Winter Decision Offers Template for State Courts; Highlights Need for Federal Press Shield Law
By Christopher T. Handman and Sean Marotta, Hogan Lovells US LLP

Last Friday, New York City-based FoxNews.com reporter Jana Winter was scheduled to appear in a Colorado courtroom.  There, she faced the possibility of indefinite jail time for refusing to name the confidential sources behind her story about James Holmes—the so-called “Batman” serial killer—who murdered 12 and wounded over 70 in a shooting spree at an Aurora, Colorado movie theater.

But a decision from New York’s highest court last month has ensured that Winter will not go to jail for simply doing her job.  On December 10, the New York Court of Appeals ruled that Winter did not have to choose between burning her sources and jail, citing New York’s strongest-in-the-nation press shield law.  The decision gives other states with similarly strong laws a way to protect their reporters from out-of-state criminal subpoenas, but the fact that Winter faced her dilemma at all underscores the need for a federal shield law that protects reporters nationwide.

Holmes sought Winter’s testimony because—he claimed—her sources violated a gag order imposed by the Colorado trial court.  But a Colorado defendant like Holmes has no constitutional right to subpoena a New York resident like Winter across state lines.  Instead, all 50 states have enacted a uniform, reciprocal statute that allows a court in one state to request that a court in another state compel one of its residents to travel to and testify in the requesting state.  Holmes invoked that procedure in his case, leaving it up to the New York courts to decide in the first instance whether to send Winter to Colorado.

Winter’s attorneys (full disclosure: we’re two of them) argued that Winter should not have to go to Colorado.  New York has an absolute shield law, meaning that no reporter—under any circumstances­—can be forced to testify about her confidential sources.  But on its face, that law did Winter no good because it applies only to testimony being compelled in a New York court.  And out in Colorado, if Winter were asked to reveal her sources, she would be protected by Colorado’s porous, qualified shield law.  Under that law, reporters can be forced to testify—even about confidential sources—if the court determines that a defendant’s interest in the reporter’s testimony outweighs the reporter and public’s First Amendment rights.   The difference between the two states’ shield laws makes a real difference in how news is gathered.  In New York, reporters’ sources know that their identity is safe, come what may.  In Colorado, sources have to live with the uncertainty that their identity may be unmasked by a court applying an indeterminate test.  The upshot is that sources are less willing to come forward with important, newsworthy information.

So the question for the New York Court of Appeals was whether the State’s strong public policy of press freedom should preclude a New York court from compelling a New York journalist to testify in a state where there was a very real risk she would be forced to reveal her confidential sources on pain of contempt.  A 4-3 majority of the New York Court of Appeals agreed it should.  The court held that Holmes’ request for Winter’s testimony “offended” New York’s “long tradition, with roots tracing back to the colonial era, of providing the utmost protection of freedom of the press.”  It therefore concluded that where a New York reporter’s testimony regarding her confidential sources is requested in a state without protections similar to New York’s, a New York court should refuse to order the reporter’s appearance.

The Court of Appeals’ opinion has rightly been called an “important decision” and a “milestone that is sure to be cited along with the Court’s other leading free press decisions.”  But the case’s importance goes far beyond Jana Winter and New York.

In particular, the Court observed that 16 other states—from Alabama to Pennsylvania—have adopted privilege statutes that provide absolute protection to a reporter’s confidential sources.  For these states and their courts, the Court of Appeals’ decision may prove persuasive should a journalist based there be asked to testify in a state without similarly strong protections.  Thus, the Court of Appeals’ opinion may influence the law well outside the Empire State.

At the same time, the Court of Appeals’ decision has significant limitations: it applies only in proceedings governed by New York state law.  If Winter were subpoenaed to reveal her sources before a federal grand jury in downtown Manhattan or served with Holmes’ subpoena while in Denver, she wouldn’t have New York’s shield law to protect her.

These limitations, the National Constitution Center has noted, “focus[] more attention on the need for a national shield law” that will protect reporters in state and federal courts across the country.  Although Jana Winter is lucky enough to avoid jail under this decision, other reporters—such as New York Times reporter James Risen—continue to fight to protect their anonymous sources.   A national shield law will make it so reporters do not have to risk jail for doing their jobs and keeping their promises to confidential sources.

The views expressed in this blog post are not necessarily those of TCP, its committees, or boards. 

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