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Hogan Lovells Scores Major Victory in High-Profile Freedom of the Press Case

10 December 2013

New York, 10 December 2013 –New York’s highest court today issued a decision quashing a subpoena to Fox News reporter Jana Winter to testify as a witness in the James Holmes murder proceeding in Colorado. The subpoena called for Winter to reveal her confidential sources.

The court’s opinion holds that New York has a strong public policy that bars such subpoenas. The court traced that robust public policy back to New York’s colonial era, emphasizing that this “common law, statutory and constitutional tradition . . . has played a significant role in this State becoming the media capital of the country if not the world.”

“Today's decision is a landmark ruling for press freedom. The court has held that a New York reporter should never be threatened with jail just for doing her job of informing the public,” said Hogan Lovells appellate partner Chris Handman, who argued the case on 12 November.

In a 4-3 decision, the New York Court of Appeals reversed the Appellate Division and ordered the subpoena quashed. The decision arrived less than a month after oral argument and conclusively determines that Jana Winter will not be required to appear in Colorado any further, nor face the threat of jail time.

“This is not only a victory for Jana Winter, but a win for all journalists and the public because it supports the right to know information from confidential sources,” said Dori Hanswirth, head of the Hogan Lovells New York-based Media Law Group and Winter’s lead counsel.

Winter had been under subpoena to testify about confidential sources relating to her coverage of a movie theater shooting in Aurora, Colorado, in 2012. She reported that a “chilling notebook” had been sent to the University of Colorado by the defendant James Holmes, citing two unnamed law enforcement officials as her sources. The lower court in New York approved of a subpoena directing Winter to appear and testify in the Colorado case. The Colorado court ordered Winter’s appearance for 3 January 2014.

In representing Winter in the New York Court of Appeals, the Hogan Lovells team maintained that forcing Winter to travel out-of-state for the purpose of revealing her confidential sources violated New York’s clear policy and tradition “of providing the utmost protection of freedom of the press.” That policy was evidenced by New York’s Shield Law for journalists, the strongest such law in the nation. The Court of Appeals agreed, finding that “safeguarding the anonymity of those who provide information in confidence is perhaps the core principle of New York’s journalistic privilege.” According to the Court of Appeals, this principle represented a “New York public policy of the highest order,” and forcing Winter to travel to Colorado to testify “would offend our strong public policy” and “the core protection of the Shield Law.”

The Hogan Lovells team advising Jana Winter was led by litigation partners Dori Ann Hanswirth (New York), Chris Handman (Washington), and Michael Theis (Denver), supported by associates Theresa House, Nathaniel Boyer, Benjamin Fleming, Patsy Wilson (New York), Sean Marotta (Washington), Christopher Murray, Korey Christensen, Toren Evers-Mushovic, and Emily Lyons (Denver).

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