January 10, 2014

Fox News

Colo. state Sen. Bernie Herpin has proposed changes to Colorado’s reporter’s shield law, citing the case of Fox News reporter Jana Winter. New York’s highest court ruled in December that Winter didn’t have to travel to Colorado to testify in the trial of James Holmes, who is accused of carrying out the mass shooting at an Aurora movie theater.

“If you are going to be a strong supporter of the Second Amendment like I am, you have to be a strong supporter of the First Amendment — especially when it comes to the press,” Herpin told Fox. “They act as a watchdog for the people. And if confidential sources are worried about being named, they aren’t going to come forward.”

Winter in Centennial, Colo., in April 2013 (AP Photo/Ed Andrieski, File)

Colorado’s shield law allows subpoenas of reporters if the party seeking the subpoena can establish “a preponderance” of evidence that meets three tests. Herpin’s bill “changes the standard to clear and convincing evidence” and establishes four tests:

  • The information was not obtained in confidence;
  • The information is highly material and relevant;
  • The information is critical to a material issue; and
  • The information is not obtainable from another source.

Reached by email, University of Hawaii professor Gerald Kato (who is married to Poynter’s interim editor, Sandee Oshiro) said “The change from ‘preponderance of the evidence’ to ‘clear and convincing evidence’ is significant in that it creates a higher standard to overcome to enforce subpoenas.”

Herpin’s bill is “a step in the right direction since Colorado’s law made it fairly easy to obtain a subpoena as compared, say, to New York, which has one of the stronger laws in the country,” Kato — who helped draft Hawaii’s 2008 law — wrote.

Previously: Fox reporter Jana Winter doesn’t have to testify in Colorado | Changes to Hawaii’s shield law ‘ignorant of what’s going on in the media world’

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

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