Edited basic newsgathering and publication speech (00006477)[1]

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Edited basic newsgathering and publication speech (00006477)[1]

  1. 1. Introduction Kevin M. Goldberg, Esq. Fletcher, Heald & Hildreth, P.L.C. Phone: 703-812-0462 E-mail: Goldberg@fhhlaw.com Website: http://www.fhhlaw.com Blog: http://www.commlawblog.com
  2. 2. Newsgathering – Newsgathering  Freedom of Information Act  Confidential Sources  Taping of Conversations – Publication  Invasion of Privacy  Defamation
  3. 3. Freedom of Information Act (“FOIA”) Signed into law on July 4, 1966 by President Lyndon B. Johnson All records of the agencies of federal government must be accessible to the public unless specifically exempt from this requirement “Disclosure, not secrecy, is the dominant objective of the Act” – Department of Air Force v. Rose (1976)
  4. 4. Agencies must make records availableupon request – These records must be made available in the form or format in which they are requested – Each agency must make reasonable efforts to maintain records in forms or formats in which they are likely to be requested
  5. 5. Fees Agency can charge a reasonable fee for search time or copying expenses if sought for commercial use Costs are limited to document duplication if:  The records are sought for noncommercial use And  The request is made by an organization that is : – educational – noncommercial – scientific – news media
  6. 6. Exemptions a. National Security a. Information that would Information compromise personal privacy b. Internal Agency Rules c. Law Enforcement Records c. Information Exempted by h. Records of Financial Other Statutes Institutions d. Business or Trade i. Oil Well Data Secrets e. Inter-agency and intra- agency memos or letters
  7. 7. Time For Response 1. Agency has 20 days after a request is made to determine whether it will comply with the request 2. It can extend this period in unusual circumstances 3. In practice, almost no agency ever meets this deadline
  8. 8. Protection of SourcesBranzburg v. Hayes  Majority (4 votes): – Requiring journalists to appear and testify before state or federal grand juries does not violate the First Amendment – There is no constitutional journalists confidentiality privilege  Powell Concurrence (1 vote): – Advocated a case by case basis to determine whether there was a legitimate need for the source or information or whether there is only a remote or tenuous connection with the investigation  Stewart Dissent (4 votes): – Recognizes the importance of sources in reporting and the role of confidentiality. – Fashions a 3 part test which has often been followed later by states and lower federal courts:
  9. 9. 3 Part Qualified Privilege Requires The government must show that there is probable cause that the newsman has information that is clearly relevant to a specific violation of law The government must demonstrate that the information sought is unique cannot be obtained by other means The government must demonstrate a compelling and overriding interest in the information that makes it central to the case
  10. 10. Shield Laws 39 states have shield laws – 12 are absolute – The rest are qualified along the lines of the Stewart dissent 17 more have judicial decisions formalizing the privilege
  11. 11. Search Warrants Against Journalists Should Newsrooms be Subject to Search and Seizure Laws? In 1978, the Supreme Court ruled that journalists are subject to search warrants, just like any other citizen (Zurcher v. Stanford Daily) But….in 1979, Congress passed the Privacy Protection Act which says
  12. 12. The Government must show one of the followingin order to obtain notes or other work materialsfrom a newsroom i. There is probable cause to believe the reporter committed a crime ii. Seizure of materials is necessary to prevent injury or death; or iii. The materials contain national security or classified information
  13. 13. Searches for “documentary materials”(video, audio, photo, etc.) government mustshow one of the following: There is probable cause to believe that the reporter committed a crime Seizure of materials is necessary to prevent injury or death The materials contain national security or classified info The journalist ignored a subpoena There is a likelihood that the journalist would destroy the info if subpoenaed
  14. 14. Taping Phone Calls – It can be very helpful both as a way to get things accurate and to document both your intent and your accuracy later – It may also be illegal  It is always illegal to intercept or record a phone conversation between other people  It may be illegal even if you are a party to the conversation – Some states require 2 party consent (Maryland) – Others only require one (District of Columbia)Penalty can be a felony of up to 5 years in prison and $10,000 fine!!!
