NEWSGATHERER’S PRIVILEGE

COMM 407: CHAPTER 8

Citizens’ duty to cooperate

Judges, grand juries, lawyers, and legislative committees have the power to issue subpoenas in the legal system

They have the power to compel citizens to testify… (with a few exceptions)

Privilege = an exemption from a duty to testify. For example attorney-client, doctor-patient, etc.

What about journalists?

Journalists routinely get subpoenas Usually they file a motion to quash In state courts they can be granted the motion

under Shield Laws. In federal courts the matter is more complicated.

CONTEMPT OF COURT Criminal v Civil (Coercion)

The High Costs of Protection

Journalists who refuse to comply with subpoenas requesting notes and/or the names of confidential sources risk contempt and jail.

Vanessa Leggett: Spent more than five months in jail in 2001 for refusing to turn over notes from an interview regarding a murder investigation.

Josh Wolf (free-lance / blogger): spent 226 days (7.5 months) in jail in 2007

Why journalists insist on professional privilege against testifying?

Sources generally expect confidentiality Some sources won’t talk unless you promise them

confidentiality. The government should do its own investigation,

not rely on your information. Journalists are watchdogs on the government, not

lapdogs.

Branzburg v Hayes (1972). Three separate cases, collective name

Facts of the Case  Branzburg, a reporter, wrote a story about people

synthesizing and using drugs. On two occasions he was called to testify before

state grand juries which were investigating drug crimes. He refused to testify and potentially disclose the identities of his confidential sources.

Similar facts in companion cases

Branzburg v Hayes (1972). Three separate cases, collective name

Question  Is the requirement that news reporters appear and

testify before state or federal grand juries an abridgement of the freedoms of speech and press as guaranteed by the First Amendment?

Branzburg v Hayes (1972). Three separate cases, collective name

Conclusion  No. The Court found that requiring reporters to

disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment.

The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation;

Branzburg v Hayes (1972). Three separate cases, collective name

Reporters are not constitutionally excepted from the duty to comply with grand jury subpoenas

Journalists have a qualified constitutional right to withhold unpublished information and sources identity

1. What is the importance and relevance of information? 2. Can the information be obtained through different

means? 3. How the information was gathered? Confidential? 4. Is there a compelling and overriding interest in the

information?

Shield Laws

Statutes affording a privilege to journalists not to disclose in legal proceedings confidential information or sources of information obtained in their professional capacities.

Shield Laws: problems

One is determining to whom the privilege applies.

Unlike other privileged professionals, journalists are not licensed or certified in any manner.

Many state statutes attempt to define a journalist as one who communicates the "news.”

But how the term news should be defined?

Who is a journalist?

Traditional definition: a journalist is someone linked to a traditional media organization or who gathers news "for gain or livelihood."

New: journalism is an activity rather than a job. It is disseminating the news to the public

But…. such a broad definition would embrace almost everyone from a traditional reporter to a teenager live-tweeting from a rock concert.

Thomas Kent, Associated Press:

a set of basic ethical tests

Is the person's product intended for the general public?

Is the work creative and analytical rather than a simple relay of raw information?

Is the reporting based on facts rather than fabrications? Are statistics honest, images unmanipulated, quotations correct?

Thomas Kent, Associated Press:

a set of basic ethical tests

Does the product convey multiple points of view? (but "objective" journalism does not require that all views be given equal weight).

Does the person or his organization guard against conflicts of interest that could affect the product?

Does the person reveal his or her identity and contact information?

Does the person publicly correct errors?

Free Flow of Information Act of 2013 (proposed, not passed)

Provides journalistic privilege unless: (1) alternative sources have been exhausted; (2) the testimony or document sought is critical to the

investigation, prosecution, or defense… (3) disclosure of an information source's identity is

necessary to prevent an act of terrorism, harm to national security, imminent death, etc…

(4) the public interest in compelling disclosure of the information or document involved outweighs the public interest in gathering or disseminating news or information.

