COM 365/665: Journalists,
the Courts, and the Law
Ron Bishop, Ph.D.
Department of Communication
Drexel University
Tendencies in Current Coverage
The “Crime of the Century” tendency, not to be confused
with the “Trial of the Century” tendency.
Blowing procedural happenings way out of proportion.
“Parachuting” in to cover a trial as opposed to regular
courthouse coverage.
Turning every confirmation hearing into a political litmus
test based on someone’s paper trail.
Tendencies in Current Coverage
Stoking the “originalist v. living document” fight over the
U.S. Constitution.
Focusing on the deep pockets and huge verdicts.
Making it seem we’re super-litigious.
Ignoring cases that can’t be made sensational.
And then there’s Nancy Grace…
Tendencies in Current Coverage
Tendencies in Current Coverage
The U.S. Legal System
Predictable and orderly
A contest of adversaries
Operates hierarchically
The most compelling search is the search for authority.
Procedure is crucial, often decisive.
Precedent controls
Ideas from outside the law find their way in.
Suits are self-contained.
Conflicting Philosophies
The journalist can’t always take time to get to know subject
before writing.
The lawyer won’t risk letting the journalist draw quick conclusions.
The journalist often tells a story by moving from most
significant to least significant – and by, well, telling a story.
The lawyer builds a case the other way around.
Conflicting Philosophies
The journalist wants to have immediate impact on the
audience.
The lawyer wants a well thought-out decision from the courts, one that
usually comes after a significant chunk of time.
The journalist looks for the novel.
The lawyer builds a case on the familiar.
The journalist is fascinated by the illogical.
The lawyer tempers emotions with logic.
Thoughts on Covering Courts
It’s a game, with both sides doing all they can to win.
Don’t be thrown by the symbolism, the grandeur, the robes.
Never put faith in a lawyer until you know him or her well.
A judge’s word may be law, but it’s not gospel.
Truth and justice do not always prevail.
Thoughts on Covering Courts
Two main sources: records and people.
Learn the language, follow the process, chart the cases, talk
to attorneys, check earlier coverage.
Watch out for the media-savvy, politically ambitious
attorneys and image-obsessed judges.
ALWAYS get to know bailiffs, marshals, clerks, and
secretaries.
It’s Public Property
In Craig v. Harney (1947), the Supreme Court says what
happens in court is public property.
Courts can’t censor or edit what goes on in cases brought
before them.
No limit on the reporter’s obligation to uncover and report
on what’s going on, whether the case is closed or open.
Recognize, though, that there are limits: family court cases,
for example, or some civil cases.
Criminal cases are always our business – usually revolve
around a violation of a law designed to protect us.
The Judicial System
52, actually. Federal, state, municipal/local.
13 U.S. Courts of Appeal, 94 federal district courts.
Case movement: usually trial, then appellate.
Courts interpret the law (legislatures make it, executive
branch enforces it).
On appeal, no new facts are gathered.
Terms to know: affirms, overturns, remands, removes
Civil v. Criminal
Civil actions are initiated by an individual, often against
another individual or organization for damages.
Criminal actions are brought by the government on our
behalf (“the people”) for violation of a criminal statute.
One State’s Court Structure
And Another’s (Georgia)…
Closer to home…
Our Federal Courts
Our Federal Courts
Telling the Players…
Captions and Citations
Gitlow v. New York, 268 U.S. 652 (1925)
Parts of an Opinion
Author (the judge)
Facts of the Case
Law of the Case
Disposition (decision)
Concurring/dissenting opinions
Look for the following…
A careful understanding of the facts.
An understanding of the arguments.
An understanding of the result and reasoning
Possible impact of the decision.
What’s a Docket?
At the High Court…
Textualism: If the Constitution didn’t explicitly create a right,
it doesn’t exist; its meaning was set for all time when it was
created.
Originalism: The Constitution has to be interpreted as they
were understood by the Framers
Unenumerated Rights: Even if a right didn’t appear, judges can
draw on implications of Constitutional provisions, prior
decisions, and our evolution as a society to expand our
liberties.
At the High Court…
“If we cannot share every intellectual assumption that
formed the minds of those who framed the charter, we can
still address the constitutional uncertainties the way they
must have envisioned, but relying on reason, respecting all
the words the Framers wrote, by facing facts, and by seeking
to understand their meaning for living people.”
