COM 365/665: Journalists,
the Courts, and the Law
Ron Bishop, Ph.D.
Department of Culture and Communication
Drexel University
Covering Criminal Cases
Criminal cases are to most folks more newsworthy than civil
cases.
Actions offend our sense of justice.
Steps in the process are typically secret.
District Attorneys, Attorneys General, U.S. Attorneys – the
key people.
First Judicial District of Pennsylvania
Covering Criminal Cases
Three main segments of a case:
Pretrial
Trial
Post-Trial
Covering Criminal Cases
Pretrial:
Arraignment
Preliminary Hearing
Grand Jury Action
Jury Selection
Covering Criminal Cases
Trial:
Opening statements
Prosecution: Direct examination
Prosecution: Cross examination
Prosecution: Re-direct examination
Motions
Rebuttal
Covering Criminal Cases
Direct examination (Defense)
Cross examination (Defense)
Re-direct examination (Defense)
Motions
Rebuttal
Summations/Closing arguments
Charge
Deliberation
Verdict
Covering Criminal Cases
Any point in the proceedings can be the basis for a solid story.
Writing at any point, you should include:
Charge(s)
Complete ID of defendant.
Circumstances surrounding the act(s).
Summary of previous developments.
Sense of what’s next.
And don’t forget your “allegedly.”
Covering Criminal Cases
It all begins with an arrest. In this story, include:
Formal charge(s)
The plea (guilty? Not guilty? Not guilty by reason of mental
defect or insanity?)
Bail (higher or lower than requested?)
ROR?
Behavior of attorneys, defendants, judge.
Compelling remarks.
Jared Loughner Indictment
Jared Loughner Indictment
Charges Against Jared Loughner
Criminal Case Coverage
Examples
Yeardley Love – Expert Testimony
Yeardley Love – Online Only
Settlement Talks Before BP Trial (NYT)
Crane Owners Criminal Trial to Start (WP)
Freedom of Information Act
Enacted in 1966; signed into law by President Johnson.
Each state has its own law.
Covers only federal or state agencies.
Purpose: to put into practice a philosophy of fullest possible
disclosure of government records.
Each administration has its own take on that: for Ashcroft,
the “sound legal basis” take.
Freedom of Information Act
Between the late 1700s and mid-1960s, access to records kept
by federal government unsettled.
No guidance from common law or U.S. Constitution.
Early 1950s: a push for access laws.
Reporters had little recourse when requests for information
were denied.
Freedom of Information Act
704,394 FOIA requests filed in 2013, up from 651,254 in
2012.
237,682 requests filled entirely; 203,295 filled partially. in
2013.
41,380 requests denied.
Backlog is increasing: 95,564 in 2013, 71,790 in 2012. Had
dropped from 83,490 in 2011.
DOJ oversees agency compliance; OMB handles the fee
guidelines.
Freedom of Information Act
Freedom of Information Act
FOIA gives us access to records kept by federal agencies.
Doesn’t cover records held by Congress or the courts. They
have their own mechanisms.
Some executive branch agencies also fall outside the law.
And what’s a “record” anyway?
Reasons for denial must be explained.
Freedom of Information Act
Types of information exempt from disclosure:
National security
“Housekeeping” materials
Material exempted by statute
Trade secrets
“Working papers”
Personnel and medical files
Law enforcement records
Financial regulatory reports
Geological data
Freedom of Information Act
Agency has 20 business days to respond.
You can ask for expedited review (10 days).
You can appeal a denial; response must come within 20 business
days.
Types of requesters: commercial, educational/news media, other.
Can get a fee waiver if you prove release of info is in the public
interest and isn’t in your commercial interest.
Doctrine of segregability: after they exempt some parts of document,
have to give you what’s left.
Freedom of Information Act
Freedom of Information Act
Freedom of Information Act
Freedom of Information Act
Works in tandem with Privacy Act of 1974, which prevents
government from disclosing info from its files by name.
Act also allows us to gain access, challenge, or correct info held
about us.
