Media & Communications Law

Fox reporter covering Colo. movie-theater slayings will not have to reveal sources in court

A Fox News reporter who broke a story involving a graphic, personal journal belonging to James Holmes, the man accused of gunning down moviegoers waiting to see The Dark Knight Rises at an Aurora, Colo., theater in 2012, will not have to reveal the identities of her sources.

In a 4-3 vote, the New York Court of Appeals handed down an opinion (PDF) on Tuesday holding that Fox’s Jana Winter could maintain the confidentiality of her sources under the state’s media shield law. Winter, who was represented by Christopher Handman of Hogan Lovells, had relied on two unnamed law enforcement sources, one of whom had disclosed the existence of Holmes’s journal that allegedly contained details and drawings of how he’d carry out a mass shooting. According to the Albany Times Union, Holmes defense attorneys Daniel Arshack and Richard Willstatter of New York had argued that Winter’s refusal to disclose her sources jeopardized Holmes’s chances of receiving a fair trial.

Their argument had convinced the state court judge presiding over the criminal case in the District Court for the County of Arapahoe in Colorado. Because Winter was based in New York, Holmes’ attorneys had obtained an order from New York state supreme court to compel her to disclose her sources. Winter appealed, and a four-judge majority for New York’s high court sided with her, holding that her sources were absolutely privileged under state law. “New York public policy as embodied in the Constitution and our current statutory scheme 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,” Judge Victoria Graffeo wrote for Chief Judge Jonathan Lippman and judges Sheila Abdus-Salaam and Jenny Rivera.

“I do not think this is a proper case, however, because the allegedly privileged communications took place wholly in Colorado, and the New York Shield Law does not apply to them,” Judge Robert Smith wrote in dissent for judges Susan Read and Eugene Pigott.

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