Buying time for a free press

Tuesday, April 9, 2013

The judge in the Colorado movie theater shooting case has decided to buy some time.

Colorado District Court Judge Carlos Samour  Jr. has postponed a decision on whether Fox News reporter Jana Winter will be required to reveal her anonymous sources.  Winter’s reporting revealed that shooting suspect James Holmes had mailed a notebook outlining  violent plans and depicting illustrations of a shooting attack to a psychiatrist at the University of Colorado, where he had gone to school.

On July 20, 2012, James Holmes shot 12 people to death and injured 58 others at a screening of “The Dark Knight Rises” at a movie theater in Aurora, Colorado.

Holmes’ attorneys are seeking a court order to compel Winter to reveal who told her about the notebook or face a jail sentence.

Beyond the battle in the courtroom, there are important broader principles.  The First Amendment gives the reporter the right to gather news and information.  The Sixth Amendment guarantees a defendant the right to a fair trial, which would include the information necessary to repair an adequate defense.

In this case, Judge Samour would make his decision by applying  the Colorado Shield Law, so named because it provides some protection for reporters to safeguard their sources.

Shield laws are designed to help ensure that whistleblowers and sources with information that serves the public interest have an outlet beyond institutions they work for.  The First Amendment gave us a free press in order to keep an eye on people in power.  That’s not an inside job.

In this case, Winter reported what we all wanted to know.  Was there any warning that Holmes might be planning a massacre?  Did the University miss that?  We don’t know the full answers to those queries yet, but it does lead to the important question of whether educational institutions are prepared to navigate the tough decisions when a student poses a potential threat to public safety.

The judge will have to weigh whether the information being sought by the defense is so valuable that it outweighs Winter’s First Amendment rights.  Without knowing more, it’s difficult to understand how knowing the identity of someone who tipped a reporter to the existence of a notebook would factor into determining whether Holmes is guilty of murder.

In deciding not to decide, the judge is giving the case more time to develop.  It’s possible that other questioning in the case may lead to the defense getting the information it wants without undercutting freedom of the press.

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