OPEN Act becomes law in 2007; clarifies deadlines for responses,
imposes penalties for missed deadlines.
Obama in 2009 orders agencies to adopt “presumption of
disclosure” (Reno) standard.
Fine, but how about transparency about interrogation, Gitmo,
Bush’s energy plan, warrantless wiretapping, free rein given to
banks by the SEC?
Freedom of Information Act
Kissinger v. Reporters Committee (1980): Just because they
moved his records to State after he ended his time as NSA
doesn’t mean they were “records.”
FBI v. Abramson (1982): Summaries of Nixon’s “enemies list”
are exempt, even though summaries weren’t compiled for law
enforcement purposes.
Freedom of Information Act
More recently…
The News Press et al. v. U.S. Dept. of Homeland Security et al. (2007):
Appeals court rules FEMA must release to FL newspapers the
names and addresses of 1.3 million recipients of federal
hurricane relief and insurance money.
A “powerful public interest” in seeing how well FEMA did its
job gearing up for four 2004 hurricanes; outweighs privacy
interest of recipients.
Freedom of Information Act
Lawyers Committee for Civil Rights of the SF Bay Area v. U.S.
Department of Treasury (2009): Treasury ordered by federal
judge to disclose petitions asking to remove names from list
of suspicious people maintained by Office of Foreign Assets
Control.
OFAC decided there was nothing that could be released – a
“categorical exclusion.”
Open Meetings Laws
All states have ‘em; range from the very good (FL, TN) to
the nearly useless (PA).
These and federal Government in the Sunshine Act (1976)
require officials to meet in public.
Doesn’t always mean you can speak, but you can attend –
and you have to have notice.
Common law, Constitution once again largely silent on the
matter.
Open Meetings Laws
These are clear statements by legislatures that their actions
and deliberations should be out in the open.
If a provision in a statute is vague, assumption is to grant
access.
Laws declare either that all meetings are open, or list the
agencies that must hold open meetings.
The U.S. Congress is excluded, as are advisory bodies, just as
in FOIA.
Open Meetings Laws
…unless you’re talking a special interest advisory committee;
these are regulated by the Federal Advisory Committee Act.
FACA limits the creation of advisory committees to only
those deemed essential.
Limits how long they can exist, dictates they only can give
advice to executive branch folks.
Puts an end to “locker room discussions” by task forces,
subcommittees, and working groups (Oh my!); requires
committees act in public.
Open Meetings Laws
As with FOIA and state FOI laws, there are exceptions built
into OMLs.
Federal law: national security, trade secrets, personal
information, law enforcement records, financial information,
regulatory information, ongoing litigation.
In DE: Criminal investigations; employee evaluations;
attorney-client discussions; collective bargaining; real estate
transactions; student disciplinary hearings; and attorneyclient meetings.
Open Meetings Laws
Laws should specify how many officials have to be there.
Deliberative stages of decision-making are meetings, and
should be open.
Social gatherings and chance encounters are NOT meetings.
BOTTOM LINE: If public business is discussed, it must be
open to the public.
Open Meetings Laws
OMLs do allow officials to go into executive or emergency
session.
Can’t usually take final action, though.
Must tell you why they need to go into ES.
Citizens, reporters can object.
Never leave a meeting voluntarily!
The punishments for an OML violation aren’t that severe.
Open Meetings Laws
In many states, if officials take an action at an improperly
conducted meeting, it becomes null and void.
But boy, do they try…
So a NY federal judge can’t hear a plea and issue a sentence
in a drug case in her robing room, for example (U.S. v.
Alcantara, 2nd Circuit, 2005).
We can’t “leave the vindication of a First Amendment right
to the fortuitous presence in the courtroom of a public
spirited citizen willing to complain about the closure,” the
court said.
Open Meetings Laws
Common Cause v. NRC (1982): The NRC closed two 1981
meetings on its annual budget. Had said they would be open
to the public.
Cited Exemption 9 of Sunshine Act, which allows closure to
prevent frustration of an agency action.
District court rules for CC; NRC hadn’t established a
“reasonable likelihood of any harm to future agency
actions.”
