In response to pressure applied to Jana Winter, a New York-based Fox News reporter, to divulge her source regarding information about the 2012 Aurora, Colorado theater shootings, Colorado state senator Bernie Herpin has authored a bill which would strengthen Colorado’s media shield law.

Jana Winter learned of a notebook the Aurora gunman, James Holmes, sent to his psychiatrist before the shooting took place in July 2012.  Winter discussed the notebook in an article originally published on July 25, 2012.  James Holmes’ attorneys requested a Colorado District Court to compel Winter to travel to Colorado to testify who provided her with the information about the notebook.  Further, since Winter worked and lived in New York, Holmes’ attorneys instituted the proper proceedings in New York, seeking a subpoena be issued compelling Winter to testify.  Ultimately a New York Court of Appeal denied Holmes’ request, relying on New York’s media shield law, which is considered one of the strongest in the nation.

Under the current Colorado media shield law, Winter could be compelled to divulge her confidential sources or be held in contempt and face jail time if she refused.  Sen. Herpin’s bill would not only raise the burden of proof from ‘a preponderance of the evidence’ to the ‘clear and convening’ standard; it also creates a requirement that the party requesting the subpoena show the following four elements:

(1)   “the newsperson did not obtain the information in confidence;”

(2)   “the news information is highly material and relevant to a substantial issue involved in the proceeding;”

(3)   “the news information is critical or necessary to the maintenance of a party’s claim, defense, or proof of an issue material thereto; and”

(4)   “the news information is not obtainable from any alternative source.”

Sen. Herpin’s proposal would make it much more difficult to compel reporters to reveal their sources.  The Colorado Legislature’s Senate Judiciary Committee originally heard the bill on January 15, 2014, but lawmakers, wanting more time to debate the bill, delayed a vote.  During the hearing, Sen. Herpin read a statement by Winter, who wrote, “[n]o journalist should have to go through what I did, simply for doing his or her job and working to protect the public’s right to know.”

On January 27, 2014, Sen. Herpin’s bill was debated again by the Judiciary Committee and ultimately brought to a vote.  The majority of the lawmakers on the Judiciary Committee voted against the proposal, thus killing the bill.  Sen. Herpin said that he was disappointed following the vote, stating, “I think that freedom of the press acting as watchdogs of government is very important.”

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