Seventh Edition The FirstAmendment Handbook  ✰✰✰✰✰✰✰
The FirstAmendment Handbook      Seventh EditionThe Reporters Committee for   Freedom of the Press      Lucy A. Dalglish  ...
Funding for this publication provided by:                  Gannett Foundation                         and                 ...
Contents	Introduction	                      1	   1.	Libel	                       3	   2.	 Invasion of Privacy	       11	  ...
Congress shall make no law respecting anestablishment of religion, or prohibitingthe free exercise thereof; or abridging t...
Introduction     On a Sunday afternoon in March 1970, a groupof journalists and media lawyers, concerned over FBIattempts ...
let, and in an online version available at www.rcfp.org/handbook.     A handbook like this can never be a substitute forad...
Chapter 1Libel                                                                1  •  LIBEL     Libel occurs when a false an...
The media can be liable for the republication of alibelous statement made by another person or entity butquoted in a news ...
Harm      The heart of a libel suit is the claim that the plaintiff’sreputation was injured. In some states, harm does not...
In determining whether actual malice exists, a courtmay examine a reporter’s newsgathering techniques.Although carelessnes...
or officials by a responsible, reliable organization orperson, as long as the statements are reported accuratelyand impart...
formerly broad reach of opinion protection in Milkovichv. Lorain Journal Co.13 The Court ruled that there is noseparate op...
was sufficient evidence for a jury to find that the magazinerigged the results of automobile tests to give the SuzukiSamur...
Advice for avoiding libel suits     Check sources thoroughly. Get independent cor-roboration whenever possible. A source c...
Chapter 2Invasion of privacy     Almost every state recognizes some right of privacy,                                     ...
his private area or affairs.     Intrusion claims against the media often center onsome aspect of the newsgathering proces...
to accurately report them. Even a couple’s intimate mo-ment in public, captured in a photograph, is not action-able as lon...
Some states restrict the release of certain informa-tion, even though it is part of an official record, by sealingthe file...
the man’s courageous act cast often-stereotyped homo-sexuals in a positive light. There was also a newsworthyquestion abou...
Right of publicity     Some states recognize a right of publicity, whichprotects a celebrity’s commercial interest in the ...
subject has consented not only to the interview, but tothe publishing or airing of the interview or photographsas well. Wh...
John Peter Zenger was charged with libel for      publishing this story in the December 17, 1733,      edition of the New ...
Chapter 3Surreptitious recording     Some reporters regard recorders and cameras asintrusive devices that all but ensure t...
dition to recording and eavesdropping, and prescribingadditional penalties for divulging or using unlawfullyacquired infor...
that will later be broadcast to inform the other party thatthe recording is intended for broadcast.State hidden camera sta...
A copy of the Declaration of Independence      printed July 4, 1776. Courtesy of the Scheide      Library, Princeton Unive...
Chapter 4Confidential sourcesand information     The use of subpoenas to force journalists to disclosetheir confidential n...
their state’s privilege to withhold confidential sources andinformation, as recognized by a shield law, state constitu-tio...
the District of Columbia (D.C. Cir.) said a grand jury’sneed for information outweighed any reporter’s privilegeafter New ...
material may threaten editorial autonomy, and the courtsmay apply the reporter’s privilege if the records are beingsubpoen...
of a traditional media organization may be less likely toqualify for the privilege.A reporter’s obligation to a source    ...
In the legal context, websites or Internet providerscan sometimes be the default gatekeepers between po-tential libel plai...
of the subpoena that requested information about onlytwo of the anonymous commenters on one of its onlinearticles. The ACL...
to appear at the time and place specified, you could beheld in contempt of court, and fined or imprisoned, orboth.     If ...
testifying. These are designed to keep witnesses fromhearing and being influenced by the testimony of thoseother witnesses...
demonstrators who had injured policemen.17     In direct reaction to this ruling, Congress passedthe Privacy Protection Ac...
the warrant.20 If the search proceeds, staff photographersor camera operators should record the scene. Althoughstaff membe...
This aspect of the PATRIOT Act appears to applyto newsrooms, which potentially could be subject to asearch, despite the pr...
Chapter 5Prior Restraints     A prior restraint is an official government restrictionof speech prior to publication. Prior...
restraint ‘freezes’ it at least for the time,” Chief JusticeWarren Burger wrote for the Court.      To determine whether t...
in a second defendant’s criminal trial. The trial court hadjustified its order on grounds that the publicity was likelyto ...
Law enforcement investigations     Law enforcement officials often tell reporters not topublish certain information about ...
Information in the public sphere     To the extent information is revealed in open court,it cannot be censored. For exampl...
gram “48 Hours” from airing the tape of a meatpackingplant it obtained from an employee who wore a hiddencamera during his...
Journal from publishing information about the juicecompany POM Wonderful that was supposed to besealed, but that a reporte...
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
The First Amendment Handbook
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The First Amendment Handbook

  1. 1. Seventh Edition The FirstAmendment Handbook ✰✰✰✰✰✰✰
  2. 2. The FirstAmendment Handbook Seventh EditionThe Reporters Committee for Freedom of the Press Lucy A. Dalglish EXECUTIVE DIRECTOR Gregg P. Leslie EDITOR
  3. 3. Funding for this publication provided by: Gannett Foundation and The Scheide Fund The First Amendment Handbook is also available on our website, at rcfp.org/handbook Journalists with questions about First Amendment and Freedom of Information Act issues can contact the Reporters Committee on our hotline, (800) 336-4243, or by email at hotline@rcfp.org. Additional copies of The First Amendment Handbook may be purchased from: The Reporters Committee for Freedom of the Press 1101 Wilson Blvd. Suite 1100 Arlington, VA 22209 (703) 807-2100© 2011, 2003, 1999, 1995, 1992, 1989, 1986 by The Report-ers Committee for Freedom of the Press. All rights reserved.No part of this booklet may be reproduced in any formor by any means without the prior, written permission ofthe publisher. Please see our website (rcfp.org/copyright)for more information on permission to reproduce foreducational and nonprofit purposes.
  4. 4. Contents Introduction 1 1. Libel 3 2. Invasion of Privacy 11 3. Surreptitious Recording 19 4. Confidential Sources and Information 23 5. Prior Restraints 35 6. Gag Orders 47 7. Access to Courts 51 8. Access to Places 59 9. Freedom of Information Acts 69 10. Copyright 77 Endnotes 87
  5. 5. Congress shall make no law respecting anestablishment of religion, or prohibitingthe free exercise thereof; or abridging thefreedom of speech, or of the press; or theright of the people peaceably to assemble,and to petition the Government for a redressof grievances. — The First Amendment
  6. 6. Introduction On a Sunday afternoon in March 1970, a groupof journalists and media lawyers, concerned over FBIattempts to find the sources for journalists’ reports onradical groups, gathered at Georgetown University tocreate an organization that would be available around theclock to provide legal assistance to any working reporter,anywhere in the United States, without charge. Since that founding meeting, the Reporters Com-mittee for Freedom of the Press has been just what itsname implies — an organization dedicated first to theinterests of the reporter. From the start, the medium ofcommunication and the means of employment have notmattered. The committee has helped all those who take itas their mission to inform the public about current events. For 40 years, The Reporters Committee has car-ried out that vision, giving legal advice to thousands ofjournalists and producing publications to help them dotheir jobs. The First Amendment Handbook is one of thosepublications. First produced in 1986, and updated regu-larly since then, this booklet is designed to provide a basicprimer on the laws affecting reporters’ rights to gatherand disseminate news. At a time when newsgathering techniques are underincreasing scrutiny, courts order journalists to jail forrefusing to disclose confidential sources, governmentofficials are finding new ways to close down access topublic information in the name of national security, andbig business tries to intimidate news organizations byfiling lawsuits based on novel tort theories ranging fromfraud to breach of duty of loyalty, American journalistsneed to be aware of the many potential pitfalls that awaitthem, and of how they might avoid them. They needto know their rights, and how to fight back when theyare threatened. The First Amendment Handbook is animportant weapon in that fight. In addition to helping reporters at home, The FirstAmendment Handbook has traveled the world, commu-nicating the principles of a free press to journalists andlawmakers in developing democracies around the worldin a succinct, easy-to-understand manner. The latest edition of The First Amendment Hand-book is available both in the familiar pocket-sized book-THE FIRST AMENDMENT HANDBOOK 1
  7. 7. let, and in an online version available at www.rcfp.org/handbook. A handbook like this can never be a substitute foradvice from a news organization’s attorney. But we knowthat many journalists simply do not have access to an at-torney when they have a pressing legal question. Thus, aprimer like this will help educate the reader on the basicsof the law and the right to gather and report the news. Webelieve that this Seventh Edition of The First Amend-ment Handbook will, like its predecessors, find a usefulplace in the pockets and desk drawers of members of theworking press, as well as on their computer desktops. As useful as we believe this handbook will be to re-porters, we encourage journalists who gather and reportnews in any medium to call the Reporters Committee forassistance when they need to find an attorney. We can bereached at 800-336-4243 or hotline@rcfp.org. The Reporters Committee would like to acknowl-edge the extensive efforts of our legal fellows and internswho have made significant contributions to each editionof this booklet. Our sincere thanks go to each of them. The United States Constitution, printed Sep- tember 1787. Courtesy of the Scheide Library, Princeton University.2 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  8. 8. Chapter 1Libel 1  •  LIBEL Libel occurs when a false and defamatory statementabout an identifiable person is published to a third party,causing injury to the subject’s reputation. A libelous statement can be the basis of a civil lawsuitbrought by the person or group allegedly defamed or, inrare cases, a criminal prosecution. There is no uniform law for libel. Each state decideswhat the plaintiff in a civil libel suit must prove and whatdefenses are available to the media. However, consti-tutional law requires plaintiffs or prosecutors to provefault before a news organization can be held liable fordefamatory communications.1 When a news organizationis sued, the court must weigh protection of a person’sreputation against the First Amendment values of free-dom of speech and expression. Generally, this requires anexamination of six different legal elements — defamatorycommunication, publication, falsity, identification, harmand fault — as well as a number of defenses available tomedia defendants.Defamatory communication A defamatory communication is one that exposes aperson to hatred, ridicule, or contempt, lowers him inthe esteem of his fellows, causes him to be shunned, orinjures him in his business or calling. Defamation can takethe form of libel (published or broadcast communication,including information published on a website) or slander(oral communication). Courts generally are required to take the full contextof a publication into account when determining whetherthe publication is defamatory. However, a headline,drawing, cutline or photograph taken alone can, in somecases, be libelous.2Publication For purposes of a libel lawsuit, publication occurswhen information is negligently or intentionally com-municated in any medium, from a newspaper to a website,to someone other than the person defamed.THE FIRST AMENDMENT HANDBOOK 3
