Running head: NEWSGATHERING AND THE FIRST AMENDMENT

Tahira Natalie Carter Mass Media Law Cameron University

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Newsgathering and the First Amendment INTRODUCTION The United States First Amendment does not offer protection to the press for newsgathering. This topic has been one of great debate in various famous cases throughout American history. The general rule is that the Fist Amendment does not give the press any privileges beyond those offered to the general public. This means that the press does have the right to enter onto private property or to acquire classified information even if this information is of great public interest. While this rule is respected in most cases, there have been some where the law favored the press regardless of the fact that the information was acquired by illegal means. It is this apparent indecisiveness by our law enforcers that has triggered the interest of this paper. The United States Supreme Court has not made a clear decision about whether or not the First Amendment should provide protection for the press when newsgathering. At the same time, however, the Court acknowledged that gathering news is essential to publishing it, granting that "newsgathering is not without its First Amendment protections." (Branzberg v. Hayes, 1972) The courts have not since specified exactly where these protections would lie, however. The confusion is understandable because there are times when the information gathered by the press, although surreptitiously, is of such a nature that the law enforcement officers cannot deny its worth to the safety of the general public. There are other times however, when the press misuses their power and intrudes on the privacy of individuals for commercial gain.

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Unfortunately the latter has become commonplace and this has made the decision of newsgathering protection for the press even more difficult. One of the major problems with newsgathering is that there is no way for a reporter to know if the information that they are going to risk breaking the law for is worth the risk until they have actually committed the crime. This is unfortunate for the journalists that are actually carrying out investigations with the publics interest at heart because in the end they are only rewarded with a lawsuit. Another danger for the press is the fact that plaintiffs strategically seek to recover damages for injury from the publication of intrusively gathered information rather than for mere intrusion or a reputational tort. In this manner, the plaintiff has a better chance of winning damages from the press because they do not have to meet the heightened burden of proof required for torts based on publication. In such cases the First Amendment protections offered to the press are undermined and they end up getting the shorter end of the stick. [W]ithout freedom to acquire information the right to publish would be impermissibly compromised." (Justice Stewart, Branzberg v. Hayes) In this paper I will examine the precedents of Dietemann v. Time Inc. (1971), Desnick v. Capital Cities/ABC, Inc. (1994), Food Lion, Inc. v. Capital Cities/ABC (1999) and Sanders v. Capital Cities/ABC, Inc. (1997). These cases have been specifically chosen because of their similarity of circumstances and subsequent contradictory rulings based on the topic of newsgathering and the First Amendment. I will also use the arguments from scholarly articles to reinforce my case.

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RESEARCH QUESTION Should the press be awarded special privileges when newsgathering? Discussion In the case of Desnick v. Capital Cities/ABC, Inc. (1994), the plaintiff, Dr. Desnick of The Desnick Eye Center agreed to allow employees of the ABC television network to come into his medical office and film medical procedures. Dr. Desnick had no knowledge that the television network had also sent persons to other branches of his eye clinic to pose as patients and record footage with a hidden camera. After their examinations, all the fake patients of age to receive Medicare were told that they needed to have cataract surgery, while the two younger patients who were not eligible for Medicare were told that their eyes were healthy. This footage was broadcasted on an ABC special of Prime Time Live where a certified eye specialist performed additional examinations on these same patients and found that there was nothing wrong with their eyes, thereby proving that the physicians at The Desnick Eye Center were deceiving patients into believing that they had cataracts when they in fact did not. Dr. Desnick sued claiming trespass, invasion of privacy, wiretapping, fraud, breach of contract, and defamation. The court dismissed all of the claims except for breach of contract and ruled that the professional corporation and the physicians would be entitled to nominal damages for breach of contract even if no monetary damages were proved. In the case of Sanders v. Capital Cities/ABC, Inc.(1997), a reporter of Capital Cities answered an employment advertisement in the newspaper for tele-psychics in an effort to gain information for a Prime Time Live special on the tele-psychic industry. Although he had no

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experience in the field, the reporter was hired and he proceeded to conduct interviews with his co-workers, which he secretly videotaped and recorded. A clip from one of these interviews depicting Mark Sanders was later broadcasted on television. Sanders sued the reporter and ABC for invasion of privacy. The court initially entered a $ 1.2 million judgment for Sanders but later reversed this judgment claiming that the plaintiff could not have had a reasonable expectation of privacy in his workplace conversations because coworkers could have overheard them. While the rulings of these two cases favored the press and the reporters were fortunate to escape with minor repercussions, this is not the situation with many others. In Dietemann v. Time Inc. (1971), the Court of Appeals for the Ninth Circuit held that privacy is a basic right. Dietemann was featured in a Life Magazine story in which he was depicted to be a crazy medical doctor. Two reporters from Life Magazine entered into an agreement with the Los Angeles District Attorneys office whereby they would enter the plaintiffs home as potential clients and secretly record the happenings. These recordings were done without Dietemanns consent and they were later published in a Life Magazine article. Dietemann sued, claiming invasion of privacy. The Circuit judge, James M. Carter, ruled in favor of the plaintiff. The fact that the recordings were taken in Dietemanns private dwelling and the additional fact that he had no advertisements soliciting clients supported his case of invasion of privacy. Dietemann was awarded $ 1000 in damages. In Food Lion Inc. v. Capital Cities/ABC, Inc. (1999), two journalists, after using false resumes to get jobs at separate Food Lion supermarkets, secretly videotaped what appeared to be grossly unsanitary food handling practices. Parts of this video footage were later broadcasted to the public on live television. Food Lion sued Capital Cities for the way in which they went about

