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Article Excerpt
I. THE FIRST AMENDMENT PROBLEM
A. Defining News in the Public Interest II. COHEN, FOOD LION, AND DESNICK III. THE CONTINUING LEGACY OF COHEN, FOOD LION, AND DESNICK A. Cohen Clones B. Reputation Claims in Disguise C. Promises Broken D. Surreptitious Newsgathering E. Possible Solutions 1. Do Nothing 2. The Media Should Change 3. Courts Should Provide More Press Protection IV. TESTERS AND REPORTERS A. Testers and the Law B. Journalists As Testers CONCLUSION
The use of undercover techniques and deception to gather news, which became a hot topic for journalists and media attorneys after the highly publicized Food Lion incident in the 1990s, (1) recently resurfaced as a controversial issue as a result of NBC's To Catch a Predator series on the Dateline news magazine show. (2) The series, in which NBC worked with police agencies and an Internet watchdog group called Perverted Justice (3) to lure men who allegedly wanted to have sex with minors they met online to decoy houses to be humiliated on TV and then arrested, has apparently lost its luster. (4) In 2008, NBC Universal the network's parent company, settled a lawsuit filed by the family of a prosecutor who committed suicide in Texas when police and a Dateline crew surrounded his home after he failed to show up at a decoy house. (5) In refusing to dismiss some of the claims against NBC, the judge in the lawsuit became one of the latest individuals to suggest that NBC had violated journalistic ethics and common decency to boost ratings. (6)
The Predator controversy both illuminates and obscures legal issues about surreptitious reporting. Moreover, Food Lion and similar cases have raised more questions than they have answered about the legal boundaries for newsgathering behavior. These questions include: To what extent, if any, are journalists protected from tort actions when they engage in fraud or other questionable behavior to research a story? To what extent does the public interest served by a story mitigate tort liability? Is there a way to protect newsgathering methods that are fraudulent, deceptive, or intrusive if they serve the public interest but not if they are used for arguably less honorable ends?
This Article examines these and other questions and offers a possible solution to the problem of holding journalists liable for their methods of newsgathering when the news has high public-interest value. In Part I, the Article examines the formidable problem created by the Supreme Court's First Amendment jurisprudence, which generally has not recognized any special rights protecting the news media's activities. Assuming that the precedents are not completely dispositive in regard to the topic explored here, the Article turns in Part II to examining the legacy of Cohen v. Cowles Media Co. (7) and its most high-profile progeny, Food Lion (8) and Desnick, (9) which together demonstrate the disparities in the ways that the courts have judged newsgathering torts and balanced plaintiffs' damages against the public interest in the stories. Part III more closely examines the less-famous progeny of Cohen to identify the inconsistencies and other doctrinal problems the decision has caused, and it discusses earlier suggestions for solutions to the problems. Part IV presents a possible solution to the problem of balancing the legitimate concerns of investigative journalists with the need to protect subjects of news stories from blatantly unethical and illegal newsgathering tactics when the stories serve little or no public interest. Specifically, Part IV examines whether an existing doctrine for "testers" would be applicable to cases in which news gatherers are the defendants. Part V offers additional analysis and concluding remarks.
I. THE FIRST AMENDMENT PROBLEM
[L]iberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. (10) The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring fulfillment to the public's right to know. The right to know is crucial to the governing powers of the people.... Knowledge is essential to informed decisions. (11)
As the two quotes above from Branzburg v. Hayes (12) demonstrate, members of the Supreme Court of the United States have often disagreed about the meaning of the Press Clause of the First Amendment. (13) Although individual Justices have argued that the press serves a special function in a democracy and therefore needs more protection than the "lonely pamphleteer," arguments for special protections have not prevailed. First Amendment historian Margaret Blanchard once noted that among the most consistent lines of Supreme Court reasoning is that First Amendment press and speech rights accrue to individuals, not institutions or journalists in their capacity as journalists, and are inseparable from each other. (14) Professor Blanchard was writing thirty years ago, but her remarks are still accurate, at least on the surface. (15) One recent noteworthy examination of the Supreme Court's Press Clause jurisprudence challenges this traditional interpretation of the Court's rulings and suggests that the Court has quietly recognized press rights separate from individual rights in privacy and taxation cases, among others. (16) The more traditional view remains that the Court has steadfastly refused to grant any "institutional" rights associated with the First Amendment, possibly to the detriment of both institutions and individuals. (17)
It is not uncommon for academic theory about the meaning of a particular part of the Constitution to be at odds with Supreme Court jurisprudence. That is certainly true regarding the Press Clause of the First Amendment. Part of the problem stems from the Framers' near silence on why freedom of the press was protected under the Bill of Rights. (18) Equally unclear is what exactly the phrase "freedom of the press" meant to the Framers and why both freedom of speech and of the press are protected separately. (19) Given the vast changes in society and the media in the two centuries since the First Amendment was ratified, it is not clear that the Framers' intent in regard to a free press should be a major concern today. Arguably, the lack of guidance from the Framers about the meaning of press freedom could explain the nature of Supreme Court jurisprudence regarding press claims of special First Amendment protections.
