Punch Pressing the Press

The First Amendment unambiguously provides that: “Congress shall make no law… abridging the freedom of speech, or of the press.”

Unambiguously means that there are no exceptions; no ifs, ands or buts. Federal, state and local governments therefore have zero authority to violate this crucial provision in the Bill of Rights protecting news reporters doing their jobs.

But the entire Bill of Rights has been shredded in the United States of America of late and freedom of the press has been punch pressed with gaping holes right along with the rest of our fundamental constitutional rights.

Witness the outrageous example involving veteran FoxNews.com reporter Jana Winter, who has been ordered by a Colorado court to reveal her source for a true story about James Holmes, the criminal defendant accused of perpetrating the infamous Aurora Colorado movie theater massacre in July, 2012.

It goes without saying that news reporters cannot do their jobs without sources and there would be no sources if reporters could be required by the government authorities to reveal their identities in spite of confidential agreements between the parties.

The First Amendment freedom of the press provision is supposed to protect that crucial relationship between reporters and their sources.

Apparently Ms. Winter’s source violated a gag order imposed by the trial judge directed at the cops and anyone involved in the criminal investigation. The source told Ms. Winter about a chilling and incriminating notebook the gunman had sent to his psychiatrist, a notebook "full of details about how he was going to kill people,"  before the shooting.

(Gag orders of this nature are yet another dubious abridgement of First Amendment rights, but that is another story for another time.)

Ms. Winter duly reported the facts, which she attributed to “law enforcement sources, “in a bombshell story appearing on Fox News.com, which is a New York State based publisher. The notebook contained “drawings of what he was going to do in it -- drawings and illustrations of the massacre," as well as “gun-wielding stick figures blowing away other stick figures.”   

Holmes’ defense attorneys claim that the leaked information in violation of the gag order, which led to the incriminating revelation on national news, amounts to a violation of their client’s Sixth Amendment right to a fair trial by an impartial jury. Their efforts to identify and punish the leaker failed so they directed their aim against the reporter to try to force her to reveal her source.

The Colorado trial judge agreed with defense counsel and issued a subpoena against Winter to force her to testify concerning the identity of her source. Since Winter is from New York the defense, with authorization from the Colorado court, took the matter to a New York court to enforce the subpoena and the New York court did just that.  

The issue is now on appeal in the New York Court of Appeals.

Both Colorado and New York have so-called “shield laws” designed to protect the activities of news reporters, but the Colorado law would force Winter to reveal her source in this circumstance while the New York law would protect her with immunity.

Since the incident occurred in Colorado Holmes’ defense attorneys have so far successfully argued that the New Your law doesn’t apply.

If the New York Court of Appeals affirms the lower courts, Ms. Winter will ultimately be forced to either reveal the identity of her source to the Colorado court or face being thrown into prison for criminal contempt.

While the attorneys argue on and on about which shield law should apply, I say that there can be be no law or statute which might be interpreted to nullify the First Amendment. If this reporter is forced to either reveal her source or be thrown in prison her constitutional rights will be cruelly violated.

The First Amendment prohibits the Colorado judge from issuing a subpoena against any reporter under these circumstances; the First Amendment prohibits the New York courts from enforcing any such subpoena, period, regardless of which shield law applies. The shield laws have no bearing upon the validity of First Amendment which is the supreme law of the land.

If the defendant Holmes’ Sixth Amendment right to a fair trial by an impartial jury has been violated, that is another and separate matter altogether. The Colorado trial judge has plenty of alternatives available to protect the defendant’s rights without violating Ms. Winter’s First Amendment rights. She is certainly not the criminal here.

The defendant’s Sixth Amendment rights do not trump a reporter’s First Amendment rights.

The government authorities here are the ones who are guilty of unlawfully punch pressing the press.