Open Meetings Laws
DC Circuit affirms; NRC didn’t meet its burden of showing
the meetings were lawfully closed.
Sunshine Act doesn’t exempt all budget discussions, but
specific items could trigger the exemption.
What You’re Playing For…
Free Press/Fair Trial
Assume publicity means biased juries.
Yet our recall is limited.
Most trial judges don’t see big problems.
Free Press/Fair Trial
What does it mean to be impartial?
Free from dominant knowledge acquired outside the courtroom
(U.S. v. Burr, 1807).
Not totally ignorant of facts and issues (Murphy v. FL, 1975).
Not having a fixed opinion that would prevent an impartial
judgment (Patton v. Yount, 1984).
Free Press/Fair Trial
You can serve on a jury and have opinions if:
Those opinions aren’t so closely held that they can’t be put
aside.
Publicity surrounding the case is not so widespread that it
makes your assurances unbelievable.
Free Press/Fair Trial
So what can a judge do?
Voir dire
Change of venue
Continuance
Admonition
Sequestration
Gag orders
Sealing records
Free Press/Fair Trial
Usually, these cases involve stories about:
Confessions
Polygraph Tests
Past Criminal Record
Questioning Witness Credibility
Defendant’s Character
The Public Mood is Inflamed
Some Cases to Consider…
Irvin v. Dowd (1961): Defendant can’t get fair trial where
there’s a “pattern of deep and bitter prejudice” in the
community.
Estes v. Texas (1965): TV equipment created too many
impediments to a fair trial.
Sheppard v. Maxwell (1966): Trial judge’s responsibility to
ensure a defendant’s 6A rights aren’t damaged by publicity.
Some Cases to Consider…
Nebraska Press Assn v. Stuart (1976): Court develops three-part
test to evaluate restrictive orders by judges.
Belo Broadcasting v. Clark (1981): Fifth Circuit rules the right to
inspect and copy judicial documents is not absolute.
Publicker Industries v. Cohen (1984): Civil trials, like criminal
trials, must be open to the public, the Third Circuit finds.
Some Cases to Consider…
Press-Enterprise v. Riverside Superior Court (1986): Can close a
preliminary hearing only if there is a “substantial
probability” that 6a right will be prejudiced by publicity.
Washington Post Co. v. Hughes (1991): Fourth Circuit rules that
through voir dire, court can identify jurors whose prior
knowledge would prejudice their ability to render fair verdict.
The Right To Be Left Alone
“An American has no sense of privacy. He does
not know what it means, There is no such thing
in the country.”
- George Bernard Shaw
The Right To Be Left Alone
Is privacy dead?
We seem conflicted.
A relatively new concept – don’t see it until end of the 19th
Century.
We tend to blame the press, but business and government do
the most damage.
19th Century newspapers helped teach us to vicariously seek
status.
The Right To Be Left Alone
Are we all “public people” to some degree?
Part of life in a civilized country?
Do we ever want to be truly left alone?
Do we know what it means to not be thinking about privacy?
Along Come Brandeis and
Warren…
The starting point for a national discussion.
Lashed out at the press.
“…instantaneous photographs and newspaper enterprise have
invaded the sacred precincts of private and domestic life.”
A person’s home is his or her castle.
We should be able to go to court to stop unwarranted intrusions.
1928: Brandeis alone in saying government needs a warrant to
conduct a wiretap.
Along Come Brandeis and
Warren…
Message didn’t take right away.
Took until the McCarthy Era to get us thinking about
excesses in government information gathering.
Turns out our officials were acting just like the Communists
after all.
Concept accepted slowly – some states still don’t recognize
the tort.
Others have rejected one or more of the…
Four Privacy Torts
Appropriation
Intrusion
Publication of Private Facts
False Light Publication
Appropriation
Can’t appropriate someone’s name or likeness – or sound –
for commercial purposes without consent.
The right to privacy, the right to publicity.
There’s a news exception…
The “incidental use” rule.