Those who suggest that the writers of the First Amendment meant for the words "speech" and "press" to mean two different things often describe the difference between the two words in instrumental terms--what purpose is served by free speech and a free press? For example, Professor Melville Nimmer suggested that speech and press rights serve similar interests but with some distinctions. (20) If the speech right is viewed as an individual right of free expression, then it serves three major functions: a conduit for democratic dialogue, a source of "self-fulfillment" for the speaker, and a "safety valve" through which persons can express themselves without resorting to violence. (21) The press, meanwhile, through its informing and opinion-shaping functions, is more significant than individual speech in the democratic dialogue function but less significant to the self-fulfillment and "safety valve" functions. (22)
Professor Nimmer also noted that the debates about the First Amendment in Congress before the Bill of Rights was sent to the states for ratification did not imply a distinction between speech and press. One inference that he suggested was plausible from the language of the First Amendment was that the Framers merely wanted to make sure that both oral expression (speech) and written expression (press) were protected from abridgement. (23)
Other writers have suggested that Professor Nimmer might have underestimated the value that the Framers placed on the institutional press. For example, Justice Potter Stewart said in a 1974 speech that examining original intent would favor a view of the Press Clause as a protection specifically for the institutional media. (24) Justice Stewart argued that the Press Clause would be a "constitutional redundancy" if it was only meant to protect individuals' expressive acts, because the speech clause already served that function. (25) Instead, he argued that the Framers intended to protect the press as an autonomous "Fourth Estate" to serve as a check on the three official branches of government. (26)
The idea that a key purpose of the Press Clause is to enable the press to act as a check on government is popular in literature about the First Amendment, although not everyone limits the responsibility of keeping an eye on government to the press. Professor Vincent Blasi has suggested that the First Amendment serves to facilitate the people's rein on government power. (27) He has argued that both the press and the public constitute the Fourth Estate and act as a check when they exercise all of the rights enumerated in the First Amendment, including the rights to free speech, association, and petition. (28)
Professor C. Edwin Baker has suggested that there are many possible theories about how a democracy should work or does work, and that each theory carries a different set of priorities for the press. (29) All of the democratic theories would favor, at the least, a "watchdog" function for the press to keep a check on government. (30) The watchdog analogy, prominent in journalism lore, was a popular defense for journalists facing criminal or civil libel actions or contempt charges for publishing opinions about pending cases as far back as the mid-1800s. (31) In essence, journalists argued that they should be protected from criminal and civil punishments for libel and "contempt by publication" because they were serving the public interest.
Many of the theories about the Press Clause link the need to protect the press from government interference and the similar need to protect the public interests served by a free press. Professors Nimmer, Blasi, Baker, and others, including Alexander Meiklejohn (32) and Thomas I. Emerson, (33) have emphasized that the First Amendment is closely tied to the ability of citizens to learn more about their government officials and government policies. According to these theorists, serving the important function of informing readers and viewers about public issues and public persons is the central mission of the news media.
