Reporter's Attorney Presses for Broad Reading of Shield Law

, New York Law Journal

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Journalist Jana Winter
Journalist Jana Winter leaves the Court of Appeals yesterday after arguments on whether New York's Shield Law can prevent a Colorado court from compelling her to reveal confidential sources.

ALBANY - Arguing for a broad interpretation of New York's Shield Law, an attorney for a New York-based reporter under subpoena in Colorado in the "Batman killer" case told the Court of Appeals that the law helped establish New York as the media capital of the world.

"The idea that New York, prideful as it was about being the center of the dissemination and the gathering of news throughout the world, would limit its protections to reporters talking to sources in New York about parochial New York affairs flies in the face of the way the Legislature broadly defined news to be worldwide events," said Christopher Handman of Hogan Lovells in Washington, D.C. "You don't become the global leader of news gathering and dissemination if all you are doing is reporting on the metro desk," he told the court hearing Holmes v. Winter, 245.

He argued that journalist Jana Winter should be allowed to invoke the statute to prohibit a Colorado court from compelling her to reveal her confidential sources in a story she wrote for FoxNews.com soon after James Holmes' 2012 shooting rampage in Aurora, Colo.

The Shield Law defines news in a "broad way" because the media in New York have always had a national and global view of communications, Handman said.

Arguing for Holmes' defense team that Colorado's shield law, not New York's, should apply, Daniel Arshack of Arshack, Hajek & Lehrman in Manhattan contended that a subpoena has been legally issued in Colorado to compel Winter's testimony, no matter where she lives or where she was when reporting the Holmes story.

Arshack conceded that once she is on the stand in a Colorado court, Winter will be asked to reveal the law enforcement sources she cited for her FoxNews.com story, which said Holmes sent a notebook to his psychiatrist that indicated he had plans for the shootings.

"She can testify or she can litigate this issue in Colorado," Arshack said. Judge Robert Smith asked, "As she litigates it, surely the Colorado court has to decide which shield law applies, doesn't it?"

"That will be a decision that the Colorado court will make," Arshack said.

Following the 30-minute arguments Tuesday, Handman reiterated Winter's position that revealing her sources would be career suicide for any investigative journalist.

"It is undisputed Ms. Winter will suffer irreparable harm as an investigative journalist if she is forced to burn her sources," Handman told reporters. "She has been on record that she will never burn her sources, so she will have to go to jail."

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