Taking your shield with you

What the Jana Winter decision means for journalists reporting across state lines
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Cindy Gierhart

AP Photo

Jana Winter

Journalist Jana Winter’s win in New York’s highest court in December was undoubtedly a victory not just for her but for journalists everywhere. But just how will the court’s decision affect journalists, both inside and outside New York?

All shield laws are not created equal

Broadly, this case is about a battle between two states’ shield laws – sometimes called a reporter’s privilege – which protect journalists from having to reveal their sources in court.

Jana Winter is a Fox News reporter who wrote in July 2012 that James Holmes, the man on trial for the Colorado movie theater shooting, sent a notebook “full of details about how he was going to kill people” to a psychiatrist before the attack. She attributed this and other information to two “law enforcement source[s].”

Six months later, the Colorado court granted a request from Holmes’s attorneys to force Winter to testify and to hand over her notes, so they could identify Winter’s sources.

Holmes’s attorneys argued that Winter’s testimony was necessary because the information about the notebook never should have become public, and exposing it could unfairly influence the jury pool and impede Holmes’s right to a fair trial. Furthermore, the roughly 14 law enforcement officials who knew about the notebook all swore under oath that they were not the sources, so one or more of them could be charged with perjury.

Fox News, other news organizations, and First Amendment advocates argue that identifying the source now cannot remedy the fact that the jury pool has been tainted, and any interest in charging officials with perjury is irrelevant to Holmes’s murder trial.

This decision ultimately came from a New York court because Winter is a journalist living and working in New York. If a Colorado court wants a New York witness to testify in a criminal proceeding in Colorado, the Colorado court must ask the New York court to force the witness to testify.

Almost every state has enacted a uniform law that makes this process fairly smooth. According to the law, the witness’s home state should issue the subpoena if it finds that the witness is “material and necessary” to the case in the other state and if traveling there does not create an “undue hardship.”

Initially, New York courts complied, ruling that Winter was a “material and necessary witness” in the Holmes case and that traveling to Colorado would not create an undue hardship, as Holmes’s defense team would pay the costs.

In December 2013, however, New York’s highest court ruled on appeal that Winter should not be compelled to testify in Colorado.

The New York Court of Appeals, the state’s highest court, ruled that forcing Winter to testify in Colorado would violate the strong public policy of New York.

The court wrote that New York “provides a mantle of protection for those who gather and report the news – and their confidential sources – that has been recognized as the strongest in the nation.”

There is no doubt that Winter would not be forced to testify in New York, which offers an “absolute privilege” for confidential sources. That is, a New York court can never force a journalist to reveal the identity of a person to whom the journalist promised confidentiality.

Colorado offers a “qualified privilege” – that is, a journalist can be forced to reveal a confidential source if the information sought is “directly relevant to a substantial issue” in the case, it “cannot be obtained by any other reasonable means,” and the interest in gaining the information outweighs the First Amendment interests at stake.

Therefore, because New York’s protections for journalists are so strong and because Colorado’s protections are much weaker, the New York court could not justify sending its own journalist to a state without the protection the journalist would have received at home.

What does this case mean for journalists in New York?

To an extent, this ruling means that the New York law truly acts as a shield that journalists can carry across state borders. It means that New York courts will protect New York journalists from having to reveal their sources not only in New York but in other states, as well.

However, there are limitations.

First, New York journalists cannot necessarily carry this shield into every state. The New York court protected Winter because she was subpoenaed in a state that offered substantially less protection than New York. But if a New York reporter were to be subpoenaed in a state offering the same or similar protections as New York, then New York may defer to the other state’s rules on reporter's privilege.

The court, in fact, listed 18 states that offer similar protections to New York’s, implying that a reporter subpoenaed in those states may be subject to those states’ reporter's privilege laws without the aid of New York’s law.

Those states include two that offer “strong – though not absolute – protection” (Arkansas and West Virginia) and sixteen that offer absolute protection for confidential sources (Alabama, Arizona, California, Delaware, District of Columbia, Indiana, Kentucky, Maryland, Montana, Nebraska, Nevada, New York, Ohio, Oklahoma, Oregon and Pennsylvania).

However, Christopher Handman, Winter’s attorney who argued the case before the New York Court of Appeals, says the reading of the opinion need not be so restrictive. One could argue in a future case, he said, that putting a journalist in the hands of another state’s shield law – even one that offers absolute protection – should not be left to chance. A New York journalist should be afforded the protections of the New York shield law in all 50 states, he argues.

“Let’s cut to the chase and avoid any subpoenas at all,” he said.

A second limitation of the opinion is that the reporter is only safe from another state’s subpoena if the reporter does not physically visit that state. The rules of serving subpoenas are such that a person can always be subject to a subpoena if physically handed that subpoena in the state.

Jana Winter, therefore, has been advised not to travel to Colorado. Even though New York will not force her to testify in Colorado, by entering Colorado, she would suddenly be within the court’s reach.

“Aspen ski vacations are probably out of the question until the Holmes case is resolved,” Handman said.

A third limitation is in defining who is a “New York journalist” – and therefore who gains protection from the New York shield statute.

“The reason Holmes had to go to New York is because Jana Winter lives in New York, not because that’s where she works,” Handman said.

Therefore, a journalist who lives in New Jersey but commutes to New York every day for work is not a New York journalist. If a state wanted to serve a subpoena on this hypothetical journalist, the state would have to seek a subpoena from New Jersey, and New Jersey would determine whether to issue the subpoena based on its own public policy.

Despite these limitations, the New York court’s decision is broad in other respects. While Winter was asked to testify in person in Colorado, the New York court would have reached the same conclusion if Colorado had asked only for her notes and documents, Handman said. The New York shield law protects confidential sources absolutely, so a subpoena from another state’s court requesting notes that would identify a confidential source require just as much protection as a subpoena for in-person testimony.

Additionally, the New York court specifically said it does not matter where the reporting took place for the reporter to claim New York’s privilege. So a New York journalist who travels to, say, Illinois for a story, spends weeks conducting interviews, and even writes and files the story in Illinois will still be afforded the same protections under the New York shield law as a New York journalist who conducted interviews over the phone from New York.

What does this case mean for journalists outside of New York?

The New York decision affects only journalists living in New York, but the same notion could be replicated in other states’ courts, albeit in limited circumstances.

The key to the New York decision was that Jana Winter was being asked to testify in a state that offered her substantially less protection than her home state. So a similar decision would likely only come from states that have strong shield laws.

“I could see that, at least in those states where the protection is truly absolute, those courts, if asked, … could look to their laws and say [the] New York [statute] is absolute, so is ours, we share many of the same core values,” Handman said. “So [the New York decision] could have some transcendent significance, at least in those states.”

Holmes’s attorneys have said they plan to request that the U.S. Supreme Court hear an appeal of the New York decision. If the Supreme Court denies that request, the New York decision will remain in effect.