Colorado massacre, the First Amendment and Fox News

Jana Winter, an investigative reporter for Fox News, faces the prospect of serious jail time for being a good journalist. Seriously.

Most of the accounts you may read won't describe her predicament quite that way. But make no mistake: A state judge could demand that Winter either divulge the names of confidential sources who gave her information she reported about last July's shooting rampage in a Colorado movie theater or spend time in jail for refusing to do so.

This potential travesty of justice began July 20 when Winter flew to Denver from New York to help cover the mass shooting in Aurora in which 12 people were killed and 58 injured.

She hit the ground running — reporting, as did others, that law enforcement believed James Holmes, the suspect, had planned his attack "with calculation and deliberation" because he was packing as many as 6,000 rounds of ammunition and had booby-trapped his apartment to kill the first people who entered.

That same day, she filed her first exclusive: a report disclosing that less than a month before the midnight movie massacre, Holmes had applied for membership at a private gun range. Tracking down the club's owner, she reported that the owner had been unnerved by his calls to Holmes' home telephone after hearing what he described as a "creepy" and "weird" message on his answering machine.

Then, on July 25, quoting unidentified law enforcement sources, she accurately disclosed that Holmes had sent a notebook "full of details about how he was going to kill people" to a University of Colorado psychiatrist before the attack. The notebook contained "drawings of what he was going to do in it — drawings and illustrations of the massacre," her sources told her. "Among the images," she reported, were "gun-wielding stick figures blowing away other stick figures."

Winter had gotten a world-class scoop that shed light on the crucial question of what had motivated the alleged crime. But Holmes' defense attorneys complained that her unidentified sources had violated the judge's gag order on the public release of such information by speaking to her. Fourteen law enforcement officials have so far denied being an unidentified source on the notebook story; now a Colorado court may order Winter to testify about who gave her the information.

Winter's words are painfully familiar. I know, firsthand, that there is no more difficult choice for a journalist than the one she may face. In 2005, I spent 85 days in a jail in Virginia trying to protect sources in the government's inquiry into who leaked the name of CIA operative Valerie Plame, about whom I never wrote a story. I, too, had pledged confidentiality to several sources. Only a source's specific waiver of that pledge enabled me to leave jail.

The incident was traumatic for me, my family, my sources and the New York Times, for which I then worked. Its professional and emotional effects continue to this day. It was also expensive — well more than $1 million in legal fees. Fewer and fewer news organizations can afford to fight for the right to publish information in the public interest that the government does not want them to know.

Yes, there is a conflict here between freedom of the press, the court's gag order and Holmes' right not to be prejudged by information that may make it harder to impanel an objective jury. But on Friday, the court's disclosure of documents showing that Holmes' psychiatrist warned University of Colorado campus police a month before the massacre that Holmes was dangerous goes far beyond what Winter made public. Neither revealing her sources now nor putting her in jail would make a difference in Holmes' securing a fair trial.

A nation cannot remain free if the government alone decides what information its citizens are entitled to have. The Constitution's framers well understood the need for an independent press when they enshrined, in the First Amendment, the right to speak and publish freely. Government attempts to restrict that freedom only prove the point.

In a new book, "Fighting for the Press," James C. Goodale, who defended the New York Times and supported me in my struggle to protect my sources, warns that the government's effort to keep information secret and the public in the dark by punishing leakers is intensifying. President Obama, he writes, has indicted more leakers "than any other president in the history of this country."

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