Shield Law Protects Reporter From Colo. Subpoena, Court Says

, New York Law Journal


Journalist Jana Winter, center, leaves the courtroom after watching proceedings in November at the New York Court of Appeals in Albany.
Journalist Jana Winter, center, leaves the courtroom after watching proceedings in November at the New York Court of Appeals in Albany.

ALBANY -- New York's Shield Law may be invoked by Fox News reporter Jana Winter to block a subpoena issued by a Colorado court to compel her to reveal her sources for an article about James Holmes, the "Batman" theater shooter, a divided Court of Appeals ruled Tuesday.

Writing for the 4-3 majority, Judge Victoria Graffeo (See Profile) said in Holmes v. Winter, 245, that allowing a New York court to uphold the Colorado subpoena "would offend our strong public policy—a common law, statutory and constitutional tradition that has played a significant role in this State becoming the media capital of the country if not the world."

Noting that the Shield Law represents a fundamental pillar of New York press freedom traditions since colonial times, Graffeo said, "Protection of the anonymity of confidential sources is a core—if not the central—concern underlying New York's journalist privilege."

At issue was an online story Winter wrote for one week after Holmes' was arrested and charged with killing 12 and wounding 70 in a screening of "The Dark Knight Rises" in Aurora, Colo. Her story quoted unidentified law enforcement sources describing a notebook Holmes had sent to a University of Colorado psychiatrist before the July 20, 2012, shooting that suggested he had plans to commit a massacre.

Graffeo's ruling said it is "clear" that the subpoena was issued to Winter to compel her to disclose her law enforcement sources, who had apparently broken a gag order issued a few days after the shooting.

Graffeo said it is a "valid objective" by the Colorado court to try to discover who leaked information in light of the gag order and to avoid excessive pretrial publicity in the Holmes case.

"But this predictable chain of events is precisely the harm sought to be avoided under our Shield Law for it is fear of reprisal of this type that closes mouths, causing news sources to dry up and inhibiting the future investigative efforts of reporters," Graffeo wrote.

Given the "significant disparity" between the Shield Laws in New York and Colorado, and the fact that Winter is a New York resident, "she was entitled to have the Shield Law issue adjudicated in New York before the subpoena was issued," Graffeo wrote.

New York's 1970 Shield Law bars a New York court from holding a journalist in contempt for refusing to reveal the identities of confidential news sources. Colorado's Shield Law allows judges to order journalists to disclose confidential sources if the court decides the interest of justice trumps the journalist's confidentiality expectations.

Chief Judge Jonathan Lippman (See Profile) and Judges Jenny Rivera (See Profile) and Sheila Abdus-Salaam (See Profile) joined the Court of Appeals majority.

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