Sunday, April 28, 2013

Fox News Facing First Amendment Battle

FoxNews’ Jana Winter is facing an uphill battle that many are saying could have enormous implications for the First Amendment and journalists everywhere.

Winter, a reporter for, was covering the trial of Aurora, CO shooter James Holmes when she broke an exclusive story on a piece of evidence pertaining to the case- a notebook that Holmes sent to his psychiatrist, FOX News says. Winter refused to reveal her source to authorities, prompting outrage from Holmes’ defense and victory cries from First Amendment champions.

Winter, who was questioned by Arapahoe County District Judge Carlos Samour, has been ordered to appear in court again on April 10th for another round of questioning from Samour, who had issued a gag order on material pertaining to the case. Winter has been threatened with jail time if she does not reveal her source, and could be put on the stand in efforts to compel her to reveal the information.

It’s a monumental, but, unfortunately, all too familiar case for journalists who are balancing the fuzzy lines that define confidentiality privilege. You can almost hear the echoes of the Scooter Libby case, when New York Times reporter Judith Miller (who, ironically, is now a contributor at Fox News) nobly refused to reveal her source as officials searched for those responsible for CIA-agent Valerie Plame’s identity leak. Unless FOX legal counsel can substantially prove that Winters’ testimony bears no weight on the case, the seasoned reporter could be asked to sacrifice her journalistic integrity. If she refuses, she’ll almost certainly face jail time, just as Miller spent 85 days incarcerated for maintaining her sources’ confidentiality. 

Despite all the uproar, Colorado has a protective shield law, which was recently amended to offer even more protection for journalists (Read it here). The law states that journalists can be subpoenaed to reveal documents or information only if one of the following three statements applies:
1)    The information sought from the reporter is "directly relevant to a substantial issue involved in the proceeding," 

(2)    The information "cannot be obtained through any other reasonable means,"

(3)    A strong interest of the party issuing the subpoena outweighs the interests under the First Amendment of the reporter and the public.

Despite the incendiary nature of the case, mainstream media has been oddly mum on Winters’ case, especially considering the implications her plight could have for journalists nationwide. Critics have suggested that the journalistic haze that surrounds the FOX network could be to blame. Miller speculated that if her FOX colleague “worked for mainstream newspapers or CNN, I think the case would have been covered. There's a certain reluctance because it's Fox News."

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