  9. 9. The media can be liable for the republication of alibelous statement made by another person or entity butquoted in a news article.3 Letters to the editor that containunsupported derogatory accusations or false statements,as well as advertising appearing in a publication, alsocan be the basis of a libel suit against the news publisher. (Comments posted to a website usually won’t subjectthe news website to liability; however, see “Third-partypostings” below.)Falsity It often has been said that truth is an absolute defenseto libel.4 Absolute accuracy is not the appropriate crite-rion. Rather, the general standard is that the informationmust be substantially true. Under the common law, the media defendant hadthe burden of proving that the statements challengedby the plaintiff were true. The Supreme Court changedthat standard for libel suits involving public officials andpublic figures.5 Thus, plaintiffs are required to prove thatthe statements of fact were false. As a result of the Supreme Court’s decision inPhiladelphia Newspapers, Inc. v. Hepps, private individualssuing for libel also must prove the statement was false ifit involved a matter of public concern.6 An altered or inaccurate quotation that damages thereputation of the person quoted can be actionable.7Identification Plaintiffs must prove that the alleged defamatorypublication refers to them. This element of a libel lawsuitoften is referred to as the “of and concerning” principle:There can be no liability if the statement at issue is notproven to be “of and concerning” the plaintiff. Governmental entities cannot bring libel claims, norcan members of large groups (usually 25 people or more,as a rule of thumb). However, if the statement at issuecan be interpreted as referring to a particular person in agroup, that person can sue. Also, if the offending infor-mation pertains to a majority of the members of a smallgroup, any member of the group has standing to sue. A corporation may bring a libel claim if the allegeddefamatory statement raises doubts about the honesty,credit, efficiency or prestige of that business. However,if the statements refer only to corporate officers, thecorporation cannot litigate on their behalf.4 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  10. 10. Harm The heart of a libel suit is the claim that the plaintiff’sreputation was injured. In some states, harm does notneed to be shown if the statements in question concern acriminal offense, a loathsome disease, a female’s unchas- 1  •  LIBELtity, or matters harming a person’s business, trade, profes-sion or office. When any of these types of statements isinvolved, damage to the plaintiff’s reputation is presumed. In most states, damage to reputation also is presumedwhen accusations of fraud, incompetence or improperbehavior are made about business or professional people. If the defamatory nature of the statements can beproven only by introducing facts that were not publishedas part of the original statements, a plaintiff usually mustprove a monetary loss as a result of the publication torecover damages.Fault (public officials vs. private figures) All plaintiffs must demonstrate that the news organi-zation was at fault in some way. The U.S. Supreme Courthas recognized different standards for different types oflibel plaintiffs, with public officials and figures requiredto show the highest degree of fault. Celebrities and others with power in a communityusually are considered public figures. Politicians andhigh-ranking government personnel are public officials,as are public employees who have substantial responsibil-ity for or control over the conduct of governmental af-fairs. Some courts have found that public school teachersand police officers also are public officials. But determining if a person is a private or publicfigure is not always easy. In some instances, private andpublic categories may overlap. For example, a business-person who has high visibility because of fundraisingefforts in a community may not be a public figure forpurposes other than the individual’s community activity. Under the standard adopted by the Supreme Courtin the seminal libel case New York Times Co. v. Sullivan, aplaintiff who is considered a public figure or official hasa higher standard of proof in a libel case than a privateplaintiff. The public figure or official must prove thatthe publisher or broadcaster acted with “actual malice”in reporting derogatory information. “Actual malice,” inlibel parlance, does not mean ill will or intent to harm.Instead, it means the defendant knew that the challengedstatements were false or acted with reckless disregard forthe truth.THE FIRST AMENDMENT HANDBOOK 5
  11. 11. In determining whether actual malice exists, a courtmay examine a reporter’s newsgathering techniques.Although carelessness is not usually considered recklessdisregard, ignoring obvious methods of substantiatingallegations could be considered reckless. In Harte-Hanks Communications, Inc. v. Connaughton,8the Supreme Court held that even an extreme deviationfrom professional standards or the publication of a storyto increase circulation do not in themselves prove actualmalice. The Court also said that while failure to inves-tigate facts does not necessarily prove actual malice, a“purposeful avoidance of the truth” may. Edited quotations that are not verbatim will notnecessarily demonstrate actual malice as long as thealterations do not materially change the meaning of thewords the speaker used. In Masson v. New Yorker Magazine,Inc.,9 the U.S. Supreme Court acknowledged that someediting of quotations is often necessary, but it refused togrant blanket protection to all edits that are “rational”interpretations of what the speaker said. If the plaintiff is a private litigant, he or she must atleast prove that the publisher or broadcaster was negligentin failing to ascertain that the statement was false anddefamatory. Some states may impose a higher burden onprivate-figure litigants, especially if the story in questionconcerns a matter of public importance.10Defenses Truth is generally a complete bar to recovery by anyplaintiff who sues for libel. Ensuring that any potentiallylibelous material can be proven true can avoid needlesslitigation. Fair report. Libelous statements made by others incertain settings often are conditionally privileged if thereporter, in good faith, accurately reports informationof public interest. This privilege usually applies to mate-rial from official meetings such as judicial proceedings,legislative hearings, city council meetings and grand jurydeliberations. In most states, accurate reports of arrests,civil and criminal trials and official statements made to,by and about law enforcement officials are privileged.Reports of this nature must be accurate and fair in orderfor the reporter to invoke the fair report privilege, andit is advisable that the reporter explicitly attribute theinformation to the official source. Neutral report. Although less broadly recognized,this privilege can protect the publication of newsworthybut defamatory statements made about public figures6 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  12. 12. or officials by a responsible, reliable organization orperson, as long as the statements are reported accuratelyand impartially. Legal recognition of neutral reportagearose in 1977 after three scientists sued The New YorkTimes for reporting that the National Audubon Society 1  •  LIBELcalled the scientists “paid liars” when the society saidthat “scientist-spokesmen” of the pesticide industrywere being paid to falsely state that the pesticide DDTdid not kill birds. The U.S. Court of Appeals in NewYork (2nd Cir.) reversed the $20,000 jury award to eachscientist, holding that the First Amendment protects the“accurate and disinterested reporting” of charges madeby a “responsible, prominent organization.” The publicinterest in being informed about “sensitive issues,” thecourt noted, requires that the press be able to accuratelyreport, without fear of liability, newsworthy accusationsmade by responsible, reputable organizations.11 Othercourts have adopted the privilege in narrowly definedcircumstances and extended it beyond the Audubon hold-ing to include statements made by a responsible person(in addition to those made by a responsible organization)about a public official (in addition to those made about apublic figure). The privilege has been adopted in only afew jurisdictions and expressly rejected in several others. Third-party postings. Internet publishers gener-ally are not responsible for libelous information postedby their readers unless the publishers exercise editorialcontrol over the content. Section 230 of the Commu-nications Decency Act of 1996 insulates providers ofinteractive computer services from liability. Thus, newssites that let readers post comments will not be liable forthose comments. However, there are ways that this protection can belost. For example, these news sites are not protected bySection 230 if, rather than merely posting commentsprovided by third parties, their operators create the onlineposting in question, extensively edit it, or incorporatethe comments into subsequent news stories. Moreover,a website publisher may lose protection when he or she“prompts” responses from users. The U.S. Court of Ap-peals in Pasadena (9th Cir.), for example, held in 2007that the roommate-matching website Roommates.comwas protected from liability for comments posted by itsusers when it provided open fields for their “additionalcomments,” but the site lost Section 230 immunity whenit provided “drop-down” menus with answers for users’responses.12 Opinion is still protected speech under the FirstAmendment, although the Supreme Court limited theTHE FIRST AMENDMENT HANDBOOK 7
