The Colorado Senate Judiciary Committee considered a bill Wednesday that would strengthen the Colorado reporter shield law.
Colorado Sen. Bernie Herpin introduced the bill after Colorado courts threatened jail time for Fox News reporter Jana Winter if she did not reveal her confidential sources. The committee delayed a vote on the bill until a later date.
Winter reported that the accused gunman in the Aurora, Colo., theater shooting had sent his psychiatrist a notebook before the attack, citing an anonymous law enforcement source. Colorado courts sought to have Winter reveal her source. To do so, Colorado had to request that New York, Winter’s home state, issue a subpoena forcing her to testify.
In a court battle that reached New York’s highest court, New York refused to issue the subpoena, ruling that forcing a New York journalist to testify in Colorado – which offers significantly less journalistic protections – would violate New York’s public policy.
New York’s shield law is absolute, meaning that journalists, under no circumstances, will be forced to reveal confidential sources (though they may be required to reveal non-confidential information).
Colorado, on the other hand, offers only a qualified privilege, so that journalists are protected from having to reveal sources unless the party can show the information is “directly relevant to a substantial issue” in the case, that the information cannot be obtained elsewhere, and that the interest in obtaining the information outweighs the journalist’s First Amendment interests.
The proposed bill before the Colorado legislature would bolster journalist protections in a few respects. First, it would change the standard so that a party seeking information from a journalist would have to prove each element by “clear and convincing evidence” – a tougher hurdle than the current “preponderance of the evidence” standard. Second, it would require journalists to reveal sources only if the information was “highly material and relevant” (instead of “directly relevant”) to the case and “critical or necessary” to a material issue in the case. Third, it would remove the balancing element in which the court determines which party’s interest outweighs the other.
Winter wrote a letter to the Colorado Senate Judiciary Committee Tuesday, saying that dozens of her sources across the country stopped returning her phone calls after she was subpoenaed.