November 12, 2013

Times Union | Associated Press | Business Insider

The New York State Court of Appeals will take up the case of Fox News reporter Jana Winter Tuesday afternoon. At issue is whether Winter, who covered the theater shootings in Aurora, Colo., should be compelled to give up her source of a notebook from accused shooter James Holmes. Holmes’ attorneys want Winter to travel to Colorado to testify; she will go to jail rather than do so, one of her attorneys tells Robert Gavin of the (Albany, N.Y.) Times Union.

A New York appellate court this summer upheld a subpoena for Winter that another New York judge signed earlier this year.

The only issue before the court in New York is whether there is a singular class of citizens who are immune to subpoenas,” Holmes’ attorney Daniel Arshack told the Associated Press. Holmes’ attorneys argue their case further in a reply brief filed at the end of September: “Winter and her sources served the united and focused illegitimate purpose of undermining the fundamental fairness of what is now a death penalty prosecution,” they write.

Winter’s gloomy suggestion that her career will be derailed by complying with the subpoena is more baseless speculation based, again, on nothing but air. As will be discussed below, the opposite is far more likely. Many journalists who have complied with their legal duty to appear as witnesses subject to subpoenas have gone on to have spectacular careers… some at Fox News!

Winter is claiming protection under New York’s expansive shield law. But “if the Court in New York was to unilaterally decide that one class of citizens is immune from being subpoenaed to another state, we could expect that other states could likewise define safe no-subpoena-zones for various types of citizens that they particularly cherish: oilmen in Texas, movie stars in California, gamblers in Nevada, socialists in Vermont… the list could go on,” Holmes argues.

In their reply, filed in early October, Winter’s attorneys say Holmes’ brief “seeks to relitigate a foundational issue that this Court squarely resolved nearly 30 years ago.” In New York, they note, “no criminal defendant who stands trial in New York’s courts is able to compel a reporter to reveal her confidential sources because the Shield Law categorically immunizes reporters from such compulsion. And yet New York still manages to provide its defendants with procedurally fair trials.”

Subpoenaing a reporter for her sources “will—invariably—chill press freedom and jeopardize that reporter’s career,” they argue. Winter has been “unable to report on stories regarding national security and other important topics because her sources refuse to talk to her, specifically citing the pendency of these proceedings,” they write.

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Andrew Beaujon reported on the media for Poynter from 2012 to 2015. He was previously arts editor at and managing editor of Washington City…
Andrew Beaujon

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