney and bestselling author Scott Turow wrote an opinion piece in the New York Times stating that the practice of reselling such an item will most likely be “ruled illegal.”

I share his optimism.  But only because our laws are so far behind Europe’s.

If a realm existed more poorly regulated and filled with bad law than the internet, I’d love to see it. We have reactionary legislation from people who don’t know how to turn on their computer, case law decided by judges perplexed by futuristic terms like “modem,” and an army of users content to make up their own interpretations of the law and let it spread like wildfire. This misinterpretation of the law is then repeated on various online forums until it is recited with more bravado than Gaston, mocking any who dare to disagree, even when the dissenters are correct.  Well, get on your chuckle boots, internet, because you’re about to be educated.

When you purchase an e-book, you aren’t actually buying that e-book; you are obtaining a license to display it on your e-reader. This is important; because you haven’t purchased anything but a license, you have nothing to resell (besides maybe that license, but we’ll get into that later).

So to be clear, when it comes to e-books, you do not own what you are buying.

Potential resellers of used e-books around the internet have touted the First Sale Doctrine as a means of protection for their actions, but they are deluded. The First Sale Doctrine is a bit of law that was developed in a 1908 US Supreme Court case that decided publishers could not limit the re-sale of copyrighted materials that had been legitimately purchased. It’s what allows you to lend, resell, or gift items you’ve bought. Basically, the theory goes, you buy it, you own it, you can do what you like with it.

This doctrine, however, was created in the Pleistocene age, in which reading material was restricted to print and hardcopies.

The doctrine was updated in 1976 under Title 17 § 109 of the United States Code in order to try and keep up with new technologies, in particular, cassette recorders used to bootleg various music. The update protected the resale of music albums, but made it illegal to make copies of them.

Now we find ourselves with another bit of new technology, e-books, and no updated law. But, even an update saying specifically, “e-books are okay to resell,” might mean nothing because, again, you do not own the e-books you buy, you are just licensing them.

Same issue, new medium. Video gamers are familiar with the legal battle between rental and ownership, it being illegal to try to resell software purchased on video game networks such as Steam. Books and videogames are treated the same way under the law  – whether in hard copies or downloads. The 9^th Circuit made it clear in 2010:

“We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.”

And for now, that appears to be that. The Supreme Court refused to hear the appeal from that case and it is experts widely believe that the 9^th Circuit’s ruling is good law.

And while American consumers and would-be owners may sit steaming mad, things are different for our European friends.

The European Court of Justice held last July that even if you are only buying a license, that license is re-sellable. The case was a battle between a company trying to create a marketplace to resell used software and Oracle, a game company, which argued, as online retailers do, that its license agreement clearly states that the licenses it sells cannot be resold. The Court decided that once you sell something you have “exhausted” your right to control it.

This seems to be the common sense answer and is probably a good sign of things to come. Many companies have started adopting resell policies, even one specifically for e-books, allowing you to sell used e-books as long as you completely delete all copies you have yourself. (Something the European Court demanded in its ruling, too.)

Here in the U.S., though, we will have to sit back once again and wait for our laws to catch up to our technology. It’s a painful process, but it’s all we can do. Slow down scientists, our legislators can’t keep up.

Born with male organs, Coy Mathis began identifying as a girl at the tender age of 18 months.

Today she is six years old, and while attending Eagleside Elementary School in Colorado, was using the girls’ restroom for over a year; the Fountain-Fort Carson School District 8 policy states that students “shall have access to the restroom that corresponds to their gender identity consistently asserted at school.”

Then, in December, the district sent a letter to the Mathis family, stating that, “as Coy grows older and his male genitals develop along with the rest of his body, at least some parents and students are likely to become uncomfortable with his continued use of the girls’ restroom.”

The district wants Coy to use the boys’ restroom, or barring that, a gender-neutral restroom (that it concedes is not near the others).

The Mathis family is suing. LASIS investigates.

Michael Silverman, the Executive Director of the Transgender Legal Defense and Education Fund, filed a complaint on behalf of the Mathis family with the Colorado Civil Rights Division. This is the first case to challenge a restriction on a transgender student’s bathroom use under Colorado’s Anti-Discrimination Act, which prohibits gender-identity discrimination in public schools.