Free Flow of Information Act of 2013 (proposed, not passed)

Defines a journalist as a person who, for financial gain or livelihood, is engaged in journalism, including a supervisor, employer, parent, subsidiary, or affiliate of such a person.

Defines "journalism" as the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.

U.S. Court: Bloggers Are JournalistsThe Atlantic Monthly Jan 21, 2014

Obsidian Finance Group v. Crystal Cox (2014) The Ninth Circuit Court of Appeals

The case is not about who is a journalist. However, a part of the ruling was that even though someone might not write for the “institutional press,” they’re entitled to all the protections the Constitution grants journalists.

The California Shield Law

Provides legal protections to journalists seeking to maintain the confidentiality of an unnamed source or unpublished information obtained during newsgathering

WHO IT PROTECTS? a “publisher, editor, reporter, or other person

connected with or employed by the media”. The Shield Law also likely applies to stringers, freelancers, and perhaps authors.

WHAT INFORMATION IS PROTECTED?

The source of any information. Unpublished information

Specific information obtained during newsgathering but not disclosed to the public

Includes "all notes, outlines, photographs, tapes or other data of whatever sort"

Includes newsgatherer's eyewitness observations in a public place

Protects only information obtained during newsgathering

Failing to Keep A Promise: Civil Liability Promises: Some sources won’t talk unless you

promise them confidentiality. To renege on a promise is to risk a lawsuit filed by the source.

Cohen v. Cowles Media (1990): The First Amendment does not shield journalists from lawsuits or civil liability when they breach promises of confidentiality to their sources.

“Enforcing the promises of confidentiality would not violate the newspapers’ constitutional rights.”

Failing to Keep A Promise: Civil Liability

• The legal theory on which the plaintiff in Cohen v. Cowles Media prevails after journalists breached promises of confidentiality to him.

• The theory allows courts to enforce promises, even though there is no legally binding contract, in order to avoid injustice.

Legal obligation to keep promises: Four Key Elements

A plaintiff must prove four basic elements in order to prevail in an action for promissory estoppel:

1. The defendant made a clear and definite promise to the plaintiff;

2. The defendant intended to induce the plaintiff’s reliance on that promise;

3. The plaintiff reasonably relied on the promise to his or her detriment; and

4. The promise must be enforced in the interests of justice to the plaintiff.

Newsroom SearchesZurcher v. Stanford Daily 1977 Facts of the Case  In 1971, Palo Alto, California, Police Department obtained

a warrant to search the office of The Stanford Daily, the student newspaper. It was believed that the paper had pictures of a violent clash between a group of protesters and the police; the pictures were needed to identify the assailants.

Question  Did the search of The Daily's newsroom violate the First

and Fourth Amendments?

Newsroom SearchesZurcher v. Stanford Daily 1977

Conclusion  The Court held that the "third party" search of the

newsroom did not violate the Fourth Amendment. The Court held that such searches, accompanied by

warrants, were legitimate when it had been "satisfactorily demonstrated to the magistrate that evidence of crime is located on the premises."

The Court also found that the Framers of the Constitution "did not forbid warrants where the press was involved."

The First Amendment Protection of News Gathering

Limited Protection: There is no guarantee of access There is no special protection for media actions

/ work “The First Amendment does not provide a

license to violate valid criminal law”

Lawrence Matthews case (1998)

A U.S. District Court in Maryland refused to dismiss charges of transporting and receiving child pornography against a free-lance journalist.

Matthews argued that he was gathering news, not child pornography

The Court: “The First Amendment does not grant the press automatic relief from laws of general application.”

Civil v. Criminal lawsuits Civil lawsuits and legislative curbs on photojournalists

face very strict standards However, criminal acts by journalists are not protected While many of the crimes committed by photographers

may by only misdemeanors, the prosecutors are studying whether the teams of paparazzi could be prosecuted on felony conspiracy charges.