  13. 13. formerly broad reach of opinion protection in Milkovichv. Lorain Journal Co.13 The Court ruled that there is noseparate opinion privilege, but because factual truth isa defense to a libel claim, an opinion with no “provablyfalse factual connotation” is still protected. As a result of this decision, courts will examine state-ments of opinion to see if they are based on or presumeunderlying facts. If there are no facts given to support theopinion, or these facts are false, the “opinion” statementswill not be protected. Consent. If a person gives permission for the pub-lication of the information, that person cannot later suefor libel. However, denial, refusal to answer or silenceconcerning the statement do not constitute consent. The statute of limitations for bringing libel suitsvaries from state to state. The time limit for filing a libellawsuit generally starts at the time of the first publica-tion of the alleged defamation. If the plaintiff does notsue within the statutory time period, the litigation canbe barred. Although a retraction is not usually considered anabsolute defense to a libel claim, it may reduce the dam-ages a defendant must pay if found liable for defamation.However, retracting or correcting too much could be seenas an admission of falsity, which would be used againstyou in a libel suit. Before agreeing to publish a retraction,consult an attorney or contact the Reporters Committeefor more information. Anti-SLAPP statutes, which permit early dismissalof lawsuits that chill the exercise of free-speech rights,may help news organizations defend some libel suits.SLAPP stands for “strategic lawsuits against publicparticipation,” and anti-SLAPP statutes protect thoseengaged in debate about controversial matters fromlawsuits that would deter the exercise of their constitu-tional rights.14 Generally, anti-SLAPP statutes apply tonews organizations as well as individuals exercising theirfree-speech rights.Product libel Journalists who write about consumer productsshould be aware that their reports may be subject toproduct disparagement laws. In June 2002, a federal appeals court allowed aproduct disparagement lawsuit brought by Suzuki Mo-tor Corporation to go forward against the publisher ofConsumer Reports magazine.15 The court found that there8 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  14. 14. was sufficient evidence for a jury to find that the magazinerigged the results of automobile tests to give the SuzukiSamurai a “not acceptable” rating. A dissenting judge saidthe ruling created a standard for consumer reporting thatintrudes on free expression. 1  •  LIBEL A number of states have enacted statutes aimed spe-cifically at restricting the “disparagement” of food prod-ucts.16 The statutes generally authorize food producers tosue anyone who disparages a food product with informa-tion unsupported by reliable scientific data. While thesehave not been used often, Texas’ food disparagement lawwas used in a highly publicized case against “The OprahWinfrey Show” in 1998. The plaintiffs in the case, Texasfeed yard owners, claimed Winfrey caused a decrease inbeef sales when she said she would never eat a hamburgeragain for fear of mad cow disease. Winfrey won the suit.17Criminal libel Fewer than half of the states have criminal defama-tion statutes. Some of those laws, though still on thebooks, have been invalidated by court decisions. Even instates where criminal libel laws exist, prosecution underthose statutes is rare. Nevertheless, criminal libel laws areused against journalists from time to time, particularlywhen their reports are politically charged, and the personallegedly defamed has influence with a prosecutor’s office. Criminal libel laws are subject to the same consti-tutional requirements as civil libel law. Thus, a personcharged with criminal libel of a public figure can be foundguilty only if the allegedly defamatory statement is falseand was made with actual malice.18Infliction of emotional distress Individuals sometimes sue the news media for emo-tional distress caused by the publication of embarrassing,truthful facts. However, in Hustler Magazine v. Falwell,19 the Su-preme Court ruled that public figures and officials maynot recover for intentional infliction of emotional distresswithout demonstrating that the material in questioncontained a false statement of fact that was made withactual malice. The high Court noted that editorial car-toonists and other satirists must be protected not onlyfrom libel suits, but also from suits claiming emotionaldistress, when caricaturing public figures or commentingon matters of public concern.THE FIRST AMENDMENT HANDBOOK 9
  15. 15. Advice for avoiding libel suits Check sources thoroughly. Get independent cor-roboration whenever possible. A source could have avendetta against the subject and willfully or unintention-ally misrepresent the facts for his or her own purposes.Confidential sources, such as government employees,may disappear or recant in the face of a lawsuit. Don’trely on someone else to be accurate. Do not let your opinion about whether someone is apublic figure or official color your decision to verify theaccuracy of a story. Juries do not respond favorably toreporters who fail to confront their subjects with defama-tory information and provide them with an opportunityto comment. If you cover the police or courthouse beat, makecertain you understand criminal and civil procedure andterminology. Be especially careful to restate accuratelyany information obtained about arrests, investigationsand judicial proceedings. Be cautious when editing. Make sure the story doesnot convey the wrong information because of a hastyrewrite. Watch for headlines and cutlines that might be de-famatory even though the text explains the story. Make sure news promos or teasers used to stir audi-ence interest are not misleading or defamatory. Do not use generic video footage or file photoswhen reporting on an activity that might be consideredquestionable. Just because someone else said it does not mean thata news organization cannot be sued for republishing it.This includes letters to the editor. Check out any factualallegations contained in them as carefully as you wouldstatements in a news story. Be sensitive about using words that connote dis-honest behavior, immorality or other undesirable traits,whether in your published story or in comments in yournotes. Remember that a judge may order a news orga-nization to produce reporters’ notes, drafts and internalmemoranda at a libel trial. If contacted by someone threatening a libel suit, bepolite, but do not admit error or fault. Talk the case overwith your editor, supervisor or attorney immediately, andfollow procedures established by your news organiza-tion. You can also contact the Reporters Committee formore assistance, particularly if you are an independentjournalist.10 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  16. 16. Chapter 2Invasion of privacy Almost every state recognizes some right of privacy, 2  •  INVASION OF PRIVACYeither by statute or under common law — the traditionalcourt-made law that U.S. courts adopted long ago fromthe English standards. Most state laws attempt to strike abalance between the individual’s right to privacy and thepublic interest in freedom of the press. However, theserights often clash. The concept of a right to privacy was first articulatedin an 1890 Harvard Law Review article by Louis Brandeisand Samuel Warren. It took U.S. courts 15 more years torecognize it. The Georgia Supreme Court was the firstto do so in Pavesich v. New England Life Insurance Co.,1 acase involving the use of an individual’s photograph in anewspaper advertisement without his permission. Invasion of privacy is considered a personal tort,aimed at protecting the individual’s feelings — feelingsoften articulated by courts as “reasonable expectations ofprivacy.” Corporations ordinarily cannot claim a right ofprivacy, and surviving heirs generally cannot file suit onbehalf of a decedent.2 Public figures have a limited claim to a right ofprivacy. Past and present government officials, politicalcandidates, entertainers and sports figures are generallyconsidered to be public figures. They are said to have ex-posed themselves to scrutiny voluntarily and to have waivedtheir right of privacy, at least in matters that might havean impact on their ability to perform their public duties. Although private individuals usually can claim theright to be left alone, that right is not absolute. Forexample, if a person who is normally not considered apublic figure is thrust into the spotlight because of herparticipation in a newsworthy event, her claims of a rightof privacy may be limited. A right of privacy can be violated by any means ofcommunication, including spoken words. This tort isusually divided into four categories: intrusion, publicationof private facts, false light and misappropriation.Intrusion Privacy is invaded when one intentionally intrudes,physically or otherwise, upon a person’s solitude or intoTHE FIRST AMENDMENT HANDBOOK 11
  17. 17. his private area or affairs. Intrusion claims against the media often center onsome aspect of the newsgathering process. This tort mayinvolve the wrongful use of recording devices, cameras orother intrusive equipment. Trespass also can be a form ofintrusion. Reporters should be aware that, in addition toliability for tortious invasions of privacy, anti-paparazzilaws also may create statutory liability, sometimes bothcivil and criminal, for newsgathering that involves tres-pass or harassment. California enacted such a law in 1998,and the U.S. Congress considered a similar bill in 1999.3 Because the basis of an intrusion claim is the offen-sive prying into the private domain of another and notany subsequent publicity given to that person or his orher private affairs, an actionable claim for intrusion mayarise whether or not a news story is published or aired.For example, the leading legal guide on the accepteddefinitions of torts (known as the Restatement (Second)of Torts) lists the following scenario as an example of ahighly offensive intrusion for which the reporter wouldbe subject to liability: “A, a woman, is sick in a hospitalwith a rare disease that arouses public curiosity. B, anewspaper reporter, calls her on the telephone and asksfor an interview, but she refuses to see him. B then goes tothe hospital, enters A’s room and over her objection takesher photograph. B has invaded A’s privacy,” regardless ofwhether B ever publishes the photograph.4 The California Supreme Court has held that audioand video recording of rescue efforts at an interstate ac-cident scene would not constitute intrusion, but tapingthe same accident victims once they have been movedto a rescue helicopter could be considered an invasionof privacy.5Publication of private facts Publication of truthful information concerning theprivate life of a person that would be both highly offen-sive to a reasonable person and not of legitimate publicinterest is an invasion of privacy in some states. Liabilityoften is determined by how the information was obtainedand its newsworthiness, and varies from community tocommunity, as offensiveness is a jury question. Revealing private, sensational facts about a person’ssexual activity, health or economic status can constitutean invasion of privacy. Reporting news events that take place in public gen-erally does not constitute invasion of privacy. Arrests areconsidered newsworthy and, therefore, the press is free12 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  18. 18. to accurately report them. Even a couple’s intimate mo-ment in public, captured in a photograph, is not action-able as long as a reasonable person would not considerthe picture private. Courts usually find that individualshave no “reasonable expectation of privacy” when theyare in public. Although relatively few courts have found publica-tion of private information sufficiently offensive and suf- 2  •  INVASION OF PRIVACYficiently lacking in newsworthiness to impose liability onthe media, there are instances when they may be liable forinvasion of privacy based on the highly offensive publicdisclosure of private facts. In perhaps the most well-known case, the MissouriSupreme Court ruled that Time magazine invaded Doro-thy Barber’s privacy when it published a story about herunusual eating disorder, which caused her to lose weighteven though she consumed large amounts of food. Aphotograph of Barber, taken against her will as she layin a Missouri hospital bed, accompanied the story, whichdubbed her the “starving glutton.” Because Barber’s oddcondition was not contagious, there was no need to revealher identity to the public to alert people who had beenin contact with her, the Missouri court said. Thus, Timecould have informed the public about her newsworthydisease without the embarrassing revelation of her iden-tity, the court added.6 Public revelations about children, particularly theirmedical conditions and treatment, also may subject themedia to liability for invasion of privacy. In 1990, EricForetich, the father of nine-year-old Hilary Foretich,brought a privacy claim on behalf of his daughter againstLifetime Cable Network and the BBC after the networksfeatured Hilary in a television documentary about childabuse. The documentary showed Hilary talking to hermother during a therapy session and demonstratingwith anatomically correct dolls how her father had al-legedly abused her sexually. After a federal court ruledthat Foretich had stated an actionable claim for private-facts invasion of privacy, Lifetime and BBC settledwith Foretich, paying him $175,000 but not admittingliability.7 Public records: If information comes from a publicrecord, such as a birth certificate, police report or judicialproceeding, the media usually are not liable for reportingit. A newspaper can print a list of people who have beengranted divorces, for instance, when the information isderived from court records, no matter how embarrassingit is to the individuals.8 However, not all information keptby public agencies is considered part of the public record.THE FIRST AMENDMENT HANDBOOK 13