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gathering the information, claiming fraud, breach of duty of loyalty, trespass, and unfair trade practices. In a final ruling the court found that the charges of fraud against the reporters were insufficient and ordered that damages of $2 be paid. The fate was not the same for ABC, Inc. and its two producers Kaplan and Rosen, however. The court ruled against them on fraud claims and awarded Food Lion $5,545,750 in punitive damages. The district courts post-trial proceedings ruled that the punitive damages award was excessive, and lowered the total to $315,000. The differences between the verdicts of the four cases mentioned above demonstrate the apparent problem with the way in which the judicial system handles newsgathering cases. The facts of each case are essentially the same; yet, because tort law varies from state to state these four cases yielded different results. Dreispul (1998) sheds light on the contradiction between tort liability and the freedom of the press in his article Circumventing Sullivan: An Argument Against Awarding Punitive Damages for Newsgathering Torts. The rapidly increasing number of newsgathering tort claims has inspired debates over whether or not the First Amendment should protect the press from tort liability. The term, "newsgathering torts" generally refers to tort claims in which the plaintiffs sue the press for damages incurred as a result of the newsgathering process. The downside of newsgathering torts is that they serve as a way for targets of investigative reports to earn awards for damages in court without having to provide the necessary specifics implicated with libel charges, by claiming invasion of privacy, trespass and interference with contractual relationships. Another problem with tort liability is that the laws of the several states govern it; therefore it differs widely among jurisdictions. The author attempts to compare various cases of

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similar standing, but admits that the varying elements of each individual tort claim make comparison of these cases difficult. Dreispul draws reference to Gertz v. Robert Welch, Inc. (1974) to better explain the special problems that punitive damages present when applied to the press. In Gertz v. Robert Welch, Inc., the United States Supreme Court held that awarding punitive damages for libel when the plaintiff is not required to prove actual malice may impose an unjustifiable burden on the press. This is the situation that occurs, however, when plaintiffs are allowed to claim damages from the press for newsgathering torts. The author does not ignore the fact that the state has a duty to deter and punish tortious conduct but stresses that this duty must be balanced against the First Amendment. Much like Dreispul (1998), Jones (2000) argues that allowing intrusion plaintiffs to recover damages for injuries related with publication, without having to comply with the heightened burden of proof required for torts based on publication, undermines constitutional protection for the press. The United States Supreme Court has not clearly stated whether or not the First Amendment provides any protection for newsgathering. The author examines various precedent cases on this topic and demonstrates how they all relay inconsistencies in judgment. The Court has held that where generally applicable laws restrict newsgathering, the First Amendment does not license it. Contradictorily however, the court also acknowledges that gathering news is essential to publishing it, thereby granting that "newsgathering is not without its First Amendment protections."

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Jones draws a great deal of reference to the Brazburg v. Hayes (1972) case because it was the closest that a court came to granting the press a privilege that other citizens do not enjoy. By one vote the court decided against granting the privilege and although they alluded to the necessity of some level of protection for the press when newsgathering they did not specify when such protection might be applied and to what extent. She uses the Food Lion v. Capital Cities/ABC, Inc. (1999) case as an example of the urgent need to regulate the current situation regarding newsgathering and the press. Food Lion admitted to the court that it did not sue ABC, Inc. for defamation because it would be more difficult to prove that the news company acted with actual malice. "What Food Lion sought to do, then, was to recover defamation-type damages under non-reputational tort claims, without satisfying the stricter (First Amendment) standards of a defamation claim. In sum, the author suggests that the courts can solve the loophole that targets of investigative journalism have found to claim damages from the press through newsgathering torts by requiring them to show that journalists, in the pursuit of newsworthy information, acted with actual malice - knowledge or reckless disregard. Surreptitious methods of newsgathering have been practiced for over a century in the United States and there are many precedent cases on the subject, never the less an in-depth revision of these cases only reveals more ambiguity on the part of the courts to decide a stance on the matter. Logan (1997) looks at the history of undercover news in his article Masked Media: Judges, Juries, and the Law of Surreptitious Newsgathering. The hidden cameras of journalists have exposed some of the most scandalous crimes of today, such as slave labor, child abuse,

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unsanitary food handling and medical malpractice. But although undercover reports, obtained through the use of false identification and scheming, have been used by the media for decades, these tactics of newsgathering have raised many questions about journalistic ethics. The victims of these forms of surreptitious newsgathering have found a way to fight back by assaulting the method and not the message. Subjects of unflattering stories now increasingly turn to what cheerleaders for the media derisively term "trash torts," primary among them fraud and trespass. There are those that argue that the press should be given immunity from these newsgathering torts unless the plaintiff can prove that the publication was carried out with actual malice. Logan rejects both extremes and opts in favor a middle ground. He argues that if a reporter violates "generally applicable" state tort law such as fraud and trespass he/she should be subject to liability and an award of compensatory or punitive damages. The damages available, however, should be curtailed so that reporters do not become completely unmotivated to engage in investigative reporting. Finally the author weighs the role of the community and its judges and juries in determining whether a story is of such importance that it justifies the use of unconventional methods of newsgathering. He stresses that since the primary purpose of tort law is to keep a fair balance between the intrusion from the press and the right to privacy from the plaintiffs, a common law rather than a First Amendment approach should be adopted whereby judges would use familiar common-law principles to resolve disputes.

