# Fox reporter and confidential sources **URL:** \ **Category:** In My Humble Opinion\ **Created:** [April 8, 2013, 3:59pm UTC](https://boards.straightdope.com/t/fox-reporter-and-confidential-sources/655160 "2013-04-08T15:59:31Z")\ **Posts on this page:** 6\ **Page:** 1
**Author:** ![ducati](https://avatars.discourse-cdn.com/v4/letter/d/cc9497/32.png) [@ducati](https://boards.straightdope.com/u/ducati)\ **Post date:** [April 8, 2013, 3:59pm UTC](https://boards.straightdope.com/t/fox-reporter-and-confidential-sources/655160/1 "2013-04-08T15:59:31Z")
There may be just one answer to this, but I’ll start here. James Holmes is facing a trial for the shooting in Aurora, CO last year where he killed 12 people and injured many more. Also facing possible jail time is Fox News reporter [Jana Winter.](http://www.foxnews.com/opinion/2013/04/08/fox-news-reporter-dilemma-should-trouble-all-americans/) \*\* Winter is currently facing a jail sentence for refusing to reveal the sources who provided her with alleged Aurora shooter James Holmes’ notebook, which he had sent to a psychiatrist and which was"full of details about how he was going to kill people." Holmes’ defense attorneys subpoenaed Winter to testify about who told her about the notebook and a Colorado judge has said that he will rule on April 10thwhether Winter must reveal her source or face jail time for refusing to testify.\*\* I assume most of us know that our first amendment rights protect reporters from revealing confidential sources of information. My question about this matter is, do reporters have protection regarding actual or possible evidence? Does it matter who handed the information to her, or when she got it. Was it seized as evidence and then “leaked” to bolster the state’s case or poison the jury pool? Did someone violate a gag order as stated by the defense? Do any of these questions even matter? Is the 1A blanket so large as to cover any circumstance, or is there something I missed in civics class or Law & Order reruns? So, slippery slope supporters, step up and share your suppositions or silly stance on the subject and soothe my shattered psyche so I feel safe when selecting secret sources for my next suspenseful story: Secrets of Coelenerate Obsolesence; A Study of Taxonomical Intrigue and Change. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [April 8, 2013, 4:04pm UTC](https://boards.straightdope.com/t/fox-reporter-and-confidential-sources/655160/2 "2013-04-08T16:04:07Z")
> [@ducati](#): > > I assume most of us know that our first amendment rights protect reporters from revealing confidential sources of information. I don’t know that. I understand that some (maybe most?) states have shield laws to protect reporters, but that doesn’t have to do with First Amendment protections. [Judith Miller](http://en.wikipedia.org/wiki/Reporter's_privilege#Judith_Miller_brings_reporter.27s_privilege_to_the_forefront_of_media_attention) went to jail to protect her sources, and Federal appeals courts consistently rules against her claims of First Amendment protection. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 8, 2013, 4:17pm UTC](https://boards.straightdope.com/t/fox-reporter-and-confidential-sources/655160/3 "2013-04-08T16:17:47Z")
> [@ducati](#): > > I assume most of us know that our first amendment rights protect reporters from revealing confidential sources of information. You assume very wrongly. I’m sure most of us know what the Supreme Court said in _Branzburg v. Hayes_, 408 U.S. 665 (1972): > [@](#): > > The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not. > . > . > . > Petitioners Branzburg and Pappas and respondent Caldwell press First Amendment claims that may be simply put: that to gather news it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury, the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment. > . > . > . > Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do. ---
**Author:** ![Asimovian](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asimovian/32/172_2.png) [@Asimovian](https://boards.straightdope.com/u/Asimovian)\ **Post date:** [April 8, 2013, 4:26pm UTC](https://boards.straightdope.com/t/fox-reporter-and-confidential-sources/655160/4 "2013-04-08T16:26:21Z")
**Bricker** , a question asked out of complete ignorance. Was the ruling in _Branzburg_ intended, per your quoted section, to apply solely to grand juries, or is it intended to apply to any sworn testimony (or have their been subsequent rulings that have expanded it thusly)? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 8, 2013, 4:43pm UTC](https://boards.straightdope.com/t/fox-reporter-and-confidential-sources/655160/5 "2013-04-08T16:43:53Z")
> [@Asimovian](#): > > **Bricker** , a question asked out of complete ignorance. Was the ruling in _Branzburg_ intended, per your quoted section, to apply solely to grand juries, or is it intended to apply to any sworn testimony (or have their been subsequent rulings that have expanded it thusly)? Branzburg itself was about grand jury testimony, so I suppose one might argue that the more sweeping language that no testimonial privilege exists is dicta. But subsequent rulings have applied the principle more generally: the First Amendment does not absolutely shield a reporter from having to testify, period, whether before a grand or petit jury, about his sources. Some circuit courts have crafted balancing tests, like the Third Circuit’s in Cuthbertson: (1) that the information sought in both evidentiary and relevant (2) that it is not otherwise procurable reasonably in advance of trial by exercise of due diligence (3) that the party requesting the information cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial (4) that the application is made in good faith and is not intended as a general ‘fishing expedition.’ These are generally grounded in the First Amendment. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 8, 2013, 4:48pm UTC](https://boards.straightdope.com/t/fox-reporter-and-confidential-sources/655160/6 "2013-04-08T16:48:45Z")
My favorite from this line of cases is _United States v. Burke_, 700 F. 2d 70 (2nd Cir 1983). This was the fallout from a point-shaving scheme involving Boston College’s hoops team and the gangster Henry Hill, who wrote an article for Sports Illustrated called “How I Put The Fix In.” Hill was served by subpoena by one of the accused (Hill himself had immunity for his participation) seeking information about his sources, presumably in an effort to take the heat off the accused.