  19. 19. Some states restrict the release of certain informa-tion, even though it is part of an official record, by sealingthe files or restricting public and news media access tocertain proceedings. However, if the press lawfully obtains truthful infor-mation about a matter of public concern from govern-ment sources, the state may not constitutionally punishpublication of the information absent the need to furthera state interest of the highest order.9 Reporters should use caution in relying upon semi-public documents. For example, a police detective’s notesthat do not become part of the official police report maynot be official records. If a document relied upon by areporter was found to be only semi-public, the reportermight not be privileged to report the information con-tained in it. However, one federal appellate court has ruled thatpublishing information from a secret police report isnot an invasion of privacy because there is no reasonableexpectation that information given to the police will bekept secret.10 Passage of time: The newsworthiness of a privatefact may be affected by the passage of time. Problemsmay occur when individuals who were once notoriousbut are now rehabilitated become subjects of historicalcommentaries that refer to their former crimes or indis-cretions. Private facts published in a popular feature, suchas a “25 Years Ago Today” column, could be consideredan invasion of privacy if the subject is not a public figureor is deemed to have lost his public figure status. Disclosed facts about both public officials and publicfigures are not subject to the passage of time rule. Community standards: The sensibilities of thecommunity also must be considered when determining ifa private fact should be reported. The law is not designedto protect the overly sensitive. Newsworthiness as a defense: The court may con-sider several factors in determining whether informationpublished is newsworthy, including the social value of thefacts published, the extent to which the article intrudedinto ostensibly private affairs, and whether the personvoluntarily assumed a position of public notoriety. For example, a man who saved Gerald Ford’s life bystriking and grabbing the arm of an attempted assassinjust as she prepared to shoot the president lost a private-facts case based on the public disclosure of his sexualorientation after a California court ruled that the man’shomosexuality was of legitimate public interest because14 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  20. 20. the man’s courageous act cast often-stereotyped homo-sexuals in a positive light. There was also a newsworthyquestion about whether President Ford delayed a publicexpression of gratitude toward the man because of hissexual orientation.11False light 2  •  INVASION OF PRIVACY False light invasion of privacy occurs when informa-tion is published about a person that is false or places theperson in a false light, is highly offensive to a reasonableperson, and is published with knowledge or in recklessdisregard of whether the information was false or wouldplace the person in a false light. Although this tort is similar to defamation, it isnot the same. The report need not be defamatory to beactionable as false light. This type of invasion of privacytends to occur when a writer condenses or fictionalizesa story, or uses stock footage to illustrate a news story. False light includes embellishment (the additionof false material to a story, which places someone in afalse light), distortion (the arrangement of materials orphotographs to give a false impression) and fictionaliza-tion (references to real people in fictitious articles or theinclusion in works of fiction of disguised characters thatrepresent real people). Some courts may consider works offiction constitutionally protected expressions even if theycontain characters that resemble, or clearly were based on,identifiable individuals known by the author or creator.12Misappropriation The use of a person’s name or likeness for commercialpurposes without consent is misappropriation. The lawprotects an individual from being exploited by others fortheir exclusive benefit. A person’s entire name need notbe used. If the person could reasonably be identified, themisappropriation claim probably will be valid.13 However, incidental references to real people inbooks, films, plays, musicals or other works, whether factor fiction, generally are not misappropriations.14 More-over, use of a photograph to illustrate a newsworthy storyis not misappropriation. Even if a photo is used to sell amagazine on a newsstand, courts usually will not considerthat use a trade or commercial purpose. The line betweennews and commercial use is not always clear, however,and even photographs used to illustrate an article maycreate liability for misappropriation if the article has anoverriding commercial purpose.15THE FIRST AMENDMENT HANDBOOK 15
  21. 21. Right of publicity Some states recognize a right of publicity, whichprotects a celebrity’s commercial interest in the exploita-tion of his or her name or likeness. In some jurisdictions,this right may descend to heirs or be assigned to othersafter the person’s death. Use of a famous person’s name or likeness, withoutconsent, to sell a product is usually misappropriation.However, other unauthorized uses of celebrities’ imagesmay violate their publicity rights. Model Christie Brinkley, for example, successfullysued to stop the unauthorized use of her picture onposters that hung in retail stores but did not advertiseany product.16 Thus, trading on a celebrity’s fame andpopularity even for noncommercial purposes, includingpublic relations campaigns or other promotions, is anunauthorized use of the famous person’s name or likenessthat could violate his or her right of publicity.Other newsgathering concerns Subjects of news stories sometimes sue news or-ganizations under other causes of action, such as fraudor trespass. These claims have proceeded with varyingsuccess. In a case involving a hidden-camera investiga-tion by ABC News that revealed a grocery chain’s unsafepractices, a federal appeals court rejected a fraud claimbut allowed nominal damages for claims of trespass andbreach of the duty of loyalty. The court said that ABCNews employees who gained employment with the grocerand videotaped nonpublic areas of the store could be li-able for only $2 in damages.17 Journalists should be mindful of privacy issues whenengaging in “ride-alongs” with law enforcement officials.In 1997, the U.S. Court of Appeals in San Francisco (9thCir.) held that members of a television news camera crewwho taped the execution of a search warrant on privateproperty were so closely aligned with the law enforcementofficers that they became “state actors” who could beheld liable for civil rights violations. The Supreme Courtreviewed the case and held that police officers could beliable for bringing the media inside a home, but the Courtdeclined to rule on the liability of the media defendants.The case ultimately settled out of court.18Defenses If a person consents, there can be no invasion ofprivacy. However, the reporter should be sure that the16 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  22. 22. subject has consented not only to the interview, but tothe publishing or airing of the interview or photographsas well. When minors or legally incompetent peopleare involved, the consent of a parent or guardian maybe necessary. A written release is essential for use ofpictures or private information in advertising or othercommercial contexts. Truth can be a defense, but only in false light cases. 2  •  INVASION OF PRIVACYA litigant claiming false light invasion of privacy who isinvolved in a matter of public interest must prove thatthe media intentionally or recklessly made erroneousstatements about him. However, truth is not a defenseto a claim based on publication of private facts. If the public has a legitimate interest in the story asit was reported, newsworthiness can be a defense to thecharge of invasion of privacy. But if the report of legiti-mate public interest includes gratuitous private informa-tion, publication of those private facts may be actionable.Reporter’s privacy checklistConsent from the subject• Is the subject an adult? If not, do you have parental consent?• Is the person mentally or emotionally disabled and un- able to give consent? Have you obtained valid consent from a guardian or other responsible party?• Has that consent been revoked?• Is the subject currently a private or public figure? Has the person’s status changed over time?Method of obtaining information• Is it a public place?• If it is a private place, do you have permission to be on the premises and permission to interview or pho- tograph?• Was the information contained in a public record? A semi-public record?Content• Would publication of the information offend com- munity standards of decency?• Have the facts been embellished with information of questionable accuracy?• Is the information outdated and not obviously of cur- rent public interest, or has a current event revived its newsworthiness?• Is the information vital to the story?THE FIRST AMENDMENT HANDBOOK 17
  23. 23. John Peter Zenger was charged with libel for publishing this story in the December 17, 1733, edition of the New York Weekly Journal. Courtesy of the Scheide Library, Princeton University.18 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  24. 24. Chapter 3Surreptitious recording Some reporters regard recorders and cameras asintrusive devices that all but ensure that intervieweeswill be uncooperative. To others, they are invaluablenewsgathering tools that create important documentary 3  •  SURREPTITIOUS RECORDINGevidence of a conversation. News organizations frequently adopt policies regard-ing surreptitious use of these news­ athering tools. It is gcritical that reporters and news organizations know thestate and federal laws that govern the use of cameras andrecording devices. The summary that follows is intendedas an introduction to those laws. You may record, film, broadcast or amplify anyconversation if all parties to the conversation consent. Itis always legal to record or film a face-to-face interviewwhen your recorder or camera is in plain view. In theseinstances, the consent of all parties is presumed. Of the 50 states, 38, as well as the District of Colum-bia, allow you to record a conversation to which you are aparty without informing the other parties you are doingso. Federal wiretap statutes also permit this so-calledone-party-consent recording of telephone conversationsin most circumstances.1 Twelve states forbid the recordingof private conversations without the consent of all parties.Those states are California, Connecticut, Florida, Illinois,Maryland, Massachusetts, Michigan, Montana, Nevada,New Hampshire, Pennsylvania and Washington.2 The federal wiretap law, passed in 1968, permitssurreptitious recording of conversations when one partyconsents, “unless such communication is intercepted forthe purpose of committing any criminal or tortious actin violation of the Constitution or laws of the UnitedStates or of any State.” Amendments signed into law in1986 and 1994 expand the prohibitions to unauthorizedinterception of most forms of electronic communica-tions, including satellite transmissions, cellular phoneconversations, computer data transmissions and cordlessphone conversations. Most states have copied the federal law. Some expandon the federal law’s language and prohibit all surrepti-tious recording or filming without the consent of allparties. Some state statutes go even further, prohibitingunauthorized filming, observing and broadcasting in ad-THE FIRST AMENDMENT HANDBOOK 19