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The Cumberland Law Review tackles the issue of newsgathering as an investigatory power for the public interest and as an invasion into privacy rights. According to Brandy Burnette, the use of deception has always been a tool of effective journalists because without it some matters of great public interest that have been kept secret or hidden would never have been brought to light. To prove her point, the writer mentions the accomplishments of journalists such as Upton Sinclair whose undercover investigation as a meatpacker in a Chicago slaughterhouse revealed terribly unsanitary conditions. His subsequent publication of these findings eventually led to passing of the Pure Food and Drug Act of 1906. Sinclair would not have been able to gain this crucial information that proved to be of great public concern, without hiding his identity and pretending to be someone he was not. The media play a very important role in society, their function of gathering news has increasingly moved beyond researching and compiling to investigations. These actions are often performed in the public's interest, and therefore, in an effort to secure the medias function, the First Amendment of the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press." The First Amendment has achieved protection for the press in the event of published falsehoods, defamation of certain individuals without actual intent or malice, and the revelation of intimately personal facts (once those facts are of great public interest and importance). The First Amendment does not protect the press when they gather information by methods other than the standard research techniques however, even if that information is of the utmost societal importance. Conclusion

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In conclusion, the research has shown that the current state of indecisiveness on the part of the courts to determine whether or not the press should be awarded special privileges when newsgathering is because of a conflict of laws protecting the press and protecting the people. The discrepancies among the four cases examined in this paper could be resolved if the courts were equip with a more conclusive understanding of the importance of newsgathering under the First Amendment. Vague statements that hint to the promise of protection for the press when newsgathering, such as those mentioned in Branzburg v. Haynes (1972) are not enough. The courts need to firmly establish the limitations for newsgathering liability. But where should these limitations lie? In response to my research question, should the press be awarded special privileges when newsgathering? I would have to agree with Logan (1997) and opt for a compromise of sorts between the two extremes. Journalists should not be given additional rights to overstep state tort laws such as fraud and trespass but the damages that they suffer as a result of breaking these laws should be such that it would serve as a deterrent to journalists seeking hollow scandalous fame but not completely curb the endeavors of investigative journalists in general. This last section is very important because newsgathering liability has already been showing some disheartening effects on the freedom of the press. In November 1995, CBS canceled an interview with a former employee of a tobacco company, Brown & Williamson, because it feared liability. CBS was not concerned with any potential libel action; apparently, the network feared liability under an interference with contract tort theory. In cases like this the First Amendment and the protections of the Sullivan test are of little help to the press.

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Therefore the courts and the press are placed in an ethical bind. As it stands today, the law does not protect the use of surreptitious methods of newsgathering, but past experiences show that the truth is not often reveled using standard techniques. So should the press suffer the claims of punitive damages or disregard the story even though it could mean dire consequences for the general public? The only persons hurt in this instance would be the American people.

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Works Cited Branzburg v. Hayes 408 U.S. 665 (1972) Brunette, B. (2000). Newsgathering as an Investigatory Power for the Public Interest and as an Invasion into Privacy Rights. Cumberland Law Review, 31, 769. Retrieved 27 October 2010, from http://www.lexisnexis.com.ezproxy.cameron.edu/hottopics/lnacademic/? Dietemann v Time Inc., 499 F. 2d 245 (9th Cir. 1971) Desnick v. American Broadcasting Companies, Inc., 851 F. Supp. 303 (1994) Dreispul, T. (1998). Circumventing Sullivan: An Argument Against Awarding Punitive Damages for Newsgathering Torts. Dickinson Law Review,103, 59. Retrieved 2 December, from http://www.lexisnexis.com.ezproxy.cameron.edu/hottopics/lnacademic/? Food Lion Inc. v. Capital Cities/ABC, Inc., 194 F. 3d 505 (1999) Jones, M. (2000) First Amendment Protection for Newsgathering: Applying the Actual Malice Standard to Recovery of Damages for Intrusion. Hastings Constitutional Law Quarterly, 27, 539. Retrieved 12 November 2010, from http://www.lexisnexis.com.ezproxy.cameron.edu/hottopics/lnacademic/? Logan, D. A. (1997). Masked Media: Judges, Juries, and the Law of Surreptitious Newsgathering. Iowa Law Review, 83, 161. Retrieved 30 November, from http://www.lexisnexis.com.ezproxy.cameron.edu/hottopics/lnacademic/?

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Sanders v. Capital Cities/ABC, Inc., 978 P. 2d 67 (1999)