By Christopher B. Daly
One of the most serious recent threats to press freedom is playing out in Colorado. It involves a reporter for FoxNews.com who is the target of a subpoena by a state prosecutor who is pursuing the case against the suspect in the 2012 mass shooting in Aurora, Colo.
At issue is some reporting done by Jana Winter, who is an investigative reporter at FoxNews.com. In a story labeled EXCLUSIVE, Winter quoted two sources (whom she did not name) telling her that the suspect, James Holmes, had mailed a notebook to a psychiatrist before the shooting. According to one of the sources cited in her story, the notebook was “full of details about how he was going to kill people.”
As so often happens, the prosecutors in Colorado would like to know the identity of her confidential sources. For solid professional reasons, the reporter does not want to divulge those names. (If she did, then all sources would be that much more reluctant to speak to reporters, and — here’s the punchline: the public would be less informed.)
As so often happens, the judge in the case would also like to know the identity of the sources, so he is threatening to hold Winter in contempt of court unless she rats out her sources. That means the judge could send her to prison for up to six months, or until she relents and gives up the names.
This is a classic case of prosecutorial and judicial abuse of power that threatens the public’s right to know. The Constitution’s First Amendment, which guarantees freedom of the press, exists for the benefit of the American people, not just the news business. The people have a right to know things, and it’s for that reason that government is restrained from interfering with news-gathering and news dissemination.
In cases like this, a “shield law” could protect the reporter from such pressure and threats. But a proper reading of the Constitution could serve just as well. In the rare cases where the use of confidential sources gets to the point where jail time is a real threat, most jurisdictions require that prosecutors meet a multi-prong test: the material being sought must be germane to the case, and it must be unavailable in any other way. This case hardly meets either standard. In the criminal case against Holmes, the question for the jury will be, did he kill all those people? Whether he sent a notebook to anyone in advance is irrelevant. (It might be relevant if the survivors of the shooting ever brought a civil suit against the psychiatrist, charging the psychiatrist with failure to warn — but that’s another matter entirely. And even then, the notebook is probably irrelevant, since the psychiatrist did not even open the package it was in until after the shooting.) In the criminal case, finding out Winter’s sources serves no purpose, and the subpoena should be quashed. The judge is probably irked that Winter’s sources violated his gag order in the case, but he never should have issued a gag order in the first place.
Of course, the suspect has rights under the same Constitution that protects the journalist. Holmes is entitled to a fair trial, which includes the right to face his accusers. But Winter’s sources are not his accusers and do not need to be dragged into this case. Holmes’ rights to a fair trial also include the right to be tried by an impartial jury — that is, one that is not inflamed by news reports about the case. But there again, the prosecutor and judge have no leg to stand on. Whether or not there was a notebook and whether Winter was told about it by this person or that person has no bearing on the state of mind of the jurors who will ultimately hear the case and decide Holmes’ fate. My suspicion is that the prosecutor and the judge just want to control all the parties in the case, and they are frustrated that they can’t do so.
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Recently, some people have complained that the liberal media have been slow to rally behind Winter because she works for the media empire of the despised conservative Rupert Murdoch. (According to the Times, she used to work for Murdoch’s New York Post before signing on as an investigative reporter for FoxNews.com, the website associated with Murdoch’s Fox News on cable television.) Today’s Times carried a news story and an op-ed about the case, so it hardly seems that the liberal Times is ignoring the case.
Some folks at Fox News seem to have a problem with the Constitution, especially when it comes to extending its protections to unpopular causes. But the beauty of the Constitution is that it exists for all of us, without exceptions. So to my colleagues at Fox News, I say welcome to the experience of being a frightened individual, hunted by the powers that be, despised and alone, hoping against hope that some clause in a document drafted in 1789 can save you from unwarranted punishment.
That’s why we have the Constitution, for everyone.
Prof Chris Daly's Blog 