  25. 25. dition to recording and eavesdropping, and prescribingadditional penalties for divulging or using unlawfullyacquired information, and for trespassing to acquire it.In most states, the laws allow for civil as well as criminalliability. Many of the state statutes make possession of wire-tapping devices a crime even though one-party consentto taping conversations may be allowed. Most of the state statutes permit the recording ofspeeches and conversations that take place where the par-ties may reasonably expect to be recorded. Most statutesalso exempt from their coverage law enforcement agen-cies and public utilities that monitor conversations andphone lines in the course of their businesses. In general, state statutes apply to conversations thattake place within a single state. When the conversation is between parties in stateswith conflicting eavesdropping and wiretapping laws,federal law generally applies, although either state alsomay choose to enforce its laws against a violator. If a reporter in a state that allows one-party-consentrecording calls a party in a state that requires two-partyconsent, and records the conversation surreptitiously —which is legal under federal law — a state with toughlaws prohibiting unauthorized recording may chooseto apply its laws regardless of the location of the calleror the existence of the federal statute. It is important toknow your state law and the law in the state into whichyou call before you record surreptitiously. The federal law and many state laws make it illegalto possess — and particularly to publish — the contentsof an illegal wiretap. Some states that allow recordingsmake the distribution or publication of those otherwiselegal recordings a crime. The U.S. Supreme Court ruledin Bartnicki v. Vopper in May 2001 that the media couldnot be held liable for damages under the federal statutefor publishing or broadcasting information that the mediaobtained from a source who had conducted an illegalwiretap. The recording related to a local union leader’sproposal to conduct violent acts in the area. The Courtruled that any claim of privacy in the recorded informa-tion was outweighed by the public’s interest in a matterof serious public concern.3 The Court did not indicatewhether disclosure by the media under different circum-stances would be legal. The Federal Communications Commission also hasadopted a policy, known as the “Telephone Rule,”4 whichrequires a reporter who records a telephone conversation20 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  26. 26. that will later be broadcast to inform the other party thatthe recording is intended for broadcast.State hidden camera statutes The laws of 13 states expressly prohibit the unauthor-ized installation or use of cameras in private places. In Ala-bama, Arkansas, California, Delaware, Georgia, Hawaii,Kansas, Maine, Michigan, Minnesota, New Hampshire,South Dakota and Utah, installation or use of any devicefor photographing, observing or overhearing events or 3  •  SURREPTITIOUS RECORDINGsounds in a private place without the permission of thepeople photographed or observed is against the law. Aprivate place is one where a person may reasonably expectto be safe from unauthorized surveillance.5 Alabama, Delaware, Georgia, Hawaii, Kansas,Maine, Michigan, Minnesota, South Dakota and Utahalso prohibit trespassing on private property to conductsurveillance of people there. In most of these states,unauthorized installation or use of a hidden camera,or trespassing to install or use one, is a misdemeanor,punishable by a fine. In Maine, the privacy violation is afelony. In Michigan, unauthorized installation or use ofa hidden camera is a felony, punishable by a $2,000 fineand up to two years in prison.6 Several states have laws prohibiting the use of hiddencameras only in certain circumstances, such as in lockerrooms or restrooms, or for the purpose of viewing aperson in a state of partial or full nudity.7THE FIRST AMENDMENT HANDBOOK 21
  27. 27. A copy of the Declaration of Independence printed July 4, 1776. Courtesy of the Scheide Library, Princeton University.22 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  28. 28. Chapter 4Confidential sourcesand information The use of subpoenas to force journalists to disclosetheir confidential news sources and unpublished informa-tion significantly intrudes on the newsgathering process. Apart from diverting staff and resources from news-gathering, subpoenas issued to the news media presentserious First Amendment problems. The forced disclo-sure of sources or information threatens the constitu- 4  •  CONFIDENTIAL SOURCES AND INFORMATIONtional right to a free press by undercutting the media’sindependence from government and deterring coverageof matters likely to generate subpoenas. Indeed, the U.S.Court of Appeals in Philadelphia (3rd Cir.) has recognizedthat “the interrelationship between newsgathering, newsdissemination, and the need for a journalist to protecthis or her source is too apparent to require belaboring.”1Legislative protection of news sources Thirty-nine states and the District of Columbia haveadopted shield laws affording the media varying degreesof protection against subpoenas.2 Some shield laws pro-tect reporters from forced disclosure of their confidentialnews sources, but not of unpublished material. Other lawsprovide absolute or qualified protection according to thetype of legal proceeding involved (civil or criminal) orthe role of the journalist in the proceeding (defendant orindependent third party). In many states without shield laws, state courts haverecognized some form of qualified privilege. In others,state constitutions may include “free press” provi-sions, which are similar to the U.S. Constitution’s FirstAmendment protections, and afford qualified protection.Wyoming is the only state where neither the courts norlegislature has recognized a privilege to protect unpub-lished sources or information. Journalism organizations have long been fightingfor a federal reporter’s privilege. At the end of 2010,shield bills had passed the House of Representatives andbeen approved by the Senate Judiciary Committee, butdisagreement among senators about who would qualify asbona fide journalists entitled to protect their confidentialsources has prevented passage by the full Senate. Reporters should become familiar with the scope ofTHE FIRST AMENDMENT HANDBOOK 23
  29. 29. their state’s privilege to withhold confidential sources andinformation, as recognized by a shield law, state constitu-tion or in case law. The Reporters Committee maintainsa compendium of reporter’s privilege laws in the statesand federal circuits at www.rcfp.org/privilege.The constitutional privilege and its limits The issue of whether the First Amendment creates aprivilege to withhold confidential information came be-fore the U.S. Supreme Court in 1972 in a trilogy of casesdecided together under the name Branzburg v. Hayes.3The Court ruled that reporters have no First Amendmentright to refuse to answer all questions before grand juriesif they actually witnessed criminal activity. Justices Lewis Powell and Potter Stewart, however,recognized a qualified constitutional privilege in twoseparate opinions. Powell, while agreeing with the ma-jority, wrote a concurrence arguing that reporters wouldstill be able to contest subpoenas if they were issued inbad faith, or if there were no legitimate law enforcementneed for the information. Stewart, dissenting, made amuch stronger case for a robust privilege, arguing thatanything less would allow officials to “annex” the newsmedia as “an investigative arm of government.” Two otherjustices joined Stewart. These four justices, together withJustice William O. Douglas, who dissented in a separateopinion, gave the notion of a qualified constitutionalprivilege a majority. Since Branzburg, many federal and state courts haveacknowledged the existence of some form of qualifiedconstitutional privilege. Where the privilege is recog-nized, the courts generally use a three-part balancing testto assess whether the subpoenaed information is clearlyrelevant and material to the pending case, whether itgoes “to the heart of the case” and whether it could beobtained from other sources besides the media. The Branzburg ruling is usually strictly applied toany journalist subpoenaed to testify before a grand jury,especially if the reporter was a witness to a crime. Whenan important criminal proceeding is at stake, courts mayfind that the public interest is better served by compellingthe reporter to testify. In recent years, federal courts have shown greaterreluctance to recognize a privilege under the FirstAmendment. Beginning in 2003, the U.S. Court of Ap-peals in Chicago (7th Cir.) has said twice that the privilegedoes not exist.4 In 2005, the U.S. Court of Appeals in24 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  30. 30. the District of Columbia (D.C. Cir.) said a grand jury’sneed for information outweighed any reporter’s privilegeafter New York Times reporter Judith Miller refused totestify about her sources for a story about CIA opera-tive Valerie Plame.5 Miller spent 85 days in jail beforeagreeing to testify. In criminal trials, many courts apply the three-partbalancing test to determine whether the defendant’s SixthAmendment right to confront all witnesses against himoutweighs the reporter’s need for confidentiality. Thedecision usually comes down to whether the informationsought is clearly essential to the proof of the crime, or tothe accused’s defense. 4  •  CONFIDENTIAL SOURCES AND INFORMATION Additionally, many states will not allow reporters toassert shield law protections to avoid testifying if theywitness criminal activity.6 A reporter is most likely to enjoy at least a qualifiedconstitutional privilege in civil cases to which he or she isnot a party. The courts frequently find that the public in-terest in protecting the reporter’s news sources outweighsthe private interest in compelling the reporter’s testimony. In libel cases, however, reporters who are defendantsmay face demands to reveal their confidential sources,particularly if the contested information is the basis ofthe allegedly defamatory reports. Public officials and public figures, who must dem-onstrate actual malice, argue that they need to know thenames of confidential sources (if any exist) to demonstratethat the reporters knew their stories were false or actedin reckless disregard of the truth. These plaintiffs alsoargue that access to unpublished information is neces-sary to determine if the selection of information for anews story showed actual malice on the part of the newsorganizations. A number of trial courts have held that before areporter can be compelled to testify in libel cases, theplaintiff must prove by substantial evidence that thechallenged statement was published and is both factuallyuntrue and defamatory. The plaintiff also must prove that reasonable effortsto discover the information from alternative sources havebeen made, and no other reasonable source is available.Further, these plaintiffs must show that the informant’sidentity is needed to properly prepare the case. Courts also have begun to recognize that subpoe-nas issued to non-media entities that hold a reporter’stelephone records, credit card transactions or similarTHE FIRST AMENDMENT HANDBOOK 25