Mr. Silverman argues that, “by forcing Coy to use a different bathroom than all the other girls, Coy’s school is targeting her for stigma, bullying and harassment.” W. Kelly Dude, the school district’s attorney, states that, the district was respecting the law: Coy attends class as all the other students, is permitted to wear girls’ clothes and is referred to as the parents have requested.” But, he continues, the law doesn’t mandate that the school allow Coy to share a bathroom with the girls. That, he says, is going too far, and was not specified in the statute.

The state’s Civil Rights Division determines whether a student’s rights have been violated. If either the family or the school district disagrees with the ruling, it may be appealed in court. And it is difficult to predict what will happen in this case, because legal standards remain murky and vary drastically from state to state.

For example, last year, in Doe v. Clenchy, a Maine court held that a school district did not violate a transgender student’s rights under the Maine Human Rights Act when she was told she could no longer use the girls’ restroom. While the judge expressed that the law “casts a broad stroke where one more delicate and refined is needed,” the decision to segregate restrooms by sex was expressly permitted by regulation. The decision is being appealed.

Two other courts have held that restricting restroom usage on the basis of biological sex didn’t violate transgender individuals’ rights – even though no state regulation expressly permitted it.

In Goins v. West Group, the court found that that an employer’s enforcement of a policy on restroom use according to biological gender (along with the offer to the transgender plaintiff-employee of a single occupancy restroom) did not violate Minnesota’s discrimination statute. Similarly, in Hispanic Aids Forum v. Estate of Bruno, the New York Supreme Court denied relief to a tenant who asserted that a lease provision requiring him to prohibit transgender persons from using restrooms of their gender identity amounted to discrimination. Both decisions were based on the view that restroom designation by gender is a traditional practice that is not grounded on sexual orientation discrimination

While New York bars discrimination based on sexual orientation, gender-identity is only protected within the realm of public employment. Colorado goes further, barring gender-identity discrimination in employment, housing, and public accommodations. Colorado is one of 10 states that specifically prohibit gender-identity discrimination in public schools.

Currently, over 100 cities and 16 states (and the District of Columbia) offer some form of legal protections for transgender people, many of which extend to schools.

In November 2012, Colleen Francis, a 45 year-old transgender student at a Washington college was asked by police to leave the women’s locker room after exposing male genitals to high-school girls using the facility.

Ms. Francis was indignant. “This is not 1959 Alabama … We don’t call police for drinking from the wrong water fountain,” she said. But David Hacker, Senior Counsel for the Alliance Defending Freedom was unmoved, and stated firmly that “little girls should not be exposed to naked men, period.”  Ms. Francis was not permitted back into the women’s locker room.

Many people feel that females, young ones especially, have the right to privacy in sex-segregated areas of public nudity. A Helena, Montana non-discrimination ordinance embraces this view and requires facilities designated for one’s anatomical sex to be used where people ordinarily appear in the nude, regardless of gender identity.

For others, public nudity exemptions and restrictive school restroom bans place transgender people in a no man’s land, and possible danger. Using public restrooms when their outward appearance doesn’t conform to common gender expectations puts them at greater risk of being confronted, challenged, or even attacked.

Sometimes, state or county discrimination protections conflict with school policy. In March 2012, the University of Pittsburgh dictated that transgender students could only use bathrooms that correspond to the gender on their birth certificate even though the county identifies one’s gender by how one’s life is lived and how one is perceived by others.

Most states only allow birth certificate changes to gender with sexual reassignment surgery – an expensive procedure. Some don’t permit birth certificate changes at all, such as Tennessee. In January, an anti-transgender “bathroom bill” was introduced there that would have imposed a $50 fine for anyone using a restroom not matching one’s biological gender. It died before passage.

Other states have no anti-discrimination statute at all. Under Virginia’s Dillon Rule, issue local municipalities are prohibited from enacting measures on the issue without the state’s permission.

In states where no protections exist, school districts have become more amenable to solutions that help integrate transgender students when a dispute arises. The Massachusetts Department of Elementary and Secondary Education recommends that transgender students be permitted to use bathrooms that conform to their gender identity. The department’s guidelines state that the discomfort of other students is not sufficient reason to accommodate the transgender student, and that “administrators and counseling staff should work with students to address the discomfort and…foster understanding of gender identity, to create a school culture that respects and values all students.”

But District 8 in Colorado feels differently.  It’s anyone’s guess how the case will turn out, though we think it likely that the Colorado district’s judgment will stand.

In the meantime, unless she is permitted to use the girls’ restroom. Coy Mathis will not return to Eagleside.  She is being homeschooled.

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.