Soon after the movie theater shooting in Aurora, Colorado, that killed 12 and left 58 injured, Jana Winter, a reporter for FoxNews.com, wrangled an explosive scoop. According to two “law enforcement sources,” Winter reported, alleged gunman James Holmes had sent a University of Colorado psychiatrist a notebook previewing the grisly details of his attack, including a drawing of a gun-wielding stick figure going on a rampage. Plus, Winter reported, the package never reached the psychiatrist but got stuck in the university’s mailroom.
Now, as Holmes is set to face trial, Winter could be facing jail time as well.
That’s because her scoop came after Arapahoe County District Court Judge William Sylvester issued a gag order on all participants in the proceedings. By tipping off Winter, the two law enforcement personnel may have violated that order, and the judge has demanded that she disclose the identities of her anonymous sources.
A hearing on whether Winter will be forced to testify had been slated for Wednesday but was deferred by a judge on Monday evening. District Court Judge Carlos Samour Jr. ruled that he must decide whether Holmes’s notebook is admissible as evidence in the alleged shooter’s trial before ruling on whether Winter will be forced to testify. If she is, and she fails to give up her sources, Winter could face up to six months in prison.
“In all of the time that I have worked as a journalist, I have always maintained my commitments to sources to keep the identities of confidential sources safe from disclosure,” Winter said in an affidavit filed with the court. “As a result, I enjoy an excellent reputation as an investigative journalist among my peers, and, as importantly, among the sources upon whom I rely to obtain information for my reporting. If this reputation were tarnished, it would severely compromise my ability to gather news, and would assuredly result in critical reports on public issues never seeing the light of the day.”
Colorado does have a shield law that protects journalists from disclosing the identities of their confidential sources, but the law has loopholes that, among other provisions, force the reporter to give up names if the information is considered vital to the trial. Winter’s attorneys have argued that her testimony is not “directly relevant” to Holmes’s alleged crime and that revealing her sources would destroy her career; her supporters believe that the judge issued the order in a fit of pique at having his gag order ignored. Winter’s detractors, however, and attorneys for Holmes have argued that if local law enforcement personnel leaked the confidential details of the diary, they did so to sway public opinion against the alleged shooter. And any member of law enforcement who leaked the contents of the notebook to sway public opinion—and a potential jury member—could then be called to testify in a trial that will decide whether Holmes is sentenced to death.
The judge “has said that he recognized that a resolution of Holmes’s motion here could result in Jana facing what he described as a Hobson’s choice between burning her sources, and thus destroying her career, or facing punishment for contempt of court,” said Dori Ann Hanswirth, Winter’s attorney.
Advocates of a free and open press and experts in First Amendment law have argued that Winter should not be required by the court to give up her sources.
“In most cases involving a journalist trying to protect their confidential sources, an argument can at least be made that the testimony of the journalist is needed for some reason, like when a journalist interviews a defendant,” said First Amendment lawyer Floyd Abrams. “But here Jana had no information and no knowledge at all relating to the guilt or innocence of the defendant, or whether he should get capital punishment if he is convicted, or the like.”
Added Abrams: “Is it worth the time, effort, and harm done to First Amendment and free press principles to go after a reporter who has done nothing more than obtain information of a highly newsworthy nature?”
The saga has also become something of a cause célèbre on the right, with bloggers and conservative commentators arguing that the case has not received the attention it deserves because Winter works for Fox, instead of, say, The New York Times or CBS. The conservative website The Daily Caller noted that The Times has yet to write a single article on the subject, even though the paper’s own former reporter, Judith Miller, went to jail for 85 days in 2005 for refusing to disclose the name of an anonymous source. And the conservative website The Independent Journal Review ran a story about the trial under the headline “Liberal News Silent As Fox News Reporter Jana Winter Faces Jailtime.”
“I think this is something that journalists, regardless of the outlet you work for, should be concerned about,” said conservative blogger Matt K. Lewis. “I certainly hope that the fact that she is from Fox News isn’t impacting the coverage you see from other outlets. I would hope that we would see more journalists stepping forward.”
Winter, a graduate of Columbia Journalism School and a former reporter for the New York Post, is continuing to work at Fox News and is slated to appear in a Colorado court on Wednesday. A friend described the threat of jail time as “a very emotional thing to be going through.”
“Some reporters may take a cavalier attitude about being a martyr for a cause,” the friend added. “She really does not want to go to jail.”
But there remains a chance that she might.
“She will not disclose her confidential news-gathering information. She can’t,” said Hanswirth, her attorney.
Leaks, she added, “are part of the way it works. This is the way news gets out. Confidential sourcing is part of the process. The whole world is watching how this judge is going to handle this case.”