Can’t go after parody either – even if an artist takes pictures
of Barbie posed naked in a blender, wrapped in a tortilla, and
sizzling on a wok (Mattel v. Walking Mountain Prods., 9th
Cir., 2003).
Intrusion
Can’t intrude upon someone’s solitude.
Think wiretapping, paparazzi, telephoto lenses.
All you have to do is collect the information.
The key phrase: “reasonable expectation of privacy.”
Publication of Private Facts
Can’t run private information about a person if it would be
highly offensive to a reasonable person…
…and is not of legitimate public concern.
Not endorsed/recognized in some states (NC, for example).
Plaintiffs rarely win.
Wouldn’t be missed, say some scholars.
Publication of Private Facts
Must be newsworthy.
Plaintiff must prove:
Publicity about private facts.
It’s offensive to a reasonable person
And not of legitimate public concern.
Information in public records doesn’t count.
A Public Place…
False Light Publication
Creates a false or erroneous impression of someone.
Has to offend; have to prove fault.
Lots of disagreement here.
Have to prove:
Facts are substantially false.
Allegations are offensive.
Defendant was at fault
False Light Publication
Minor errors by journalists don’t cut it.
Yet most FL suits are based on errors, editing mistakes.
Don’t use unrelated photos.
And always get a signed release (unless it’s a timely news
event).
Some Cases to Consider…
Bartnicki v. Vopper (2001): High Court says removing incentive
for parties to intercept private conversations doesn’t justify
applying law to innocent disclosure of information…
Smith v. Daily Mail Publishing Co. (1979). High Court finds
you can’t punish truthful publication of a juvenile’s name
when the information was lawfully obtained.
Some Cases to Consider…
Cox Broadcasting Co. v. Cohn (1975): Justices rule barring
publication simply because it might offend a “reasonable
person” would make it too hard for the media to inform.
Virgil v. Time, Inc. (9th Circuit, 1975): The line between private
and public information is drawn when publicity changes
from furnishing information to “morbid and sensational
prying.”
Some More Cases to Consider…
Cantrell v. Forest City Publishing (1974): But if you know what
you’ve published is untrue, as here – that’s reckless disregard.
Booth v. Curtis Publishing (NY, 1962): Use of your name or
likeness in an ad for a publication is not appropriation if it
was originally part of the information content.
Some More Cases to Consider…
Time, Inc. v. Hill (1967): Information seen in the media is not
there for trade purposes, the High Court rules. Can’t use
NY’s privacy law to recover for false reports of newsworthy
matters absent reckless disregard.
Dietemann v. Time, Inc. (1971): CA court finds a homeowner
shouldn’t have to risk that what happens in the home will be
recorded and disseminated. BUT you can’t make a case for
intrusion if you were acting in your official capacity.
Some More Cases to Consider…
Duncan v. WJLA-TV (1984): FL court reinforces idea that you
shouldn’t use an unrelated photo or footage to make a point
in your story.
People’s Bank and Trust Co. v. Globe International (1992):
Arkansas court reminds us to not use photos of real alive
people when writing about someone else.
Some More Cases to Consider…
Desnick v. ABC, Inc. (1993): Newsgathering methods might be
distasteful, but they are “entitled to all the safeguards with
which the Supreme Court has surrounded liability for
defamation.”
Doe v. New York (2nd Circuit, 1994): Information found in
public records is not private – publishing it can’t sustain a
private facts claim.
Some More Cases to Consider…
Food Lion, Inc. v. Capital Cities/ABC (1996): You don’t have to
claim intrusion to win.
Reeves v. Fox Television Network (1997): The arrest of a man
featured on “COPS” was a matter of public concern and thus
not a privacy violation.
Shulman v. Group W Productions (1998): A conversation taped
when you’re being extricated from a car after an accident is
an intrusion, CA Supreme Court finds.
One Last Case to Consider…
Campus Communications v. Earnhardt (2003): Newspapers
drop challenge to new state law restricting access to autopsy
photos.
Earnhardt Family Protection Act requires autopsy photos, video
and audio recordings be kept confidential.