  31. 31. material may threaten editorial autonomy, and the courtsmay apply the reporter’s privilege if the records are beingsubpoenaed in order to discover a reporter’s confidentialsources.7Internet issues Many courts have agreed that a journalist who pub-lishes only online can be a reporter for the purposes ofshield laws, provided that he or she regularly gathers anddisseminates news to the public. For example, the California Court of Appeal in2006 interpreted the term “magazine or other periodi-cal publication” in the state’s shield law to include twowebsites devoted to news and information about AppleMacintosh computers and related products. In allow-ing the defendant-bloggers to invoke the shield law asprotection from compelled disclosure of the identities ofanonymous sources who leaked confidential trade secretsabout soon-to-be-released Apple products, the court con-cluded that the online publishers’ activities “constitute[d]the gathering and dissemination of news, as that phrasemust be understood and applied under our shield law.”8 Moreover, the New Hampshire Supreme Courtfound that the privilege derived from the state consti-tution’s guarantee of freedom of the press protected awebsite providing information about the mortgage in-dustry.9 The court rejected an argument that the websitewas ineligible for protection under the privilege becauseit was neither an established media entity nor engagedin investigative reporting. Rather, because the website“serve[d] an informative function and contribute[d] tothe flow of information to the public ... [it was] a reporterfor purposes of the newsgathering privilege,” the courtstated. For the protection to apply to these online-onlypublishers, their intent to gather and report news must beevident. A panel of the New Jersey Appellate Division, infinding that a defendant — a website operator investigat-ing the online adult entertainment industry — could notinvoke the state shield law in relation to comments sheposted on a pornography watchdog website, wrote that,“new media should not be confused with news media.There is, of necessity, a distinction between, on the onehand, personal diaries, opinions, impressions and expres-sive writing and, on the other hand, news reporting.”10 Regardless of their performance of a news function,however, online-only reporters who work in states withshield laws that require reporters to be salaried employees26 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  32. 32. of a traditional media organization may be less likely toqualify for the privilege.A reporter’s obligation to a source Subpoena battles often arise out of a journalist’scommitment to keep his or her source confidential. Manyreporters consider their promises to confidential sourcesto be sacred, and routinely have faced jail to protect theirsources. In 1991, the Supreme Court was asked to decidewhether a confidential source may sue a news organiza-tion that reveals its identity without its consent.11 The 4  •  CONFIDENTIAL SOURCES AND INFORMATIONSupreme Court ruled that the First Amendment doesnot protect journalists from such suits, and left it to thestates to decide whether media organizations would besubject to ordinary rules of contracts and “promissoryestoppel” (in which a court enforces a promise made toa party who relied on it to his detriment). Many news organizations have reexamined theirpolicies on whether reporters have the authority topromise unconditional confidentiality to a source, orwhether editors can overrule such promises. You shouldfamiliarize yourself with the policy in effect at your newsorganization.Anonymous comments online:Protecting newsgathering even for strangers With the steady increase in online publishing, po-tential civil plaintiffs or prosecutors have been seekingthe identities of anonymous online commenters on webstories. This is often done through a subpoena served ona news organization or on the publisher of a blog. When faced with a subpoena for anonymous Internetcomments or postings, a publication may choose to treatit like any other subpoena for newsgathering material, orit may decide that it has not promised commenters ano-nymity and therefore will comply with such subpoenas.The course of action you choose to take should dependon what you’ve promised your readers and commenters,and how willing you are to undertake a court fight overthe subpoena. If your news site has a privacy policy, it may alreadyhave procedures in place for how it will treat user in-formation and whether or to what extent it will protectcommenters’ identities. However, it is not necessary forwebsites to maintain these policies in order for com-menters’ identities to be kept private.THE FIRST AMENDMENT HANDBOOK 27
  33. 33. In the legal context, websites or Internet providerscan sometimes be the default gatekeepers between po-tential libel plaintiffs and their defendant commentersdue to Section 230 of the Communications Decency Act,47 U.S.C. § 230(c)(1). This federal law provides websiteand Internet service owners with tort immunity fromcomments posted by others, stating in relevant part, “Noprovider or user of an interactive computer service shallbe treated as the publisher or speaker of any informationprovided by another information content provider.” Be-cause the provider cannot be held liable, plaintiffs mustfind out the identity of the individual poster in order tofile suit. Some news organizations choose to fight commentersubpoenas pursuant to a local reporter’s privilege. Othersdo not. The New York Times in 2010 published an articlediscussing how major media outlets were questioningto what extent their online components should allowanonymous commenting in the future. The story notedthe slow move away from widespread anonymity, whichhas been common on the Internet since its inception,sparked by lawsuits over anonymous comments.12 Regarding the use of shield laws to protect the identi-ties of commenters, there is disagreement as to whetheranonymous commenters are sufficiently analogous tosources that are promised anonymity or confidentialityin exchange for sensitive information. Such commentersplay a less meaningful role in the newsgathering andreporting process, even if they are contributing relevantinformation, because they did not interact with the jour-nalist reporting the story. A few states have had rulings allowing shield laws tobe used to protect anonymous speech on news organi-zation’s websites, including Florida, Montana, Oregonand Texas. Another factor that can instruct an organization’sdecision is the nature of the comment itself. The Cleveland Plain Dealer in March 2010 volun-tarily unmasked the identity of an anonymous commenterafter it learned that the account used was registered toa local judge who was hearing the case described in thearticle. The newspaper’s decision to voluntarily reveal thesource of the online comments sparked debate betweenthose who feared a chill on future posting and those whofelt the public had a right to know. In a 2009 case, the Las Vegas Review-Journal firstresisted a subpoena for information about 100 com-ments, and then cooperated with a narrower version28 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  34. 34. of the subpoena that requested information about onlytwo of the anonymous commenters on one of its onlinearticles. The ACLU fought against disclosure on behalfof the commenters themselves. Furthermore, the strength of a potential plaintiff’scase can influence a publication’s decision whether tofight the subpoena or not. In many states, the party whorequested the subpoena faces a challenging legal battle ifhe or she is unable to present a basic case for defamationagainst the author of the comments. States have different standards as far as how muchproof a plaintiff must show to compel disclosure of acommenter’s identity. 4  •  CONFIDENTIAL SOURCES AND INFORMATION In New Jersey and Delaware, courts have found astrong First Amendment interest in anonymous speechand require the plaintiff to present a basic case of defama-tion before the identity can be revealed. Dendrite International v. Doe No. 3,13 a New Jerseycase, established a five-part test for courts to follow,allowing disclosure if (1) the plaintiff makes efforts tonotify the anonymous poster and allow a reasonable timefor him or her to respond; (2) the plaintiff identifies theexact statements made by the poster; (3) the complaintsets forth a basic cause of action; (4) the plaintiff presentssufficient evidence for each element of the claim; and (5)the court must balance the defendant’s First Amendmentright of anonymous free speech against the plaintiff’sneed for disclosure and the strength of the plaintiff’s case. Other states, such as Virginia, have set a lower barfor plaintiffs, and ordered the release of the identities ofanonymous commenters as long as the plaintiff believes ingood faith that he or she has been a victim of defamation.14 Publishers should know their respective state’s gov-erning law on disclosure of online identities, if there isone, to determine the standards of proof a plaintiff mustshow. This will allow for fully informed decision mak-ing. Online news sites that want to protect the identitiesof commenters should seek advice from an attorney, orcontact the Reporters Committee.What to do when you are subpoenaed Receiving a subpoena does not mean the marshal willbe coming to the door to arrest you. It is simply noticethat you have been called to appear at a deposition orother court proceeding to answer questions or to supplycertain documents. You may not ignore a subpoena, however. If you failTHE FIRST AMENDMENT HANDBOOK 29
  35. 35. to appear at the time and place specified, you could beheld in contempt of court, and fined or imprisoned, orboth. If you are subpoenaed, there are certain steps youshould take immediately. Under no circumstances should you comply with thesubpoena without first consulting a lawyer. It is imperativethat your editor or your news organization’s legal counselbe advised as soon as a subpoena is served so a plan ofaction can be developed. If you are working independently, call the ReportersCommittee for assistance in locating an attorney. If your state has a shield law, the lawyer must deter-mine whether it applies to the information sought and tothe type of proceeding involved. Even if your state doesnot have a shield law, state courts may have recognizedsome common law or constitutional privilege that willprotect you. Working with your editor, the lawyer will then rec-ommend a strategy for handling the subpoena, takinginto account your news organization’s policy governingcompliance with subpoenas and revelation of unpublishedinformation or the names of sources. If a subpoena requests only published or broadcastmaterial, your newspaper or station may elect to turn overthese materials without dispute, as a matter of policy. Ifthe materials sought are unpublished, such as notes orouttakes, or concern confidential sources, it is unlikelythat your employer has a policy to turn over those ma-terials voluntarily. Every journalist should be familiar with the news or-ganization’s policy for retaining notes and drafts. Followthe rules and do so consistently. If your news organizationhas no formal policy, talk to your editors about estab-lishing one. Never destroy notes, tapes, drafts or otherdocuments once you have been served with the subpoena. In some situations, your news organization may notagree that sources or materials should be withheld, andmay try to persuade you to reveal the information to theparty issuing the subpoena. If the interests of your newsorganization differ from yours, it may be appropriate foryou to seek separate counsel.Separation orders Reporters who have been subpoenaed for testimonymay be subject to “separation orders” — orders that keepwitnesses out of the courtroom when other witnesses are30 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  36. 36. testifying. These are designed to keep witnesses fromhearing and being influenced by the testimony of thoseother witnesses. When applied to reporters, they preventthem from covering trials or other legal proceedings. Areporter is unlikely to succeed in objecting to a separa-tion order if the subpoena on which the order is based isupheld, although some courts have been willing to limitthe order in such cases.15 Reporters who need to cover a trial and yet have theirnames placed on the witness list should immediately seekassistance from an attorney or call the Reporters Com-mittee. The order must be challenged as soon as possible,not just when it is enforced. 4  •  CONFIDENTIAL SOURCES AND INFORMATIONSanctions If a reporter refuses to comply with a subpoena afterbeing ordered by a court to do so, the court may imposea sanction. The reporter may be held in contempt. Civil con-tempt can result in a fine or incarceration, which termi-nates when the reporter divulges the information soughtor when the underlying proceeding is completed. Criminal contempt may be used to punish an affrontto the court, such as a reporter’s obstruction of courtproceedings by refusing to testify. Criminal contempt willresult in a fine and/or sentence, but unlike civil contempt,the jail sentence is for a set period of time and does notend if a reporter decides to testify. Some state shield laws provide that reporters cannotbe held in contempt for refusing to testify. If a reporter is a party to a case, such as a defendant ina libel or privacy suit, and refuses to reveal a confidentialsource or unpublished information, some courts will rulethat the reporter automatically loses the suit.16 A courtalso may prohibit the reporter or news organization fromintroducing evidence gathered from confidential sources.Or, the court may presume as a matter of law that thereporter never had a confidential source, whether or notthis is the case. This means that the reporter may losethe suit unless he or she decides to disclose the source.Newsroom searches In 1978, the Supreme Court ruled that a warrant maybe issued to search a newsroom or a reporter’s home ifthere is reason to believe that evidence of a crime willbe found there. In that case, police searched a collegenewspaper’s newsroom for photographs identifying someTHE FIRST AMENDMENT HANDBOOK 31
