New York Court Won't Order Fox Reporter to Testify, Shoring Up State Shield Law

A New York State shield law protecting journalists was bolstered Tuesday when the state's highest court refused to require a Fox News reporter to return to Colorado to testify in the case of James E. Holmes, the man accused of shooting 12 people in July 2012 in a movie theater in Aurora, Colo.

Jana Winter, of Fox News, refused to reveal a confidential source in her reporting on the 2012 slayings in Aurora, Colo.

In unusually strong language, the New York Court of Appeals wrote, “There is no principle more fundamental or well-established than the right of a reporter to refuse to divulge a confidential source.” First Amendment experts said that the ruling, written by a 4 to 3 majority on the court, could make New York, already the home to numerous media companies, a kind of safe haven for journalists.

“This is a ringing endorsement of New York shield law and establishes that it has real teeth,” said Elizabeth McNamara, a media lawyer with the New York firm Davis, Wright & Tremaine. “The shield law goes back a long time and it has been a real element in establishing the publishing industry here in New York. This is an important decision in that it enforces the fact that journalists can make commitments to sources and they will be binding.”

But Daniel N. Arshack, of Arshack, Hajek & Lehrman, the New York counsel to Mr. Holmes, called the decision “unprecedented” and dangerous. “There is no prior case that carves out a kind of witness that will not be produced when requested by other states,” he said in a phone interview.

The ruling is only significant for state law and will have no effect on federal First Amendment cases.

After the shooting, Jana Winter, a New York-based employee of Fox News, was sent to Aurora on assignment and reported that Mr. Holmes had sent a notebook full of details of how he was going to kill people to a psychiatrist before the attack.

Lawyers for Mr. Holmes subsequently asked for sanctions in his criminal case, saying that the government had violated their client's rights by leaking the information while a gag order was in place. Law enforcement officials denied leaking the information, and Mr. Holmes's lawyers requested that the New York courts compel Ms. Winter to return to Colorado to testify to determine the truth of the situation.

The Manhattan Supreme Court, a lower court, granted a subpoena to do just that and Ms. Winter, concerned that she would be jailed in Colorado for refusing to give up her sources, appealed the case all the way to Albany. The highest court's ruling means that Ms. Winter's trials are done, according to her lawyer.

“The case is over as far as Jana is concerned and there is no chance that she will be forced to testify,” said Dori Hanswirth, of Hogan Lovells, the lead lawyer for Ms. Winter. She emphasized the case was bigger than her client. “It is certainly telling New York journalists that you are protected even if you travel outside of the state.”

But Mr. Arshack said his side was still evaluating whether they had options under federal or Colorado law. In a written statement, he elaborated further on his objections to letting the ruling stand unchallenged.

“The decision undermines the ability of prosecutors and the defense alike, across the country, to compel the attendance of witnesses in criminal cases. This is a death penalty case in which the credibility of law enforcement witnesses may determine whether a man lives or dies. To withhold testimony which could affect that decision simply shocks the conscience,” he wrote.

Derigan Silver, an assistant professor specializing in media law at the University of Denver, said he agreed that the ruling set a precedent and one that enhanced New York's position as a safe haven for journalists.

“It is a pretty strong opinion on principle,” he said. “The judges are not just looking at the language of the statute, they talk of tradition and common law, and what makes New York special. If you read it that way it is kind of like saying ‘Come here, do your reporting from New York, and we will protect you.' ”

This article has been revised to reflect the following correction:

Correction: December 12, 2013

An article on Wednesday about a refusal by the New York Court of Appeals to require a Fox News reporter to return to Colorado to testify in the case of a 2012 shooting in a movie theater in Aurora misstated part of the name of the law firm of Elizabeth McNamara, a media lawyer who commented on the ruling. It is Davis, Wright & Tremaine - not Travis, Wright & Tremaine.

A version of this article appears in print on December 11, 2013, on page B3 of the New York edition with the headline: New York Court Won't Order Fox Reporter to Testify, Shoring Up State Shield Law.