Traces of the watchdog, or checking, theory and the self-government theory show up in some concurrences and dissents by Supreme Court Justices in Press Clause cases from the 1970s, a particularly active decade for media cases. As noted above, Justice William O. Douglas's opinion in Branzburg argued eloquently, but to no avail, that the press had been given special protection under the First Amendment to serve the public's right to know. (34) Similarly, in his dissent in Pell v. Procunier, (35) Justice Douglas argued that denying special prison access to the media was effectively a violation of the public's right to know. (36) Few people could be expected to visit prisons on their own to learn about conditions in penal institutions, Justice Douglas wrote. (37) Citizens were likely instead, "in a society which values a free press, to rely upon the media for information." (38) Similarly, in Saxbe v. Washington Post Co., (39) Justice Lewis Powell, although agreeing with the majority that journalists and their employers did not have any First Amendment rights transcending the rights enjoyed by the general public to enter federal prisons, stated that he could not agree that "any governmental restriction on access to information" would be constitutional so long as it was nondiscriminatory. (40) As Justice Douglas had emphasized in Pell, Justice Powell stressed that knowledge of information important to the public's political responsibilities often depended upon the news media. (41) Justice Powell wrote that it was "hopelessly unrealistic" to expect most people to have personal familiarity with newsworthy events. (42) The press, he insisted, acted as "an agent of the public at large." (43)
In a concurring opinion in Houchins v. KQED, Inc., (44) Justice Stewart determined that television station KQED was entitled to some relief after its employees were denied access to a county jail. (45) Specifically, Justice Stewart questioned the idea that "equal access" to a jail for the press and public had to mean "identical" access. (46) Justice Stewart concluded that equal access had to be defined flexibly to accommodate practical distinctions between the media and the general public. (47) A person touring the jail could see its conditions with her own eyes, he wrote, but a television reporter seeking to convey "the jail's sights and sounds" to viewers must use cameras and sound equipment. (48) Therefore, restrictions that might be reasonable when placed on other individuals might not be reasonable when applied to journalists. (49)
These isolated statements in concurrences and dissents do not reflect the majority's holdings regarding the Press Clause and the protection of newsgathering, but they may be as close as the Court has come to a clear and consistent philosophy. In Branzburg, the Supreme Court said that newsgathering had to have "some" First Amendment protection or else expression would wither. (50) But searching later cases for an example of protected newsgathering activities ends up being a zero-"some" game. The Court has held consistently that if the general public cannot do it, neither can the press. Likewise, if it cannot or is not done to the public, it cannot be done to the press. If the public does not have access to federal or state prisons, county jails, or the inmates within them, neither does the press. (51) If other people and their offices are subject to police searches conducted with properly obtained warrants, so are journalists and their offices. (52) If other people must testify in civil cases about their state of mind when it is relevant, journalists have no right to resist in libel cases. (53) If the Fourth Amendment rights of criminal suspects would be violated when individuals other than law enforcement agents are present during the execution of search warrants, that does not change merely because the individuals are journalists. (54) But because the public traditionally has attended criminal trials, to the betterment of justice and the community's understanding of justice, neither ordinary citizens nor the press can be barred arbitrarily from trials, jury selections, or pretrial hearings. (55) The press and public can be taxed, but press institutions cannot be singled out for discriminatory taxation, particularly if the taxation is aimed at affecting news reporting. (56)
Overall, then, the Supreme Court's extensive First Amendment case law has been clear on at least one issue: The press is not immune from generally applicable laws that affect its business operations and, by extension, its newsgathering operations. Although both the press and the public have a broadly protected right of expression, particularly in regard to matters of public concern, the press has no rights under the First Amendment that are not available to the public as a whole, except for "some" protection for newsgathering that remains undefined, other than in terms of what it does not include.
In one line of cases, however, the Court's protection of expression also encompasses protection for newsgathering. Starting with New York Times Co. v. United States, (57) the "Pentagon Papers" case, the Court has sided with the press when it has published truthful information acquired lawfully, even when the source of the information might have violated criminal or tort law. The case dealt directly with the right to publish news--expression, in other words--but also have implied a boundary for newsgathering rights. The press may publish what it learns so long as that information is truthful; even if the source that supplied the information might have broken the law, the press is not subject to punishment as a beneficiary of or contributor to the source's unlawful action. If the press itself engaged in no illegal activity in gathering the information, then it can be secure in publishing the information without fear of subsequent punishment.