  37. 37. demonstrators who had injured policemen.17 In direct reaction to this ruling, Congress passedthe Privacy Protection Act of 1980, which limits thecircumstances under which federal, state and local lawenforcement officials may obtain warrants to search forjournalists’ “work product materials” or “documentarymaterials.”18 “Work product materials” are items created or pos-sessed for the “purposes of communicating such materialsto the public,” such as drafts of articles, outtakes or notes.“Documentary materials” are “materials upon whichinformation is formally recorded,” such as photographsor audio and visual recordings. The act lists some exceptions. “Work product materi-als” and “documentary materials” may be seized undera search warrant if there is “probable cause to believe”the reporter has committed, or is committing, a crimeto which the materials relate. Also, if the information isnecessary to prevent death or serious harm to someone,it may be seized. “Documentary materials” also may be seized undera search warrant if the advance notice provided when asubpoena is issued would result in the destruction of thematerials, or if a previous subpoena has been ignored,all legal remedies to enforce the subpoena have beenexhausted and any further delay in the trial or investiga-tion would “threaten the interests of justice.” Additionally, neither “work product materials” nor“documentary materials” are protected from search orseizure if they relate to national security or child por-nography. If law enforcement officials violate any provision ofthe act, a news organization may sue and receive dam-ages to cover legal fees and actual injury. The minimumamount that will be awarded is $1,000. Even though the Privacy Protection Act applies tostate searches as well as those conducted by federal au-thorities, at least nine states — California, Connecticut,Illinois, Nebraska, New Jersey, Oregon, Texas, Wash-ington and Wisconsin19 — have laws providing similaror even greater protection. Some states require thatsearch warrants for documents be directed only at partiessuspected of involvement in the commission of a crime,which generally exempts journalists. If law enforcement officials arrive at a newsroom ora reporter’s home with a search warrant, the journalistshould try to delay the search until a lawyer has examined32 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  38. 38. the warrant.20 If the search proceeds, staff photographersor camera operators should record the scene. Althoughstaff members may not impede the law enforcement of-ficials, they are not required to assist the searchers. If you can, consult an attorney immediately after thesearch is over about filing a suit in either state or federalcourt. It is important to move quickly because you maybe able to obtain emergency review by a judge in a mat-ter of hours. If your news organization does not have anattorney, contact the Reporters Committee for assistancein obtaining one.FISA warrants 4  •  CONFIDENTIAL SOURCES AND INFORMATION In 1978, Congress passed the Foreign IntelligenceSurveillance Act (FISA),21 which created a secret spy courtwith powers to issue secret warrants authorizing officialsto perform wiretaps and searches. After the attacks ofSeptember 11, the court’s powers were increased with thepassage of the USA PATRIOT Act. The act expandedseveral categories of information that may be obtainedby the court, and allowed for sharing of information bya broad range of agencies. Proceedings of the FISA courtare conducted in secret, and people investigated underits powers are not aware of the investigation. One concern of the news media is that the FISAcould be used by the government to spy on journalistsand discover their sources. Under the PATRIOT Act,investigators need show only that national security is a“significant purpose” in order to obtain a FISA warrant.And because proceedings of the FISA court are secret,journalists will have no warning that their sources arebeing disclosed. Indeed, a journalist whose source isrevealed in the course of a FISA inquiry may never findout about the breach. The PATRIOT Act also allows government offi-cials to obtain an order from the FISA court permittingthem to gather from any business all books, documentsand other items related to foreign intelligence informa-tion. The court cannot grant such an order for the solepurpose of investigating activities protected by the FirstAmendment. Nevertheless, if a business is subject to sucha search, the business will also be served with a gag orderprohibiting them from talking about it. The U.S. Courtof Appeals in New York (2nd Cir.) held in 2008 that theFirst Amendment requires that a recipient must be al-lowed to appeal the demand and that Congress cannotlimit the evidence allowed in that appeal — rights thatwere not guaranteed in the original legislation.22THE FIRST AMENDMENT HANDBOOK 33
  39. 39. This aspect of the PATRIOT Act appears to applyto newsrooms, which potentially could be subject to asearch, despite the provisions of the Privacy ProtectionAct prohibiting such searches. Indeed, Justice Depart-ment officials have conceded that newspapers might besubject to a court order requiring production of docu-ments.34 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  40. 40. Chapter 5Prior Restraints A prior restraint is an official government restrictionof speech prior to publication. Prior restraints are viewedby the U.S. Supreme Court as “the most serious and theleast tolerable infringement on First Amendment rights,”according to the Court’s 1976 opinion in Nebraska PressAssociation v. Stuart.1 Since 1931, the Court repeatedlyhas found that such attempts to censor the media arepresumed unconstitutional.2 Because the Court found in Nebraska Press that the 5  •  PRIOR RESTRAINTS“barriers to prior restraint remain high and the presump-tion against its use continues intact,” prior restraintorders are rarely upheld. As a result, editorial decisionsabout publication of information the government deemssensitive are generally left solely to the discretion of newsorganizations. One interesting aspect of this area of the law is thatwhile courts have been clear that prior restraints willrarely survive scrutiny even when national security con-cerns are raised, courts seem to be most willing to allowrestraints when the administration of a trial is at issue,or when fair trial rights are implicated.Fair trials In the 1976 landmark case Nebraska Press Associa-tion v. Stuart, the Court addressed the constitutionalityof an order prohibiting the media from publishing orbroadcasting certain information about Erwin CharlesSimants, who was accused of murdering the Henry Kelliefamily in a small Nebraska town. This case pitted the FirstAmendment rights of a free press against the defendant’sSixth Amendment right to a fair trial. To ensure that Simants received a fair trial, the Ne-braska Supreme Court modified the district court’s orderto prohibit reporting of confessions or admissions madeby Simants or facts “strongly implicative” of Simants. On appeal, the U.S. Supreme Court struck down theprior restraint order. The Court emphasized that the useof prior restraint is an “immediate and irreversible sanc-tion” that greatly restricts the First Amendment rightsof the press. “If it can be said that a threat of criminalor civil sanctions after publication ‘chills’ speech, priorTHE FIRST AMENDMENT HANDBOOK 35
  41. 41. restraint ‘freezes’ it at least for the time,” Chief JusticeWarren Burger wrote for the Court. To determine whether the prior restraint order wasjustified, the Court applied a form of the “clear andpresent danger” test, examining whether “the gravityof the ‘evil,’ discounted by its improbability, justifiessuch invasion of free speech as is necessary to avoid thedanger.” In applying this test, the Court articulated athree-part analytical framework, which imposed a heavyburden on the party seeking to restrain the press. First,the Court examined “the nature and extent of the pretrialnews coverage.” Second, the Court considered whetherother less restrictive measures would have alleviated theeffects of pretrial publicity. Finally, the Court consideredthe effectiveness of a restraining order in preventing thethreatened danger. The Court found that the trial judge reasonablyconcluded that the “intense and pervasive pretrial pub-licity” in the Simants case “might reasonably impair thedefendant’s right to a fair trial.” However, the trial judgedid not consider whether other measures short of a priorrestraint order would protect the defendant’s rights. Thetrial judge should have considered changing the locationof the trial, postponing the trial, intensifying screening ofprospective jurors, providing emphatic and clear instruc-tions to jurors about judging the case only on the evidencepresented in the courtroom or sequestering the jury. The Court also found that the effectiveness of thetrial judge’s prior restraint order to protect Simants’ rightto a fair trial was questionable. Because the prior restraintorder is limited to the court’s territorial jurisdiction, itcould not effectively restrain national publications asopposed to publications within the court’s jurisdiction.Moreover, it is difficult for trial judges to draft effectiveprior restraint orders when it is hard “to predict whatinformation will in fact undermine the impartiality of ju-rors.” Finally, because this trial took place in a town of 850people, rumors traveling by word of mouth may be moredamaging to the defendant’s fair-trial rights than printedor broadcasted news accounts. In short, the probabilitythat the defendant’s fair-trial rights would be impairedby pretrial publicity was not shown with “the degree ofcertainty” needed to justify a prior restraint order. Nevertheless, government officials and private indi-viduals occasionally attempt to stop publication. In ToledoBlade Company v. Henry County Court of Common Pleas,3the Ohio Supreme Court reversed a trial court’s orderthat prohibited the media from reporting on one defen-dant’s criminal trial until after the impaneling of a jury36 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  42. 