Jana Winter

Should the government be able to decide what you are allowed to hear or read? Answer that and the case of Jana Winter becomes clear: She should not be jailed.

Winter is a Fox News reporter who faces the possibility of a six-month jail sentence for refusing to name two sources of a news story about James Holmes, the man accused of the Aurora theater shootings. He allegedly shot 70 people, 12 of whom died.

In July, citing two unnamed law-enforcement sources, Winter reported that a notebook Holmes had mailed to his psychiatrist contained “details about how he was going to kill people” and “drawing and illustrations of the massacre.” The judge in the case had ordered anyone with information about it to keep silent and Holmes’ attorneys want the court to order Winter to name her sources, with the threat of jail.

Winter has refused to divulge the names, and rightly so. As journalists have long known, naming a source who had been promised anonymity not only discredits the reporter but undermines all journalism – and with that the public’s right to know.

If people think their livelihoods, reputation or, in some cases, even lives, could be endangered they may not otherwise speak to a reporter. For a reporter to betray a source promised confidentiality would deter other individuals from disclosing sensitive information. It could even discourage sources willing to go on the record by putting the reporter’s integrity in doubt. Winter has said naming names would end her career.

For all those reasons, reporters have gone to jail rather than “burn” a source. Another journalist now with Fox, Judith Miller, spent 85 days in jail rather than reveal the name of a source.

Winter’s case need not come to that. Colorado has a “shield law” that provides that “no newsperson shall be compelled ... to disclose any news information received, observed, procured, processed, prepared, written or edited by a newsperson, while acting in the capacity of a newsperson.”

Of course, the privilege is not absolute. It does not cover information that has been published or when the newsperson was an actual witness to a crime. And the law specifies when it can be overridden.

That involves a three-part test. For a court to order a reporter to disclose something, such as the name of a source, the information must be “directly relevant to a substantial issue involved in the proceeding.” It must also be “information that cannot be obtained by any other reasonable means.” And it must be shown that the reason to subpoena that information “outweighs the interests under the First Amendment to the U.S. Constitution of such newsperson ... and of the general public in receiving news information.”

It is doubtful the desire for Winter’s names meets those requirements. The court already has Holmes’ notebook and if it is used as evidence knowing who told Winter about it should not alter its impact. Nor would the names themselves speak to his guilt or innocence.

The names could be used to impeach the testimony of witnesses if they turned out to be some of the law-enforcement officers who have already testified that they did not talk to Winter. But that is a thin hope in such an overwhelming case and little reason to trump the First Amendment.

This case already involves too much suffering. There is no reason to add to that by jailing a woman for being a good reporter – or to threaten Coloradans’ right to information. Freedom of the press is not about protecting the press. It is about protecting the people.

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