Whatever direction the Supreme Court and others take regarding First Amendment defenses and challenges to press freedom, it’s clear that plaintiff’s lawyers will continue to find ways to impose liability on journalists who violate standards about what is acceptable. Some of those tactics, such as the ride-along, position the media’s First Amendment protection directly in opposition to other constitutional protections, such as the Fourth Amendment. “If we’re really here to serve the public trust and honor the First Amendment, you’ve got to honor the amendments that come after that,” said Detroit’s Carey. “You don’t need to be so above it all that you don’t consider whether the ramifications and the story-gathering technique invades rights of citizens.” Even if the courts afford First Amendment protection to journalists and the media win in the end, the cost of defending news practices before a jury will toll financially as well as in public support for the news profession. “When plaintiff’s lawyers plead cases, they plead everything. And to that extent they can get by the First Amendment by using weird torts,” said Fritz of Allbritton Communications Co. “Clever plaintiff’s lawyers read the Supreme Court.” Unless journalists find and employ legal and ethical methods to report the news, the entire profession is likely to suffer from these “weird torts.”
Karen E. Klein is an SPJ Pulliam/Kilgore intern at Baker and Hostetler, SPJ’s legal counsel in Washington, D.C. She is a second-year law student at Indiana University in Bloomington.