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A Killer’s Notebook, a Reporter’s Rights
By THEODORE J. BOUTROUS Jr.
Published: April 9, 2013
SHOULD a journalist be punished for revealing a murderer’s secrets?
Jana Winter, a reporter at Fox News, covered the shooting rampage that killed 12 people and injured 58 others at a movie theater in Aurora, Colo., on July 20, 2012. Five days after the attack, she reported that James E. Holmes, who has been charged with committing the massacre, had sent a notebook to a psychiatrist before the attack.
On July 25, Ms. Winter quoted two unnamed law enforcement sources as saying that Mr. Holmes had “mailed a notebook ‘full of details about how he was going to kill people’ to a University of Colorado psychiatrist before the attack.” According to her reporting, the notebook contained “drawings of what he was going to do,” including sketches of “gun-wielding stick figures blowing away other stick figures.” Holmes’s lawyers are now trying to compel Ms. Winter to disclose her sources, who spoke to her on a confidential basis and possibly violated a court-imposed order that was intended to restrict public access to materials in the case so as to ensure a fair trial. The defense lawyers say the information is relevant because it speaks to the credibility of law enforcement officers who, under oath, have denied leaking the information. Lawyers for Ms. Winter and Fox News have moved to quash the subpoena, asserting that under the First Amendment and Colorado’s “shield law,” which protects reporters, she is not required to disclose her sources. On Monday, the judge in the Holmes case, Carlos A. Samour Jr., put off a decision on the motion, saying he needed to first decide whether the notebook was even relevant to the criminal proceeding.But the case is clear-cut.If Ms. Winter were compelled to reveal her sources — or found in contempt of court andfined or jailed for refusing to do so — it would have a chilling effect on journalists and their ability to gather information in the public interest. This should be an open-and-shut case, but it comes at a time when the Obama administration, despite its commitment to transparency, has pursued a record number of criminal prosecutions against whistle-blowers for leaking information to the press, even if the disclosures were done out of an honest desire to serve the public interest. (Disclosure: I have represented Fox News and its parent, News Corporation, in the past, but have no involvement in this case.)Colorado, like 39 other states and the District of Columbia, has a “shield law” specifically designed to protect journalists from having to disclose their sources. In Colorado, before requiring a reporter to testify about confidential sources, a court must be convinced that the information is “directly relevant to a substantial issue in the proceedings.” In this case, the identity of Ms. Winter’s sources has no bearing on whether Mr. Holmes is guilty or innocent in the movie-theater massacre. It seems like nothing more than a sideshow, a tactic by the defense lawyers to intimidate the leakers and divert attention from the criminal trial.Over the last 40 years, courts around the nation have repeatedly recognized the strong First Amendment interest in protecting confidential news sources. One federal appellate court ruled that jeopardizing a journalist’s ability to protect the confidentiality of sources would “seriously erode the essential role played by the press in the dissemination of information and matters of interest and concern to the public.”There is no question that Ms. Winter’s article was of public interest and concern: By reporting on the mental health of an alleged mass murderer and his apparent statements to a psychiatrist, she shed light on the dilemma mental health professionals often face in balancing confidentiality obligations and public safety concerns. (In this case, the notebook did not ever reach the psychiatrist to whom it was sent; its existence was only uncovered after the attack.)Mr. Holmes’s lawyers argue that his notebook cannot be used as evidence against him because it is protected by Colorado’s psychotherapist-patient privilege, which prohibits the disclosure of “knowledge gained” from patients without their consent. (While Colorado law recognizes that a psychotherapist may have a duty to disclose a “threat of imminent physical violence against a specific person or persons,” it is not clear whether that duty would have applied in this case.)This form of privilege is recognized nationally and the implications go well beyond Aurora; these issues are also central to the ongoing national debate over gun control since the elementary school shootings last December in Newtown, Conn.If a litigant’s mere desire to punish a confidential source were enough to force a reporter to disclose the source’s identity, then journalism would be seriously jeopardized and laws protecting it would be gutted.This seems to already be happening to Ms. Winter. “Because my sources have been intimidated by the specter of the Holmes subpoena,” she wrote in an affidavit, “reports have gone unwritten and I have been thwarted in my news-gathering.”The case of Ms. Winter, a young reporter, has not gotten as much attention as battles over confidential sources that involve national security matters, but, given the increasing prominence of mass shootings in America and the complicated role that mental illness has played in many of these cases, her case is a pivotal one for journalists and for any American who cares about freedom of the press.
Theodore J. Boutrous Jr. is a partner at the law firm Gibson, Dunn & Crutcher, focusing on appellate and constitutional law
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