One of the bedrocks of our governmental infrastructure is federalism. This
is the constitutional recognition of the legal origins of the United States
as a union of independent states. America started, of course, with 13
colonies, which became 13 states, and gradually added 37 additional states.
Though the federal government is a behemoth today, it was created when each
of those states ceded some of their sovereignty to the federal government.
They did this in writing. The writing is the Constitution, and it explicitly
states that the governmental powers not ceded are retained by the states.
President Reagan reminded us of the origins of the country in his first
inaugural address when he stated, "All of us need to be reminded that the
federal government did not create the states; the states created the federal
government." He also said that the beauty of the retention of powers by the
states is that they are likely to exercise those powers differently and
become laboratories of democracy -- hence, Reagan's famous quip that one of
the benefits of living in the U.S. is federalism, because "you can vote with
So, if you don't like the over-regulated Massachusetts, you can move to New
Hampshire, and if you don't like the over-taxed New Jersey, you can move to
Pennsylvania. This is easier said than done, but the principle subsists, and
as long as we have not surrendered the freedom to travel, we can still move
to more freedom-friendly states.
This is not an academic theory; it has real-world consequences for my Fox
News colleague Jana Winter. Jana is an investigative reporter for
foxnews.com. Like all good folks on her end of journalism, Jana has
developed sources. In the course of investigating the July 20, 2012,
slaughter in a movie theater in Aurora, Colo., Jana learned from sources to
whom she promised confidentiality that the alleged murderer, James Holmes,
sent a notebook to his treating psychiatrist at the University of Colorado,
a state-owned school. This information was earth-shattering for the Holmes
case because it triggered the argument that a government psychiatrist ought
to have known of Holmes' violent ideations a week before he allegedly
carried them out in a movie theater.
At the time Jana learned and reported about the Holmes notebook, all
witnesses in the Holmes case were under a court order not to speak with
anyone, least of all reporters. When Holmes' lawyers learned that Jana
reported on the notebook, they subpoenaed her notes, and lawyers for Fox
moved to quash the subpoena. Fox's lawyers argued that her sources were
protected by a Colorado shield law. That law compels lawyers who are seeking
the names of reporters' confidential sources to seek them elsewhere before
approaching the reporter. That law also permits the incarceration of
reporters who decline to obey any court order compelling the production of
the names of their sources.
Holmes' lawyers apparently want the names of Jana's sources because they
believe them to be law enforcement personnel who violated the gag order.
Criminal defense lawyers can have a field day on cross examination of cops
when they have caught the cops breaking a law they have sworn to uphold. On
the other hand, the press, which is the eyes and ears of individuals, a role
it enjoys under the First Amendment as interpreted by numerous Supreme Court
cases, would be fruitless if reporters could not promise confidentiality to
sources. This goes back to the Pentagon Papers case in which the Supreme
Court held that matters of material public interest in the hands of
reporters -- no matter how acquired -- may "freely" be published. Freely
means free from government retribution.
Here is where federalism enters the picture. Jana lives and works in New
York. She was ordered by a state judge in Colorado to reveal her sources and
threatened with incarceration. New York law does not permit incarceration
for failure to reveal sources. So, Fox's legal team filed an application in
a New York state court to block the order of the Colorado state judge. That
application was denied by a trial judge, and that denial was upheld by an
appeals panel by a 3-to-2 vote, and earlier this week, the case was argued
before New York's highest state court, the Court of Appeals.
This should be a no-brainer. Jana voted with her feet and chose to live and
work in the most First Amendment-friendly state in the union. She should be
protected by New York law. If she is not, then all reporters will lose their
confidential sources, and all Americans will be in the dark when
whistleblowers know awful truths but are unwilling to pay the price of
In this era of the Internet, all information is available everywhere all
the time. Just because the information in the Holmes case was about an event
in Colorado does not mean that Colorado law should control the fate of a New
York reporter. The controlling factor should be freedom: the freedom of
sources to reveal truths, the freedom of reporters to publish truths, and
the freedom of sources and reporters from government retribution.
There is always a common theme in these reporter sources cases, and Jana's
is no different. Invariably, the awful truth is about a failure of
government -- in this case a government psychiatrist. The government hates
and fears the truth. Yet, if the government could control the flow of news,
it would only tell us what makes it look good, and we would lack the
knowledge with which to make prudent judgment about its policies. Thomas
Jefferson once remarked that he'd prefer newspapers without government to
government without newspapers.
A proper application of federalism could save the values of the First
Amendment and the freedom of Jana Winter. If not, we face the ancient
spectacle of a courageous reporter being jailed not for committing a crime,
but for telling a truth. And the confidential sources will dry up, and the
whistleblowers will clam up, and the government will control more of our