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

donna martin graduatesThe New York state court of appeals (the highest
court in the state of New York) today
, 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)

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

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

from Hit & Run

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