The first of the cases to use this doctrine was arguably the most controversial. In the Pentagon Papers case, a federal employee with access to classified documents on the United States's involvement in the Vietnam War shared those documents with newspaper reporters. As the New York Times and the Washington Post prepared articles based on the contents of the documents, the executive branch of government obtained an injunction to halt the press from publishing any part of them. (58) With the possibility of a prior restraint hanging in the balance, the Court upheld the right of the press to publish information of great public concern obtained from documents stolen by a third party. (59) Yet this case raised, but did not resolve, the question that arises when a journalist or source acquires information unlawfully: whether the government may ever punish not only the unlawful acquisition but also the ensuing publication.
Later cases extended the circumstances under which journalists could without fear publish truthful information obtained lawfully from questionable sources. In Landmark Communications, Inc. v. Virginia, (60) a newspaper was indicted for violating state law because its reporting on a pending judicial inquiry identified a judge who was under investigation but against whom no formal complaint had been filed. (61) Ruling for the newspaper, the Court refused to allow criminal punishment of the press for publishing truthful information regarding the judicial review commission's confidential proceedings. (62) The operation of the commission was a matter of public interest, and the newspaper had served the constitutionally protected public interest in discussing government affairs by publishing the article. (63) Although the Court declined to adopt a categorical rule for all circumstances involving truthful information, it held that Landmark's publication of truthful information withheld from the public record was protected by the First Amendment. (64)
The next year, in Smith v. Daily Mail Publishing Co., (65) the freedom of the press to identify juveniles was extended to identification that was lawfully obtained, though not necessarily from the public record. Two newspapers independently monitoring the police radio frequency learned that a juvenile had been shot and killed by a classmate. (66) Reporters dispatched to the scene discovered the identity of the assailant through interviews with witnesses, and both papers eventually identified him in print despite a state statute prohibiting such disclosure without prior court approval. (67) The Supreme Court prohibited the state from punishing the newspapers for publishing the juvenile's correct name when the newspapers had obtained the boy's name lawfully, unless protecting the juvenile's anonymity would "further a state interest of the highest order." (68) The state's interest-furthering juvenile rehabilitation by protecting anonymity--did not meet that standard. (69) The Court concluded that a state statute punishing the publication of truthful information rarely was constitutional. (70) If the information at issue was obtained lawfully, through "routine reporting techniques," the state could not punish the publication of the information except where necessary to further a state interest more substantial than protecting the anonymity of a juvenile defendant. (71)
A decade later, the Court decided Florida Star v. B.J.F., (72) a case involving the surviving victim of a robbery and sexual assault who had sued a weekly newspaper for invasion of privacy for reporting her name, which the reporter had obtained from a police report released to the press. (73) The Court concluded that imposing damages on the newspaper for publishing B.J.F.'s full name violated the First Amendment. (74) Following its rationale in Daily Mail, the Supreme Court held that the state could not punish publication of lawfully obtained "'truthful information about a matter of public significance'" unless the statute was narrowly tailored to "'further a state interest of the highest order." (75) Based on the facts of the case, the Court ruled that B.J.F.'s name was obtained lawfully from a police report furnished to the newspaper and that the article involved "'a matter of public significance'" because it was about a report of the commission and investigation of a violent crime. (76) Weighing against disclosure was a finding that the state has a highly significant interest in protecting the privacy and safety of sexual assault victims and in encouraging them to report such crimes "without fear of exposure." (77) Despite these weighty state concerns, the Court found that imposing liability on the Star in this case was "too precipitous a means of advancing these interests." (78)
More recently, in Bartnicki v. Vopper, (79) an unknown person intercepted a private cellular telephone conversation between the chief union negotiator and the union president for Pennsylvania high school teachers during collective-bargaining negotiations. (80) Later, a radio commentator played a tape of the conversation on his public affairs talk show. (81) The commentator had obtained the tape from Jack Yocum, the head of a local taxpayers organization that had opposed the union demands during negotiations. (82) Yocum testified he found the tape in his mailbox shortly after the interception and recognized the voices on the tape....
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