Saturday, November 9, 2013

Will Freedom of the Press Fall in Winter?

I like to consider myself a "Constitutionalist" - I'm a big fan of the United States Constitution. I believe it to be one of the most inspired governmental documents that mankind has ever conceived.

I believe that in court rulings it should be interpreted narrowly by modern jurists.

I also believe that the Constitution as originally conceived by our nation's Founding Fathers was inspired by God Almighty, and that America has received blessings over our history because of a continued striving towards what we stated from the very beginning when we declared ourselves free: that "men are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness."

The U.S. Constitution has built into it an 'amendment' process, a means of altering, adding to, or taking away from the freedoms guaranteed to "We the People" by our nation and it's laws.

This amendment process has been successfully utilized to do just that in the past. There have been 27 amendments to the Constitution which have been 'ratified', or passed into law by the states.

The first ten of these amendments came almost immediately. Within a couple of years of the original Constitution being ratified, the first ten amendments had been proposed and added.


They became collectively known as the "Bill of Rights", and contain protections to freedoms that we all as Americans have come to take for granted. Included among them was this very first amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

There is divinely inspired genius right there in the body of the First Amendment. It encapsulates in a few sentences our basic freedoms of religion (not from religion, by the way), our freedom of speech, our free press, and our right to gather in protest of the government itself when we have legitimate grievances.

Why was a freedom "of the press" deemed to be so important? It is my position that it was of basic, fundamental importance back then in colonial times, and remains just as important today. This freedom, like many others in that beautiful document, is under attack from a government that increasingly does not like being restricted by such constitutional principles.

Let me preface this particular discussion also with the fact that my choice of professions has been in law enforcement. I have been an American law enforcement officer for more than 23 years. Between myself and other members of my family, we have served our municipality in this role for more than a half century.

I make that preface in admittance of the fact that there has always been and will continue to be a tension at times between the two professions of law enforcement and the media. We recognize the importance and necessity of their role, but we always strive to ensure our first priority of protecting evidence and preserving certain facts and knowledge as we pursue justice for victims of criminal acts.

The media simply should not have the absolute final say in releasing all the details to the public of the "who, what, when, where, why, and how" of every crime.

I think we can all agree on the common sense of wanting to protect certain aspects of an investigation for public safety and/or prosecutorial reasons. Sometimes we disagree with the media on the particulars, and these circumstances are often decided by judges in the specific court cases.

We have to try to ensure that people do indeed receive a fair trial, which would be pretty difficult if the media presented all of the evidence and testimony on public news broadcasts before and during such legal proceedings, that much is obvious to anyone. Cases simply cannot be tried through television presentations by TV anchors and reporters.

The role of the media is to keep the public informed. They also have an investigative role: to ensure that the public is indeed receiving truthful information from not only law enforcement, but the government as a whole. This is the vital import of the purpose of including a "Freedom of the Press" within the First Amendment: to ensure that a corrupt government, or individual corrupt officials, or specific corrupt instances do not occur without the knowledge of the American people.

All of this prefaces the current case of Fox News reporter Jana Winter, who is under attack from the state of Colorado in relation to her reporting on the sensational case of mass murderer James Holmes. He is the man who went on a shooting rampage inside an Aurora, Colorado movie theater, killing 12 and injuring dozens more during a premier showing of the film "Batman, The Dark Knight Rises" in July 2012.

Less than a week after the shooting, Winter reported that Holmes had sent a notebook which supposedly contains written descriptions, drawings and other illustrations of the attack he was then planning to a University of Colorado psychiatrist prior to the shooting. Winter claimed that she had received the information regarding the notebook from unidentified "law enforcement sources." There is a belief that this notebook sat unopened in the university mail room for as much as a week prior to the shooting.

Defense attorneys were disturbed by Winter's reporting, claiming that it violated a judge's gag order, and that it denied Holmes a fair trial by leaking potentially incriminating information. Various law enforcement officers were interviewed, and all denied being the source. The judge in the case then ordered Winters to turn over all of her relevant materials by this coming January.

On her side, Winter has denied the court's request. She has traveled to Colorado from her New York home base four times in relation to the case. She claims that the right to protect her sources is guaranteed by the First Amendment, and even additionally by New York's media shield laws which give reporters in the Empire State absolute protections in confidential newsgathering, including a right to keep sources private.

Colorado has similar media shield laws, but they are far less protective for reporters, and include that members of the media can be jailed for refusal to name sources, which cannot happen in New York. In short, if ultimately forced to travel to Colorado in January and turn over the materials, and on refusal of same, she could be jailed until such times as she complies with the judge's order.

Winter has been fighting against being forced to turn over the information. In New York, she narrowly lost a 3-2 decision in a lower court back in March. One of the dissenting judge's noted the importance of her stand when he commented that she "relies upon confidential sources for her livelihood" further stating that "her sources would not speak to her if she divulged their identities." The judge also correctly pointed out that forcing her to release these sources would be "nothing short of undermining her career, the very means of her livelihood."

This coming Tuesday, Jana Winter will return to court, this time in Albany in front of the highest court in the state. There the New York State Court of Appeals will hear her plea to reverse that lower court ruling. It may be her last chance to lawfully avoid that January trip to Colorado where her credibility or her freedom will be put on the stand.

It's a shame that things have reached this stage in the United States of America. Jana Winter didn't kill anyone, James Holmes did, and that is where all of the focus and effort should be in this case. Winter is simply a reporter who was given interesting information in a high-profile case by a member of law enforcement. She then reported on the information, which was indeed interesting at the time, under the belief that reporting from New York she had certain protections.

The information released by Winter was no more sensational than what Holmes actually did, in fact it was far less. Holmes walked into a movie theater and in front of hundreds of witnesses he blasted away at the heart of a Colorado community. There is tons of evidence against James Holmes. The simple revelation of the existence of the journal and drawings does nothing to change what Holmes did that night, and nothing that alters his guilt.

There are legitimate issues raised by the presence of the journal and the drawings. Did someone know about the intentions of James Holmes before the shooting took place? Was someone informed who then chose to ignore or lessen the importance of the information? Did the university or any of it's employees, even law enforcement itself have any knowledge of the danger posed by Holmes prior to the shooting?

Even if none of them knew, could they or should they have known? The public has a legitimate right to know whether Holmes attack could have been avoided.

From where I sit, seeing both sides of the issue, this is simply an attack against the First Amendment itself. Yes, the media has responsibilities. A responsibility to respect the criminal case. A responsibility to not release vital evidence of importance to the successful defense or prosecution of a criminal case. I fail to see how that responsibility was abridged in this case.

The media also has a responsibility to the public, and it also has Constitutional rights in pursuing and ensuring that it meets that responsibility. That right to truthfully and completely report a story on behalf of the American public is what Jana Winter did on Fox News. Let's hope the higher court makes the right decision in the coming week, for her, and for all of us.

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