There's a brewing legal battle over the First Amendment in Colorado, where a court has threatened a FoxNews.com reporter with jail time for refusing to reveal a confidential source for a bombshell story on the July 2012 Aurora movie theater massacre. Jana Winter obtained the contents of a notebook allegedly kept by suspected shooter James Holmes.

The notebook, which he sent to his psychiatrist, Dr. Lynne Fenton, is said to contain details about how Holmes intended to kill people. He was arrested last July and is now on

trial in the murders of 12 people.


READ: Full Background on the Jana Winter Case


Now, defense attorneys in his trial are trying to convince a court to force Winter to reveal how she obtained the notebook. They say the leak violated the judge's gag order and hurts Holmes' right to a fair trial. Winter argues she is protected by the Colorado Shield Law, which allows a journalist to keep a source confidential on a matter of material public interest.

She is fighting a judge's order to appear in court and either reveal the source or possibly go to jail.

In an op-ed for FoxNews.com yesterday, Judge Andrew Napolitano called this a “witch hunt” by Holmes’ defense attorneys that represents a threat to the First Amendment overall.

“If courts can force reporters to reveal confidential sources, then who will talk to reporters in the future, and how will inconvenient truths about the government become known?” he asked.

Megyn Kelly spoke to Judith Miller this afternoon on America Live. Miller spent 85 days in jail in 2005 for refusing to reveal a confidential source that provided information on outed CIA officer Valerie Plame. They were also joined by First Amendment attorney Floyd Abrams, who represented Miller in her case.

Megyn argued that the issue of the notebook doesn't even matter with regard to Holmes' guilt or innocence.


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"The defendant's attorneys offered to have him plead guilty. ... This is a side issue about whether a cop talked and shouldn't have," she said, explaining that Americans should pay attention to this story because of the larger First Amendment implications.

"I don't know that our viewers necessarily care what happened to Judy Miller or what happens to Jana, but they need to care," Megyn explained.

Miller lauded Winter for taking a stand on her principles, saying it's "very, very important for journalism and for a free press."

Abrams agreed with Megyn that this does not seem like a case where a judge should choose to jail a journalist, but he said if the judge does go in that direction it could be "months or longer" before Winter is released.

"The idea of this usually is that she's supposed to stay until she talks," said Abrams.

Watch the full discussion:

Part 2


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