The Post-Tinker Era
Remember these words: order and disruption.
Tinker v. Des Moines School District (1969): students don’t leave their
right to free expression “at the schoolhouse gate” – or metal
detector.
So long as they don’t interfere with the “requirements of
appropriate discipline in the operation of the school” or “collide
with the rights of others.”
Hazelwood SD v. Kuhlmeier (1988): Well, turns out you can censor a
HS newspaper for publishing controversial articles so long as you
are acting on “legitimate pedagogical concerns.”
Where the hell was the press when the Court ruled?
The Post-Tinker Era
Kincaid v. Gibson (2000): 6th Circuit offers hope; can’t seize
college yearbooks just because you don’t like the content and
color of the cover. Yearbook is a limited public forum – only
valid TPM rulings allowed.
Dean v. Utica Community Schools (2004): School paper again
called a limited public forum. There was no policy of prepub review, no regulation of subjects by advisor. Can’t censor
because you have a differing opinion.
The Post-Tinker Era
Bethel SD 403 v. Fraser (1986): Hold on thar! Court rules
lewdness, vulgarity, offensiveness isn’t protected. We need to
protect you from that fucking stuff.
Johnson v. New Brighton Area SD (2008): “If I were Osama, I
would already have pulled a Columbine” is not protected
speech. Wasn’t pure speech, as in Tinker. Officials acted on
what they reasonably thought was a disruption…they were
fighting words!
Morse v. Frederick (2004): The quality of an argument does
matter, the Court rules. Can’t promote drug use and try to
gain publicity while doing so! A school environment has
“special characteristics.”
And What About College?
Capeheart v. Hahs (2012): Seventh Circuit will soon rule on
whether faculty members lose their ability to speak freely
when they are employees of public universities.
Professors and instructors play a unique role in advancing
knowledge – a “transcendent value” – not just for folks in
classroom, but for everyone.
If the Seventh Circuit upholds lower court, professors will
risk their careers if they speak out. The Court’s decision in
Garcetti just doesn’t apply, Capeheart argues.
To Sue or Not to Sue…
In the 1980s through the early 90s, media was swamped by
libel suits.
In 1996, the successful defense rate was 28.5 percent.
Plaintiffs felt emboldened.
At that time, the median award was $2.38 million – the
highest ever. Now about $3.4 million.
A huge cost involved in defending a suit.
To Sue or Not to Sue…
Suits are less frequent.
News organizations winning more often.
Defendants win, or have a verdict overturned on appeal
about 80 percent of the time.
Number of trials has dropped.
Media’s success against public figures has increased.
To Sue or Not to Sue…
Not ready to pop the champagne, though.
Huge awards are still damaging to media companies,
especially small ones.
Former McClennan County (TX) DA Vic Feazell won $58
million in 1991 against WFAA-TV. Station accused him of
taking bribes to settle drunk-driving cases.
Broke previous record of $34 million in suit by former Philly
ADA Richard Sprague against PNI. Reporter had been
prosecuted by Sprague for illegal wiretapping and vowed to
“get” Sprague.
To Sue or Not to Sue…
In 1997, federal jury awards a defunct bond brokerage firm
$222.7 million ($200 in punitives; $22.7 million in
compensatories). Articles in WSJ claimed firm defrauded LA
State Employees Pension Fund.
Several statements were false, but judge tossed out punitive
damages, saying there was no evidence of actual malice in
the WSJ’s reporting. Let compensatory damages stand.
What is Libel?
Publication or broadcast of a statement that injures someone’s
reputation, or that lowers that person’s esteem in the community.
To Sue or Not to Sue…
Folks on juries are getting tougher on personal injury
plaintiffs.
We may be beginning to question the huge damage awards.
Cost is passed on in form of higher insurance rates.
Libel: The Basics
Defamation: any communication that holds a person up to
contempt, hatred, ridicule, or scorn.
How Do I Win?
Libel was published.
Publication was about the plaintiff.
Material was defamatory.
Material was false.
Defendant was at fault.