A Fox News reporter is facing jail because she reported on a story and won’t reveal her source.
Freedom of the Press means that the news can’t be censored. One way of censoring news is to punish reporters for revealing “state secrets.” Another way is to punish government employees who leak those secrets to the press. Most people know that, if a reporter learns some truth, they can legally report it. Reporters, in our legal heritage are something like jurors. The original idea of a juror was that people from the populace are required to give the state permission before the state could imprison, fine, or kill that accused person. Likewise, journalists are supposed to be the agents of society who limit the state’s propaganda efforts. The state is an organization that can use secrecy to exploit and tyrannize the populace, but the populace can use their own resources to learn those secrets.
There is another way that the news can be censored that falls between punishing government employees for revealing secrets and punishing journalists for publishing those secrets. Sometimes states punish journalists for refusing to reveal the government source so that they can punish them. The reason this violates the First Amendment isn’t hard to figure out. If the government can simply order the reporter to deliver over the government agent who was the source of the information, then no one will trust journalists to keep their identity anonymous. This will mean that reporters won’t be able to get information.
In this case, Fox News reporter, Jana Winter reported, only a few days after the theater shooting in Aurora, Colorado, that suspect James Holmes had sent a notebook to apsychiatrist that included stick figure pictures of a gun massacre. It seems the notebook was never received until after the massacre and then under odd circumstances:
“The source said police and FBI agents were called to the University of Colorado Anschutz medical campus in Aurora on Monday morning after the psychiatrist, who is also a professor at the school, reported receiving a package believed to be from the suspect. Although that package turned out to be from someone else and harmless, a search of the Campus Services’ mailroom turned up another package sent to the psychiatrist with Holmes’ name in the return address, the source told FoxNews.com.”
So after the first package got “lost,” a second was received that was not actually related to the killing but looked like it was so that the first package with the notebook was discovered?
Because Jana Winter won’t reveal who told her about the notebook, the judge is threatening to jail her. As Judge Napolitano points out, “Putting reporters in jail for revealing the truth while protecting their sources is profoundly contrary to that purpose and highly offensive to the values the First Amendment was written to protect.”
Why is the judge going after Jana Winter? Is someone telling him that this is important? The claims that James Holmes was a lone gunman are incredibly unconvincing, leaving many questions ignored rather than answered. The defense claims the leak hurts their case, but that hardly seems credible since they have already plead guilty for him. It seems more likely that the notebook would reveal evidence of an insanity defense—which means the guilty plea is a disservice to Holmes and to us who want to see all the witnesses and evidence accounted for.
Perhaps someone is worried that Jana Winter’s source is someone who knows enough to disturb the government’s lone gun nut story. But, whatever the reason, the state must not be permitted to have a monopoly on truth. Public crimes are not the private secrets of the government.