- Former Supreme Court Justice David Souter
Basics of a Civil Case
Plaintiff selects correct jurisdiction.
Files a complaint which includes claims and damages sought.
Defendant served with summons; has to answer by set
deadline.
Depositions are taken.
Pre-trial conference held.
At trial, arguments heard from both sides.
Judge instructs the jury.
Basics of a Civil Case
Jury deliberates, returns with a verdict.
Judge enters a judgment.
Appeal follows if one side isn’t happy.
My Civil Case Story
Who sued; who’s being sued; when the suit was filed.
All the parties to the suit.
What caused the plaintiff to sue?
Explanation of damages sought.
Brief look at precedent; could this case lead to a landmark
decision?
Defendant’s answer (if filed).
Possibility of settlement?
Trial date set?
My Civil Case Story
Attribute carefully: “According to the complaint filed by Dr.
Zachary Smith, the Jupiter 2’s crew was a rowdy, inefficient
bunch…”
Comments from attorneys to explain their filings; include
name/location of firm, firm specialty.
Keep the legal-speak and chronology to a minimum; quote
carefully from documents.
How has court/judge ruled on cases like this in the past?
Complaint Story
Members of a Phoenix family critically injured May 10 by a
natural gas explosion in their apartment have filed a $92 million
suit in Maricopa County Superior Court.
Georgia Crawley filed suit May 20, claiming the explosion that
ripped through her apartment a 6565 N. 17th Street was caused
by a deteriorating gas delivery line. She contends Arizona
Public Service Co. knew about the problem, but failed to correct
it.
Motion to Dismiss Story
The nation’s largest snow globe maker Monday moved to
dismiss a $15 million lawsuit by a former engineer who claims
he was fired in 2008 because he was too old.
The attorney for BriCol, Inc., Susan Whitehall, argued in
documents filed in Philadelphia federal court that Nick Sullivan
was fired for subpar performance, not because of his age.
Motion to Dismiss Story
Sullivan claims a BriCol executive told him he did not fit the
young, aggressive image the company is cultivating. Sullivan,
60, was replaced by Ernest Allen, 28.
In his complaint, filed December 28, Sullivan argues his
termination violated the federal Age Discrimination in
Employment Act (ADEA).
Whitehall said in an interview on Tuesday that Sullivan was
fired “because his performance had deteriorated steadily.”
Test Your Knowledge…
What are the five freedoms guaranteed in the First
Amendment to the U.S. Constitution?
The Five Freedoms…
“Congress shall make no law respecting the establishment of
religion, or prohibiting the free exercise thereof, or abridging
the freedom of speech, or the press, or the right of the people
peaceably to assemble, and to petition the government for
redress of grievances.”
The First Amendment
Not absolute; often misapplied.
Even hateful speech is protected (Snyder v. Phelps).
We are (generally) free to bloviate around the country.
Most of us believe in pretty much unfettered free speech.
The First Amendment is evolving, with the courts playing a
key role.
The First Amendment
Have to ask ourselves:
How unregulated a country do we really want?
Where’s the line between liberty and order?
Is the demand for “no law” absolute?
They Call Me Mr. Zenger…
The First Amendment
Framers didn’t define “freedom.”
No instruction manual – not that we’d read it.
Just got a “sweeping command.”
And how could the Framers have guessed we’d invent TMZ.com?
Congress left it alone until passing the Espionage Act in 1918.
Crime to “utter, print, write, or publish any disloyal, profane,
scurrilous, or abusive language” about Constitution, military, the
flag.
The First Amendment
First Amendment claim not endorsed until 1919.
Until then, Supreme Court treated First Amendment as
unimportant.
If speech offended anyone, could ban it.
Patterson v. Colorado (1907):
Upheld ban on speech “contrary to public welfare.”
When the Court Dives In…
Schenck v. U.S. (1919)
Clear and present danger test is born.
Abrams v. U.S. (1919)
“Poor and puny anonymities”
Gitlow v. New York (1925)
14th Amendment applies 1st Amendment to the states
Whitney v. California (1927)
Brandeis’ brilliant dissent
Holmes’ dissent in Abrams
“The surreptitious publishing of a silly leaflet by an
unknown man” didn’t present danger.
Publishing the “poor and puny anonymities” protected.
Even if the leaflets were unlawful, only a “nominal”
punishment is called for, unless “men were being punished
for their views.”