42. in a second defendant’s criminal trial. The trial court hadjustified its order on grounds that the publicity was likelyto prejudice the second defendant’s right to a fair trial.In reversing the trial court’s order, the Ohio SupremeCourt relied on the analytical framework established inNebraska Press Association to conclude that the trial court’sorder was “patently unconstitutional.”National security The Supreme Court has recognized that, theoreti-cally, publication of some information may be restrainedto protect national security. However, when The NewYork Times and Washington Post began publishing thePentagon Papers, a study regarding U.S. involvement inVietnam, and the government tried to stop publication,the Supreme Court refused to uphold prior restraints 5  •  PRIOR RESTRAINTSon the newspapers because the government had failed tomake a sufficient showing of harm to national security.4 A federal district court issued a restraining orderwhen The Progressive threatened to publish an articleexplaining the design of a hydrogen bomb. An appealscourt ultimately dismissed the case after the article ap-peared in another publication.5 Courts have recognized that prior restraints may beimposed where the activity restrained presents a clear andpresent danger or a serious and imminent threat to the ad-ministration of justice.6 In the earliest incarnation of the“clear and present danger” test, Justice Oliver WendellHolmes stated that expression could be punished when“the words used are used in such circumstances and are ofsuch a nature as to create a clear and present danger thatthey will bring about the substantive evils that Congresshas a right to prevent.”7 The “clear and present danger” test subsequentlyevolved in Brandenburg v. Ohio.8 In that case, the SupremeCourt held that the advocacy of force or criminal activitymay not be penalized unless such advocacy is directedto inciting or producing imminent lawless action and islikely to incite or produce such action. In 1996, the U.S. Court of Appeals in Washington,D.C., upheld a policy that requires employees of the StateDepartment, the U.S. Information Agency and the Agencyfor International Development to submit for prepublica-tion review articles, speeches and teaching materials thatdiscuss those agencies or U.S. foreign policy matters. Adivided three-judge appellate panel held that because thepolicy requires only agency review and not agency consent,it is not an unconstitutional restriction on speech.9THE FIRST AMENDMENT HANDBOOK 37
  43. 43. Law enforcement investigations Law enforcement officials often tell reporters not topublish certain information about crimes — for example,the names of victims or witnesses, or the place wherethe crime occurred. Reporters should be skeptical aboutadmonitions not to publish, particularly when such of-ficials have made the information readily available.10 Un-less these restrictions are authorized by a judge who hasfound a “clear and present danger” to the administrationof justice, officials cannot order reporters not to publishlawfully obtained information. The decision to publishin such contexts is a matter of ethical considerations, notlegal restraints.Privacy Private individuals occasionally try to convince re-porters to refrain from publishing information that mightbe embarrassing. Sometimes these people have soughtcourt orders barring publication, though they are typi-cally unsuccessful. In one celebrated case, Frank Sinatrasought a restraining order to stop author Kitty Kelley fromconducting interviews and publishing her “unauthorized”biography of him. He later withdrew his lawsuit.11 Generally, courts are reluctant to issue prior restraintorders, particularly when the justification for them ismerely that the material might be libelous or invadesomeone’s privacy.12 In December 1994, the U.S. DistrictCourt in New York City lifted a temporary restrainingorder issued two days earlier and denied a request byPaula Jones, who had accused President Bill Clinton ofsexual harassment, for a preliminary injunction againstPenthouse magazine, which printed nude pictures of herin its January 1995 issue. The court ruled that the photo-graphs had a relationship to an editorial questioning hercredibility, and that the matter was in the public interest.13 The unauthorized publication of sexually explicit im-ages has resulted in a significant amount of litigation. In1998, a U.S. District Court in California issued a prelimi-nary injunction prohibiting the publication, distributionor other dissemination of a sexually explicit videotapeof entertainers Pamela Anderson and Brett Michaels onmultiple grounds, including both copyright and privacytheories.14 In contrast, the U.S. Circuit Court for theSixth Circuit stayed a U.S. District Court’s injunctionprohibiting a website’s publication of nude images of anews reporter. The unpublished decision by the SixthCircuit stated that the injunction was a prior restraintunlikely to survive constitutional analysis.1538 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  44. 44. Information in the public sphere To the extent information is revealed in open court,it cannot be censored. For example, if jurors are identi-fied in open jury selection proceedings, the court cannotrestrain the press from publishing the identity of jurorsbecause such information is part of the public record.16 In Arkansas Democrat-Gazette v. Zimmerman, theArkansas Supreme Court held that an order prohibitingpublication or distribution of the names or pictures ofa juvenile defendant, the victim, and their families wasan overbroad prior restraint of the press in violation ofthe First Amendment. Two critical factors influencedthe court’s decision. First, the juvenile proceedings wereopen to the public and the media. Second, the identity ofthe parties was already in the public domain prior to thejudge’s order. As a result, these factors outweighed the 5  •  PRIOR RESTRAINTSstate’s interest in confidentiality of the parties. While thejudge could prohibit photographs in areas adjacent to thecourtroom, she could not prohibit photographs outsidethe courthouse, including public streets and sidewalks.17 In Freedom Communications, Inc. v. Superior Court18,the California Court of Appeals overturned a trial courtorder that prohibited the Orange County Register fromreporting on witness testimony in a case in which thenewspaper was a party. The appellate court determinedthat the trial court’s order was an unjustified prior re-straint under both the First Amendment and the Cali-fornia Constitution. More recently, another CaliforniaCourt of Appeals reached a similar conclusion in anunpublished decision in Los Angeles Times Communications,LLC v. Superior Court.19 The appellate court overturned,as an invalid prior restraint, the trial court’s order prohib-iting the publication of in-court photographs of a criminaldefendant that had been taken with the court’s consent.Corporate information Corporations sometimes attempt to restrain publica-tion of information about their activities. Businesses have been able to secure injunctions toprotect trade secrets, although courts usually requirethat there be some special relationship between thecompany seeking the injunction and the party beingenjoined. However, courts repeatedly have ruled that acorporation’s mere assertion that publication will put itat a competitive disadvantage is inadequate to overcomethe heavy presumption against prior restraints. For example, in 1994, Supreme Court Justice HarryA. Blackmun stayed an order that prevented the news pro-THE FIRST AMENDMENT HANDBOOK 39
  45. 45. gram “48 Hours” from airing the tape of a meatpackingplant it obtained from an employee who wore a hiddencamera during his work shift. Justice Blackmun, acting asCircuit Justice for the U.S. Court of Appeals (8th Cir.),wrote that restraining orders on the media are permit-ted only in exceptional cases where “the evil that wouldresult is both great and certain and cannot be militated byless intrusive measures.” In this case, the argument thatthe broadcast could result in significant financial harmto the company was too speculative to support a priorrestraint. The appropriate remedy would be a subsequentsuit for civil or criminal damages, not a prior restraint,he concluded.20 In a more recent example, the New Hampshire Su-preme Court reversed a trial court’s order that prohibiteda website operator from republishing material relatedto a chart purportedly containing a mortgage lender’sconfidential loan information.21 The court ruled that thetrial court’s order was an invalid prior restraint becausethe business’ privacy and reputation concerns did notjustify the “extraordinary remedy” of a prior restraint. With varying outcomes, trial courts have also on oc-casion issued prior restraints to prohibit the publicationof information contained in sealed court records thatfalls into the hands of reporters. An Indiana appellatecourt in 1995 upheld a trial court’s order prohibiting anewspaper from publishing judicial records about a third-party business that were supposed to be sealed, but thata reporter had obtained from the court. The appellatecourt agreed with the trial court’s reasoning that suchan order was necessary to “preserve the integrity of thejudicial system.”22 In contrast, the U.S. Court of Appeals in Cincinnati(6th Cir.) overturned orders by an Ohio U.S. DistrictCourt prohibiting Business Week magazine from publish-ing information from sealed pretrial discovery documentscontaining business information, which it had receivedfrom an attorney at a law firm involved in the case. TheSixth Circuit ruled that the factual evidence did not justifycensoring the news media. The court held that the trialcourt failed to make any of the requisite findings that ir-reparable harm to a “critical government interest” wouldoccur if publication was not stopped. Moreover, althoughtemporary restraining orders can be used in many situ-ations to maintain the “status quo” of a case, the courtexplained, the status quo for the media is to publish newspromptly.23 More recently, a District of Columbia SuperiorCourt withdrew its order prohibiting The National Law40 THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
  46. 46. Journal from publishing information about the juicecompany POM Wonderful that was supposed to besealed, but that a reporter had obtained from the courtfile. After The National Law Journal appealed the order,the company withdrew its request for the prior restraintand the court removed the order.24Statutory restraints Some states have statutes that make it a crime to pub-lish the names of rape victims. Journalists who break theselaws are theoretically subject to fines and jail sentences.25 However, a Florida statute making it a misdemeanorfor the media to identify alleged sexual assault victims vio-lates the federal and Florida constitutions, the SupremeCourt of Florida unanimously held in December 1994. 5  •  PRIOR RESTRAINTSThe Florida Legislature may not impose automatic liabil-ity for publishing lawfully obtained, truthful informationabout matters of public concern, the court ruled.26 Similarly, an Alabama state judge overturned theconviction and sentence of two television newscasterswho were accused of violating a state law that prohibitsdisclosure of information contained in juvenile recordsafter the station broadcast the identity of a juvenilesuspect. The judge said that because the juvenile waspreviously identified in a public forum, it was not illegalfor the station to subsequently broadcast his identity.27Likewise, the Georgia Supreme Court found a statuteprohibiting the news media or other persons from namingor identifying rape victims unconstitutional.28 However, the South Carolina Supreme Court heldthat a statute that prohibits the publication of rape vic-tims’ names was not unconstitutional on its face.29 Although the U.S. Supreme Court has not held thatthese statutes are unconstitutional as written, it has ruledthat states cannot punish journalists for publishing truth-ful information they have obtained from public recordsor official proceedings.30 In another case, the U.S. Supreme Court refused topermit a newspaper to be held liable for publication ofthe name of a rape victim that was inadvertently releasedby a police department.31 A 2004 ruling by the Colorado Supreme Court ina sexual assault case against Kobe Bryant has receivedsignificant attention. In People v. Bryant,32 the court up-held a trial court’s order prohibiting media organizationsfrom publishing inadvertently released transcripts frompre-trial hearings that, pursuant to Colorado’s rape shieldTHE FIRST AMENDMENT HANDBOOK 41

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