  15. 15. Intrusion/Trespass This is conduct such as:  Breaking and entering  Surreptitious surveillance  Unauthorized physical presence  Unauthorized photography Does NOT require that anything be publishedGeneral Rule: Journalists are still subject to the same laws as anyone else
  16. 16. Hidden Cameras: Don’t use cameras toobtain what you cannot see in publicwith your own eyes!!! – Shulman v. Group W (California)  Woman injured in car accident is entitled to jury trial to determine whether media improperly intruded into her seclusion by taping her conversations with nurse at accident scene – Food Lion v. ABC (North Carolina)  Two reporters use false resumes to get jobs at supermarket, secretly videotaping unwholesome food handling practices.  Lawsuit for fraud, breach of duty of loyalty, trespass, and unfair trade practices  Food Lion won compensatory damages of $1,402 plus punitive damages.
  17. 17. Publication Invasion of Privacy (4 kinds) – Intrusion – Misappropriation – Private Facts – False Light
  18. 18. Misappropriation – Also known as the right of publicity – Involves using the name or likeness of another for one’s own benefit – The plaintiff cannot sue if his or her likeness is used with regard to newsworthy conduct
  19. 19. Public Disclosure of Private Facts Widespread publication About the plaintiff Of private information – Not in a public record – Not in a public place – Not already known – Not (generally) about a public figure That would be highly offensive to a reasonable person, and Not newsworthy
  20. 20. False Light Involves placing a person in a false light in a manner that would be highly sensitive to a reasonable person or a person of ordinary sensibilities Often arise out of the use of a person’s likeness out of context It is similar to libel but intended to compensate for falsehoods that injure feelings rather than reputation
  21. 21. False Light Elements The widespread dissemination Of highly offensive False material About the plaintiff With knowledge of falsity or reckless disregard of the truth
  22. 22. Public Disclosure of Private Facts 1. This cause of action deals with unreasonable disclosure of embarrassing facts, which are defined as revelations that are so intimate and so unwarranted in view of the victim’s position as to outrage community’s notions of decency 2. The statement must be highly offensive to a reasonable person 3. The statement must not be of legitimate public concern
  23. 23. Libel
  24. 24. What we don’t do NO PRIOR RESTRAINT – a. Prior restraints are situations where punishment comes before publication rather than a fine or sentence afterward – b. If a criminal statute (or a civil fine) chills speech, then a prior restraint freezes speech – c. Often the government or some other entity will try to enjoin publication of articles based upon various means
  25. 25. Civil Libel8 Elements to be Proven by the Plaintiff as a Result of NewYork Times v. Sullivan Defamatory False Assertion of Fact About the Plaintiff Published With Fault Causing Damage Without a Privilege for the Defendant
  26. 26. Defamatory Something that reflects poorly on reputation, morality, integrity, etc. – libel per se: when statement is defamatory on its face  Accusing someone of a crime or illegal activity  Suggesting that a person is incompetent for his/her occupation  Impugning the chastity of a woman  Stating that a person has a “loathsome” disease – libel per quod: when statement is defamatory in context and must be proven through court testimony
  27. 27. False The First Amendment requires we protect some falsehood in order to protect speech that matters – United States Supreme Court in Gertz v. Robert Welch Requires only substantial truth – A statement is not “false” for the purposes of libel, as long as it is “substantially true.” – Thus, if a man kills 4 people, but it is falsely reported as 5 people, the court will probably find the statement to be “substantially true,” and thus not a basis for libel
  28. 28. Assertion of Fact Statements of Fact vs. Statements of Opinion – A general determination of whether something could reasonably be construed as a statement of fact – Is it capable of being answered “Yes” or “No”? Look at: – Common usage or meaning of the specific language – Verifiability of the alleged libel – Full context of statement – Broader context of statement (what sort of publication) NOTE!: A false factual assertion will not be protected merely by prefacing the statement with “in my opinion.” (e.g. “In my opinion, he is the murderer.”)
