NY Court of Appeals to Rule on Journalist Subpoenaed to Testify in Colorado Theater Shooting Case


Home / NY Court of Appeals to Rule on Journalist Subpoenaed to Testify in Colorado Theater Shooting Case
Fox News Reporter Jana Winter may have to reveal sources in Colorado theater shooting. Credit: Inside Cable News

Fox News Reporter Jana Winter may have to reveal sources in Colorado theater shooting. Credit: Inside Cable News

On July 20, 2012, a gunman entered a movie theatre in Aurora, Colorado having a midnight showing The Dark Knight Rises. He opened fire, killing 12 moviegoers and injuring 70 others. Police arrested James Holmes, the alleged gunman, outside the theater and charged him with the crimes. His attorneys have indicated he will raise insanity as a defence.

Jana Winter Covered the Colorado Theatre Shooting for Fox News

Jana Winter, a reporter for Fox News in New York City, went to Aurora in the aftermath of the shooting to cover the story for her employer. Five days after the mass murder, Winter broke an exclusive story.

Winter reported that prior to shooting, the suspect Holmes sent a notebook to a psychologist at the University of Colorado. The notebook detailed how Holmes was planning to kill a bunch of people and contained drawings of a stick figure shooting other stick figures.

According to Winter, she got that information from two law enforcement officials. The officials do not want to be identified and the reporter is fighting to protect her sources. What are Winter’s rights, as a journalist?

Winter Case Now Before NY Court of Appeals

Winter has been subpoenaed to appear in a Colorado courtroom on January 3, 2014 to testify at a pre-trial hearing. Holmes’ trial is scheduled to begin the following month. Attorneys for Holmes say the notebook was never intended to become public and the fact it was interferes with their client’s right to obtain a fair trial.

A Manhattan judge issued a subpoena to compel Winter’s appearance, rejecting the argument that the ‘shield law’ protects Winter. She appealed that ruling to another court that affirmed the decision, although the panel was split, 3-2.

Winter then appealed the decision of the lower appellate court to the New York Court of Appeals. That court heard arguments on November 12, 2013 but has not yet issued a ruling.

If the appellate court confirms the decisions of the lower courts, Winter will either have to go to Colorado, testify and reveal her sources, or face contempt of court charges. If she is found in contempt, she most likely will go to jail.

Reporters Rights Under Shield Laws Not Always Absolute

While many people think reporters have an absolute right not to reveal their sources, this is not the case. In 1972, the Supreme Court of the United States handed down its decision in Branzburg v. Hayes. In that case reporters were trying to avoid testifying before a grand jury in a case they were covering.

In a 5-4 decision, the court refused to quash the subpoenas and ruled the reporters had to testify. The majority found that reporters had the same duties as ordinary citizens but with narrow exceptions. Under the First Amendment, reporters can be exempted from testifying if by doing so, their safety or the safety of their sources, would be at risk.

The dissenting justices ruled forcing reporters to testify would violate the First Amendment because it would inhibit freedom of the press.

The decision in Branzburg also said states have the power to enact shield laws. Every state, with the exception of Wyoming, has enacted such a law… But the shield laws differ from state to state.

Shield Laws Vary from State to State

New York has one of the strongest shield laws in the country. The law states the risk of imprisonment for contempt for a journalist who refuses to reveal sources significantly reduces the ability of a reporter to gather information to impart to the public.

The New York courts are dealing with the matter because Winter is a resident of that state. If the subpoena is upheld, she will be required to leave New York and travel to Colorado to testify. But because the request for a subpoena was made by a party in Colorado, it is Colorado’s shield law the New York judges must apply.

Colorado has one of the weakest shield laws in the U.S. – unlike in New York, the court can compel reporters to testify and reveal their sources if the testimony is “directly relevant to a substantive issue” and the party requesting the subpoena has exhausted all other ways to get the needed information.

The substantive issue in this case is whether or not Holmes can get a fair trial after Winter revealed the fact of the notebook and its content. And Holmes’ attorneys argue they have exhausted all other methods of securing the information. They have asked all law enforcement officers in a position to know about the notebook and all of them denied they provided the information to Winter. This was the rationale in the lower courts for upholding the Colorado subpoena.

Some are advocating a national shield law that would apply uniformly throughout the country.

Winter Vows Not to Reveal Sources

Fox News reports their journalist is determined not to give up her sources because it would finish her as a reporter. She could realistically end up in jail as Judith Miller did. Miller, a former New York Times reporter, was incarcerated for 85 days after refusing to reveal her sources in the investigation into the CIA leak concerning Valerie Plame.

Winter’s lawyers are arguing Holmes’ attorneys have not exhausted all methods in order to determine who provided the journalist with the information about the notebook.

The New York Court of Appeals is expected to hand down its decision in December.


Case Briefs. Branzburg v. Hayes. (2013). Accessed November 13, 2013.

The Wrap. FoxNews.com Reporter To Argue For Shield Law Protection Over James Holmes Story. (2013). Accessed November 13, 2013.

Business Insider. A Court Case That No One’s Talking About Could Have Huge Implications for Every Journalist in America. (2013). Accessed November 13, 2013.

The New York Observer. Shield Law More Like a Cheap Umbrella. (2013). Accessed November 13, 2013.

Fox News. Accused shooter’s attorney creates sideshow by targeting Fox reporter. (2013). Accessed November 13, 2013.

Albany Times Union. Editorial: For a national shield law. (2013). Accessed November 13, 2013.

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