INTRODUCTION For decades, the media hid behind their First Amendment protection as if it were an impenetrable shield. Whatever was done in furtherance of its mission as the Fourth Estate and as the people’s watchdog on government was protected behind that shield. And the First Amendment’s right to publish information seemed to carry with it an implicit right to report, or gather, that information. In 1972, the U.S. Supreme Court gave journalists a slight bit of encouragement in that direction when it endorsed “some” newsgathering rights of the media. “Without some protection for seeking out the news, freedom of the press could be eviscerated,” the justices wrote in the case of Branzburg vs. Hayes. That case hinged on whether journalists could be compelled by a grand jury to reveal the identity of a confidential source. Despite the apparent promise of protection the Supreme Court offered journalists, it held that the reporter could be ordered to testify, stating that “the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.” In the 30 years since that decision, judges have struggled with just what the Supreme Court meant when it spoke of “some” protection. In 1991, the high court gave additional direction in Cohen vs. Cowles Media Co. In that case, the court indicated, ironically, that journalists who break a promise of confidentiality to a source could be held liable for any injury the person suffers from the broken promise. Nevertheless, some journalists and media lawyers continue to argue that generally applicable laws shouldn’t apply to them. Outside of the courtroom arena, journalists who employ sometimes unethical newsgathering techniques defend those actions to critics with a Machiavellian answer: the results obtained (such as a president’s resignation or revelations about consumer fraud or unsanitary conditions at a deli) “justified” reporters and editors lying and employing other less-than-aboveboard techniques to gain access to information for the story. When people complain that tactics are becoming more offensive, some journalists point to the era of yellow journalism as an example of when behavior was even worse than it is now, and they say that difficult times called for difficult approaches. As an example of the use of such tactics to effect change, journalist Upton Sinclair worked undercover to reveal wrongdoing in the Chicago meat-packing industry, resulting in his historic book “The Jungle.” Perhaps the oldest nemesis for newsgathering is invasion of privacy. In 1890, two Boston lawyers, Samuel D. Warren and Louis D. Brandeis, published a landmark article in Harvard Law Review arguing for greater protections for individual privacy. They addressed in particular recent technology that allowed surreptitious photography: “Now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation,” they wrote. But just as Warren and Brandeis argued for greater protections for individual privacy 110 years ago, the two recognized that public interest can trump privacy concerns: “The right to privacy does not prohibit any publication of matter which is of public or general interest. … There are persons who…, in varying degrees, have renounced the right to live their lives screened from public observation.” Privacy torts fall into four categories with only one of those – intrusion – affecting newsgathering operations. The other prongs of the privacy tort are publication of private facts, false light and misappropriation. Publication of private facts, involving news content, frequently finds protection in a defense that the information is “newsworthy.” False light often sounds in libel and defamation, with similar protections. And misappropriation of likeness generally applies to commercial communications, not news. For years, invasion of privacy by intrusion was the most-often-used attack on journalistic newsgathering. However, in a 1993 supplement to his treatise Libel and Privacy, Bruce W. Sanford of Baker & Hostetler LLP warned: “To the extent that editorial judgments exploit people, the law will find new ways to redress injury.” In recent decades, critics of the media have found those new ways and are forcing news organizations to re-evaluate how they do their jobs. Even journalists who use accepted techniques that have gone unchallenged legally now must defend their actions. Bill Carey, news director at WXYZ-TV in Detroit, says the public’s attitude about the media has changed significantly since he got in the business. “Right after Watergate, the press could do no wrong. There was an expectation that we were jumping through windows, all in the name of truth,” Carey said. “But now the pendulum has swung, and we have to prove that we’re the good guys. … We’re in a climate that we’re guilty, not innocent, first.” Plaintiffs received encouragement that attacking newsgathering techniques represented an appealing alternative to attacking news content with the Supreme Court’s 1991 decision in Cohen. Even if news organizations win in the end, legal defenses often are costly. Barbara W. Wall and John P. Borger wrote in Communications Lawyer that “broken promise” claims such as in Cohen are easy to make and expensive to defend. That argument holds weight for other newsgathering tort claims as well. “For a long time, it was very, very difficult to bring libel action around stations because [the media would] pretty much win all the time,” said Jerald Fritz, senior vice president at Allbritton Communications Co. “We find a lot more people willing to go ahead and invoke the procedure of the court system [with other types of claims]. In the past two or three years, people are more willing to file a lawsuit. … In terms of nuisance value, they’ll get something.” Among recent litigation results involving journalists in their efforts to report the news is a Supreme Court opinion that may force reporters to abandon the tried-and-true technique of riding with police to report on law enforcement action as it unfolds, and a multimillion-dollar jury verdict (eventually reduced by an appeals court to a few dollars) against a news organization whose employees misrepresented themselves to get inside a chain of grocery stores with hidden cameras and microphones. This report examines a number of ways in which recent courts have reviewed how journalists conduct themselves in pursuit of the news: 1) intentionally deceiving sources to gain access to information; 2) using illegally obtained electronic information such as phone call interceptions or audiotapes where the media wasn’t involved in the interception; 3) accompanying police officers into homes and other private places in their execution of warrants; and 4) trespassing on private or restricted property while reporting the news. Although in many cases the news organizations involved in these legal disputes may have won their individual battles – often on very narrow grounds – wars are being lost as courts set precedents that could have repercussions for the media for decades to come. Part I
A Magazine by the Society of Professional Journalists
