Fox News reporter going to jail for protecting sources?

posted at 8:31 am on April 6, 2013 by Jazz Shaw

For the first story of the weekend, let’s start off with one of those things that make you go hmmmm. It’s generally assumed – though not always true – that reporters are not subject to government pressure in terms of handling and protecting their confidential sources, at least as long as they aren’t endangering national security. In some places, so called “Shield Laws” take extra steps to make sure that reporters are free to keep digging and bringing the truth to light for the public. Both of these assumptions play a role in what’s happening out in Colorado right now in a very important trial… and it’s not the one for the Aurora shooter where Ed already told you about a rather shocking revelation. It’s the potential trial of the Fox News reporter, Jana Winter, who brought us the news. The details from Judge Andrew P. Napolitano.

My Fox News colleague, Jana Winter, an experienced journalist of impeccable integrity, is being threatened with incarceration by a Colorado judge unless she reveals the sources for the excellent and highly newsworthy piece she wrote for FoxNews.com revealing the existence of a notebook written by Mr. Holmes before the murders and sent to his psychiatrist, Dr. Lynne Fenton.

Winter’s report cited unnamed law enforcement sources and the defense immediately complained that investigators had violated the judge’s gag order issued days beforehand.

Now, in a witch hunt instigated by defense attorneys, the court seeks to learn who revealed the notebook’s existence to Ms. Winter.

Colorado has one of the “Shield Laws” mentioned above, but there’s a loophole in it. A big ole’ gaping, swallow your house kind of loophole.

But this law, like many, has a loophole in it that might enable a misguided court to incarcerate Ms. Winter if the court concludes that its need to know the identity of the source is greater than Ms. Winter’s need to protect the source, and if the identity of the source cannot be obtained by any less intrusive means.

In other words, we can’t go after a reporter to divulge their sources and throw them in jail unless we can’t manage to get the source to fess up on their own. That really doesn’t strike me as very iron clad in terms of the protection department.

This one should be a no-brainer for observers who are mindful of maintaining a free press. It’s true that there is nothing specific in the constitution which would shield a reporter from such a court order, but we’ve built a pretty healthy precedent over the years in terms of allowing reporters to guard their sources and keep the government honest. And this has nothing to do with the fact that it’s a Fox News reporter. This could be Piers Freaking Morgan digging up dirt on Marco Rubio and the reaction should be the same. If the government can’t manage to keep a lid on their information and stop their own people from talking to the press, the onus is on them to improve security in their department, not on the press to shrivel up and become conciliatory. I do understand how this could do damage to the prosecution’s case – or at least muddy the waters – but that doesn’t change the fundamentals of the case against Ms. Winter one bit.

UPDATE: (Jazz) Attorney Doug Mataconis weighs in with the legal beagle side of the debate.

Oh, and it was “discreet” not “discrete”… thanks.


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