New York High Court Dismisses Subpoena Issued Against Fox News Reporter Over Confidential Sources

Jana Winter won't be compelled to testify about her confidential sources


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Fox News

The New York state court of appeals (the highest court in the state of New York) today reversed, in a 4-3 decision, the ruling of a lower court (called the Supreme Court) that had issued a subpoena for Fox News reporter Jana Winter to testify in Colorado about the identity of her confidential sources in the James Holmes case. Holmes' attorneys had gone after Winter, alleging her sources must have broken their own confidentiality agreements.  After reviewing the applicable state journalist "shield law," the state constitution, and previous case law, the court ruled (pdf) that:

It is therefore evident… that a New York court could not compel Winter to reveal the identity of the sources that supplied information to her in relation to her online news article about Holmes' notebook. Holmes does not argue otherwise but relies on our decision in Matter of Codey (Capital Cities, Am. Broadcasting Corp.) (supra, 82 NY2d 521) for the proposition that, when New York functions as the "sending state" in relation to a CPL 640.10(2) application, issues concerning testimonial privilege—including the applicability of the absolute privilege afforded by the Shield Law – simply cannot be considered by a New York court.

The majority opinion dismissed Holmes' argument because the Codey case involved New Jersey, which has shield laws similar to New York's, while the Winter case involved Colorado, which has much weaker journalist protections. Winter faced jail time if she were to refuse, as she had planned, to testify in Colorado. The dissenting opinion focused on the perceived overreach of the majority's decision, claiming that it has extended the state's shield laws throughout the country and around the world, something other jurisdictions, the dissent argued, might not honor.

Judge Andrew Napolitano argued why concepts of federalism should protect Winter earlier last month.

UPDATE: Fox News provided the following comment to us from Chairman & CEO Roger Ailes: "Today's ruling is a major win for all journalists. The protection of Jana Winter's confidential sources was necessary for the survival of journalism and democracy as a whole. We are very grateful that the highest court in New York State agreed with our position."