California Anti-Paparazzi Law

Any invasion of privacy with the intent to capture any type of visual image etc. of the plaintiff is liable

for up to 3 times the amount of damages and for punitive damages and, if proven to be committed for a commercial

purpose, subject to surrender to the plaintiff of any proceeds obtained as a result of that violation.

Liability for Newsgathering Methods

Journalists may be subject to criminal liability for their newsgathering techniques.

Some common legal areas (in addition to the invasion of privacy) include:

Trespass

Fraud / Misrepresentation

Trespass

An intentional, unauthorized entry onto land that is occupied or possessed by another.“There is no journalists’ privilege to trespass.”

Applies to private and government-owned property

Also: criminal trespass

Trespass Possible Defenses

Express Consent (specific authorization) But beware of exceeding scope of consent or

obtaining consent from someone who does not have the power to consent

Implied Consent (doctrine of custom and usage: The property, although privately owned, is generally open to the public and journalists do not otherwise interfere with the business use).

But never rely entirely on the notion of “implied consent”

Examples of trespass rulings

Government-owned property:

The Camp Garcia Naval Installation at Vieques, Puerto Rico (2000).Private: Reporter Bryon Wells’ case (2004)Desnick v. ABC (1995)

Desnick v. ABC (1995)

Two ABC employees posed as patients and requested eye examinations at Desnick's eye clinics. They used hidden cameras and recorded the eye examinations which were subsequently used for a news story about Desnick's eye clinics.

Despite the ABC employees' misrepresentation of themselves as patients, the court declined to hold ABC liable for trespass because the eye clinics were open to the public, and the ABC employees did not interfere with Desnick's ownership or possession of his property.

Fraud

FRAUD: A knowingly false statement that is communicated with the intent to induce the plaintiff to rely on that statement and that does, in fact, induce the plaintiff to reasonably rely upon it to the plaintiff’s harm or injury.

Food Lion Inc v. Capital Cities/ABC

ABC employees trespassed at Food Lion stores to obtain hidden-camera footage aired later on “Primetime Live” alleging food mishandling

The business was hurt by the report Sued ABC for trespass and fraud Awarded only a nominal damage $1 for trespass

Misrepresentation

Veilleux v. NBC

Failure to Obey Lawful Orders

Police and fire officials have the right to restrict media access to the scene of disasters, accidents, and fires

Reporters who do not obey these rules face charges of disorderly conduct, criminal trespassing, delaying and obstructing an officer

A STANDING PRESS PASS

Some jurisdictions issue standing press passes permitting access to a scene of disaster, crime, etc.

However:

1. Technically the pass is not necessary

2. Even with the pass the media might be held behind the lines

An example: L.A. Sheriff’s: Media Access at an Incident/Crime Scene

Incident/Crime Scene and Command Post Areas may be closed to the media.

Under most circumstances, the areas will initially be closed to the media.

Constraints to media access are subject to review by incident commanders and Department executives. They should be lifted whenever the situation warrants.

Whenever the media is denied access to an incident/crime scene LASD shall

Provide a "Media Area" with maximum access possible under the circumstances

Provide timely / updated information to the media Consider "Pool" access, (1 TV camera, 1 TV

reporter, 1 print, 1 photographer, 1 radio reporter) into the scene, who will share the information with their counterparts outside the scene

NOTE: All information to be released at the scene must be cleared by the incident commander, in cooperation with investigators

Tagging Along with Police

There is no special exception for trespass when accompanying emergency services (police, fire). Miller v NBC 1986 (the same case covered in privacy chapter). Camera crew followed all the way to the bedroom filming the resuscitation without obtaining consent from Miller’s family

Allowed if the police can claim temporary custody of a property. Florida Publishing Co. v. Fletcher 1976. A photographer who accompanied a fire marshal into a home destroyed by fire did not intrude because consent to enter was implied based upon common custom and practice for the news media.