On Tuesday, The New York Court of Appeals overturned a subpoena that’s been hanging over investigative reporter Jana Winter’s head since March, and resolved a legal battle that lasted over a year. The subpoena had called on Winter to appear in the James Holmes criminal trial in Colorado, where she would have been compelled to testify as to the identities of her two anonymous sources for a story she filed about Holmes last July. While the court’s ruling has freed her from the threat of jail time, the subpoena itself did quite a lot of damage in the meantime.
In ordering the subpoena, Holmes’ defense attorneys wanted to find out which “law enforcement sources” violated a gag order by leaking to her that Holmes had sent a notebook with violent drawings to a psychiatrist prior to the shooting in Aurora. (The defense is arguing that Holmes is not guilty by reason of insanity.) Winter refused.
In the absence of a federal shield law—for the time being, at least—each state varies in how much protection it will grant to reporters in cases like this one. New York’s shield law gives absolute protection: No court in the state can hold a reporter in contempt for refusing to disclose confidential information or sources. Colorado also has a shield law, but it is more qualified. Judges in Colorado weigh a reporter’s First Amendment interests with someone’s need for the information in the context of a case.
Winter, a Fox News reporter who lives and works in New York, argued that she should be able to claim New York shield law protection, even though the court proceedings were in Colorado. After much legal back-and-forth, this question made its way through the New York court system all the way up to the state’s highest, the New York Court of Appeals.
During oral arguments to the Court of Appeals last month (transcript available here), one of Winter’s attorneys, Christopher Handman, argued that compelling her to testify would harm her career. Judge Robert Smith asked if this was being “overblown,” since other states have less protective shield laws than New York, and people still seem to be able to make a living as investigative reporters in those states.
“Do you have an example of any journalist anywhere whose career was ever ended because he or she burned a source?” Smith asked. “Well, no, because most journalists don’t burn their sources,” Handman replied.
The win for Winter on Tuesday came by a slim margin,
three to twofour to three. “[T]here is no principle more fundamental or well-established than the right of a reporter to refuse to divulge a confidential source,” wrote Judge Victoria Graffeo in the majority opinion. Requiring Winter to appear in Colorado and testify about those sources, she went on, “would offend the core protection of the Shield Law, a New York public policy of the highest order…. We therefore conclude that the subpoena application should have been denied.” Judge Smith wrote the dissenting opinion, in which he argued that the jurisdiction of a New York law should not apply because the “allegedly privileged communications took place wholly in Colorado.”
Tuesday’s ruling is surely a huge weight off her shoulders, but the legal process itself has caused her professional setbacks. She was put in an impossible bind, threatened with jail time for doing a fundamental part of the job of journalism—protecting her sources’ identities—while that threat prevented her from continuing to report other stories. Current and future sources didn’t trust her more for her pledge to keep her previous ones anonymous, unfortunately. They avoided her altogether.
In an affidavit she filed in July in the Colorado court (recently obtained from her lawyers), Winter described the “severe hardship” that the subpoena had caused in both her “personal and professional lives” in previous months. Several tips and leads she had on various aspects of the Holmes case had since dried up because her sources were spooked by her subpoena. She also described, in vague terms, a report about a “high-profile national security investigation” that she had been pursuing up until she was served with the subpoena. “After news of my subpoena broke, several sources around the world who had indicated they would provide me with additional information about this case were chilled and refused to speak to me, citing the news of my subpoena,” Winter wrote. “As a result, this important news has not come to light either by my reporting or anyone else’s.”
Winter’s predicament was so widely known among her sources that they often only had to write one word for her to know that they would be off limits. Her affidavit includes a screenshot of an iPhone text message conversation between herself and a source, in which the “Colorado [thing]” is cited as the reason for a source’s changing his or her mind about cooperating with Winter on a story. Winter wrote, “there have been countless times over the last several months since the subpoena was served that I have reached out to law enforcement sources in the middle of breaking news who have historically, for many years, been willing to speak to me, and they have told me not to contact them until my subpoena is resolved; some have literally written back ‘subpoena’ or ‘no, sorry. Colorado.”
“Much of my career to date has been devoted to developing a robust roster of contacts in law enforcement and local, city, state, and federal government,” she wrote in her affidavit to the court. “As a result of this subpoena, about 80 percent of these individuals now refuse to speak with me at all.” She described the toll it’s taken: “Not being able to do my job, simply because I did my job, is extremely distracting and emotionally draining.”
One subpoena, stemming from one story, put her entire career at risk. According to her LinkedIn profile, Winter graduated from the Columbia Graduate School of Journalism in 2006, and has been reporting, first at the New York Post and then at FoxNews.com, for seven and a half years. How long will it take her to rebuild the relationships with her sources that she has built up in that time, and many of which have been damaged this year?
In an interview a few weeks ago, another one of Winter’s attorneys, Dori Hanswirth, reiterated how difficult it was for her to do her job while the subpoena was “hanging over her head”—how Winter was being thwarted at every turn. “As young as she is, she’s a traditional, old-fashioned investigative journalist, who likes to go out and cultivate sources, and she’s having a tough time with it,” said Hanswirth. “Is she filing stories? Yes. Are they the same that they would be if she weren’t under subpoena? I don’t think so at all.”
A look at Winter’s bylines for Fox in the past few months shows Hanswirth may be right. Winter has earned a reputation as an intrepid reporter with a lot of guts (and insider sources). See, for instance, her exclusive on-the-scene scoop about the 6am FBI raid on suspected “Anonymous” members in Long Island and Brooklyn in 2011. (See also this line from her affidavit: “In my career, I have had a gun pointed to my head, been caught in the middle of gunfire, and been chased with an electric chainsaw.”) Her latest FoxNews.com piece, though, filed last week, was something for the TV section about Jersey Shore’s Mike “Situation” Sorrentino, and some trouble he got into involving his taxes. She has done some strong pieces in the past few months, on a hacktivist called The Jester and an interesting back-story about the Navy Yard shooter, for instance. But there are few exclusive scoops to be found, and no anonymous law enforcement sources cited.
When asked on Tuesday what impact the ruling would have on Winter’s reporting and her relationships with her sources going forward, Hanswirth emailed back a response. “Today’s decision from New York’s highest court should send a strong signal to all news sources that their confidential information will be protected,” she wrote. “We fully expect Jana’s sources to continue to work with her, knowing that she fought a hard battle and won a significant victory for freedom of speech.”
Because of Tuesday’s ruling, Jana Winter doesn’t have to go to jail to protect her past sources. But—and perhaps her past and potential future sources will take note—she would have.Lauren Kirchner is a freelance writer covering digital security for CJR. Find her on Twitter at @lkirchner Tags: aurora, fox, jana winter