Free Press Wins in NY, By One Vote

Freedom of the press got tested in New York State this week…and it won.

By just one vote.

The state’s top court ruled, in a 4-3 vote, Fox News reporter Jana Winter cannot be compelled to give up the names of her anonymous sources to a Colorado court that is demanding she do so.

The Consequence:
The ruling means anyone in New York who witnesses something they think is wrong can have more confidence their confidentiality will be protected if they leak the story to a reporter.

The Background:
The Holmes v. Winter NY State Court of Appeals case involves accused mass murderer James Holmes and the Aurora movie theater shootings, and Winter. Winter broke a story about a notebook Holmes allegedly sent to a University of Colorado psychiatrist that was reportedly “full of details about how he was going to kill people.” Winter cited two unidentified “law enforcement sources” even though a Colorado judge had placed a gag order on the investigation. Holmes’ attorneys claim the release of the sources’ names was required for a fair trial.

Since Winter works for Fox News in New York City, she claims New York State’s shield law protects her from the Colorado court’s ruling. Two lower New York courts agreed with Colorado, but the state’s top court sided with Winter.

NY’s Free Press Tradition:
New York State’s free press tradition is among the strongest in the world. In 1734, New York publisher John Peter Zenger was jailed for criticizing the colonial Governor and refusing to reveal his sources. After spending eight months in prison, a jury refused to convict him. This landmark case laid the foundation for the federal Bill of Rights’ First Amendment that was ratified nearly 60 years later. The state’s constitution has a free press provision (Article One, Section 8) broader than the one contained in the Bill of Rights.

Shield Laws:
Shield laws, designed to protect journalists from revealing sources, vary greatly from state to state. Colorado’s law is less protective than New York. In NY’s ruling this week, the Dissenting Opinion (there were three “no” votes) stated since the reporter’s privileged communication took place in Colorado, the NY Shield law “does not apply.” Fortunately, the Majority rejected that contention. Would it be sound law to suggest a face-to-face communication would not be protected but a phone call or text to a reporter in NY would be? The Dissent failed to recognize the borderless nature of news gathering, especially in the Internet age.

The state’s top court Majority stated there is “no principle more fundamental or well established than the right of a reporter to refuse to divulge a confidential source.”

Reporters have gone to jail to protect their sources. This occurred as recently as 2005 (Judith Miller at the NY Times). Why? Because they know if they are forced to reveal their anonymous sources, they won’t get any more of them. And their readers, viewers and listeners will not get the information that those sources produce.

On this issue at least, New York remains the Empire State.

The writer is a former TV news anchor/reporter, current radio host and adjunct media professor.