Hearings in the James Holmes trial are underway and a trial date has been set for February 2014. There has been much discussion of the prosecution’s decision to seek the death penalty – a decision made in consultation with the victims’ families – but far less attention has been given to a tremendously important issue that has now become part and parcel of the Holmes trial: protecting our first amendment rights.
You will all remember a crucial breakthrough in the James Holmes case that came courtesy of Jana Winter, a veteran Fox News journalist, in late July of last year. Winter learned that police had “searched for and recovered” a notebook that Holmes had sent to his former psychiatrist, Dr. Lynne Fenton at the University of Colorado, which contained drawings such as gun-wielding stick figures blowing away other stick figures.
Winter investigated the tip and published her exclusive story on July 25th. She cited unnamed law enforcement sources, a practice that is customary in investigative journalism.
But where this story takes an unusual turn is in how Holmes’ defense team reacted to Winter’s exclusive: they complained that these law enforcement officials had violated the judge’s gag order, issued days beforehand.
And they aren’t stopping. In 24 hours, Winter will appear in court and Judge Samour will hear arguments as to whether Winter should be compelled to reveal her sources. Winter has invoked the protection of the Colorado State Shield Law, which permits journalists to decline to reveal their sources on matters of public interest, but it is possible that the Shield Law won’t be able to protect her.
The Colorado State Shield Law has a loophole that the court can conclude that the need to know the identity of the source is greater than the need to protect the source. If Judge Samour sees it that way, Winter will be compelled to give names or go to jail.
Winter has made it clear, through her attorneys, that she would rather go to jail than give up the identities of her sources. This is certainly one of the toughest, if not the toughest, decision that a reporter is apt to face in his or her career. But the real question becomes, why is Winter having to face this decision at all?
It is wholly out of line with the principles of the First Amendment for a court to compel a journalist to reveal their sources. Not only does it set a bad precedent, but it also endangers the entire field of investigative journalism. I am hard pressed to imagine a scenario in which this type of ruling would not have a deleterious effect on the number of sources willing to take to journalists on a confidential basis.
As I see it, Winter provided an essential piece of evidence to a hugely important case. She did this with the best interests of the public at heart and in pursuit of the truth. For her two options to be either facing jail time or to violate the implicit pact between a journalist and their sources is a betrayal of what our country is meant to be about.