  29. 29. About the Plaintiff The statement must refer to a specific, identifiable person – Does not mean that you must identify by name – Requires only that the plaintiff be readily identifiable to the average reader through the statement Group Libel – It is impossible to libel a specific person if the group to which the statement refers to is too large – Generally, the must be under 25 persons
  30. 30. Published Requires no more than making a statement to a 3rd person Republication of a libel is a libel
  31. 31. With Fault Public Official or Public Figure = Actual Malice Private Figure = Negligence
  32. 32. With Fault – Public Official Public Official: – Anyone with substantial policy making responsibility
  33. 33. With Fault – Public Official Examples Professor at State Universities Public school principal Member of School Board Law enforcement officer Probation officer
  34. 34. With Fault – Not Public Official Deputy public defender Private lawyer doing state paid defense for indigent Police informant Part time employees Staff employees
  35. 35. With Fault -- Public Figures All Purpose Public Figures: – They are so well known by all that they are immediately recognized by most of the population – Examples:
  36. 36. With Fault – Public Figure
  37. 37. With Fault – Public Figure
  38. 38. With Fault – Not a Public Figure
  39. 39. With Fault – Limited Purpose PublicFigureThose persons who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of issues involved
  40. 40. With Fault – Why is there a difference? These people have assumed special roles in society and special prominence in resolution of public questions These people have greater access to the media to defend themselves In many cases, they have voluntarily exposed themselves to risk of injury from defamatory falsehood
  41. 41. With Fault – Actual Malice Again, this is based on the idea that erroneous statements are inevitable in free debate and that it must be protected if free expression is to have the breathing space needed to survive (like falsity) Applies to Public Officials and Public Figures
  42. 42. With Fault – Actual Malice, Continued A statement is made with actual malice if the writer or speaker has knowledge that it was false or made it with reckless disregard to its truth or falsity This must be proven by clear and convincing evidence
  43. 43. With Fault – Actual Malice, ContinuedExamples of Actual Malice: The statement was made based wholly on an anonymous unverified phone call The statement contains allegations so inherently improbable that only a reckless person would put them in circulation The statement was published despite obvious reasons to doubt the veracity of the informant upon whom the article is based or the accuracy of his or her reports
  44. 44. With Fault – Actual Malice, Continued Court Cases: – Harte Hanks v. Connaughton (purposeful failure to interview a person with opposing viewpoint) – Schiavone Construction Co. v. Time, Inc. (magazine distorted contents of a FBI memo and falsely implied an unsupported connection to organized crime) – Sharon v. Time Inc. (relied on a “secret” document that magazine did not have a copy of and had reason to doubt its existence) – Goldwater v. Ginzburg, 414 F. 2d 324 (2d Cir. 1969) (actual malice where magazine made psychological claims about 1964 presidential candidate Barry Goldwater, despite the fact that Goldwater’s doctor denied the claims and no experts supported it; magazine also distorted expert comments to give false impression.)
  45. 45. Damages3 Kinds:  Compensatory  Special  Punitive
  46. 46. Damages -- ContinuedCompensatory a) Compensation for actual money loss or provable monetary injury b) usually must be shown before any other damages can be collected
  47. 47. Damages -- ContinuedSpecial Sometimes known as “general” damages Monetary compensation paid by publishers for injury to reputation, injured feelings, shame, hurt, humiliation, mental anguish
  48. 48. Damages -- ContinuedPunitive Meant to punish Often well out of proportion to the amount that is awarded for compensation
  49. 49. DefensesFair Report Protects against liability for publications of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern if the report is accurate and complete or a fair abridgement of the occurrence reported
  50. 50. Defenses -- ContinuedNeutral Reportage When a prominent person or organization makes serious charges against a public figure What is important is that the charges were made, not what they contain
  51. 51. Final Thoughts Remember, the laws in virtually every area we have covered today vary from State to State – these are a general overview Please feel free to contact me if you need more information Your editor should know the law very well Thank you, good luck, and have fun!!!

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