They might be ignorant and immature, but can’t go after
them for their opinions.
Holmes’ dissent in Abrams
“The ultimate good desired is better reached by the free trade
in ideas – that the best test of truth is the power of the
thought to get itself accepted in the competition of the free
market…”
“We should be eternally vigilant against attempts to check
the expression of opinions that we loathe and believe to be
fraught with death…”
Holmes in Whitney
“…freedom to think as you will and to speak as you think are
means indispensable to the discovery and spread of political
truth…”
Framers, “believing in the power of reason as applied
through public discussion, they eschewed silence coerced by
law – the argument of force in its worst form.”
Or as Brandeis saw it…
“If there be time to expose through discussion the falsehood
and fallacies, to avert the evil by the process of education, the
remedy to be applied is more speech, not enforced silence.”
Patterson v. Colorado (1907)
Editor runs articles and a cartoon critical of state supreme
court judge.
Alleges corruption as part of a scheme to seat GOP officials.
Said it was his public duty.
Holmes writes for the Court that the main purpose of 1A is
to prevent prior restraint.
First Amendment Approaches
Absolutist
Ad Hoc Balancing
Preferred Position Balancing
Meiklejohnian
Access
Near v. Minnesota (1931)
1925: MN passes Public Nuisance Law. Court could close
newspaper if its efforts were malicious, scandalous,
defamatory.
Paper would have to show it published the truth – and with
“good motives and for justifiable ends.”
Not much of a truth defense…
Courts could look at publisher’s character.
Near v. Minnesota
Near v. Minnesota
Near was a vicious anti-semite.
Saturday Press is closed in 1927.
MN Supreme Court upholds closure.
State’s constitution did not protect “malice, scandal, and
defamation when untrue or published with bad motives or
without justifiable ends.”
Protects the “good guys.”
Near v. Minnesota
Near attacked corruption in city government in aggressive,
defamatory language.
Charged that Jewish gangsters were in control of gambling,
illegal activities.
County attorney sues; district court rules Press is a public
nuisance; “perpetually enjoins” publication.
To reopen, Near would have to convince court the Press
would remain free of objectionable material.
Near v. Minnesota
MN Supreme Court upholds the law. State can regulate
public nuisances, including defamatory publications.
US Supreme Court reverses. MN law not aimed at redressing
wrongs to individuals; it was aimed at suppressing the Press
for good.
Aim of the law was not punishment, but censorship, now
and into the future.
It was prior restraint.
Near v. Minnesota
Hold on, though! Even though Justice Hughes wrote it was
illegal to close Press, he also said it was OK to bar publication
of obscenity, stuff that incites people to violence, other
material during wartime.
Probably wanted to maintain the slim 5-4 majority.
Bottom line: prior restraint IS permissible, but only in rare
circumstances.
Grosjean v. American Press Co.
(1936)
You can’t tax the press to punish it.
LA Gov. Huey Long signs into law a
tax on newspapers to punish those
who had criticized him.
Supreme Court rules this
unconstitutional; citing Near, Court
holds press has an essential informing
function.
People entitled to “full information”
about our leaders’ activities.
“Informed public opinion is the most
potent of all restraints upon
misgovernment,” Court rules.
U.S. v. Progressive (1979)
U.S. v. Progressive (1979)
Judge Warren agrees with the government, saying that some
of the ideas in the Progressive article were not publicly
available – ideas vital to the operation of the H-Bomb.
Wasn’t a how-to guide, but could provide a clearer path for
other nations to develop one.
Would you need to build an H-Bomb to develop an informed
opinion?
Rice v. Paladin Enterprises
(1997)
Rice v. Paladin Enterprises
(1997)
District Court in MD finds the book “Hit Man: A Technical
Manual for Independent Contractors” is protected by 1A.
Didn’t cross the line between advocacy (permissible) and
incitation to violence (impermissible).
Fourth Circuit reverses; Paladin essentially assisted James
Perry with knowledge and intent that “Hit Man” would used
for murder.
Supreme Court declines to review; book taken off the market
as part of settlement.
The Pentagon Papers
New York Times v. U.S. 713 U.S.
403 (1971)
NYT, Washington Post, other papers, publish articles based
on a top-secret government study: “History of the United
States Decision-Making Process on Vietnam Policy.”
NYT refuses request by U.S. Attorney General John Mitchell
to refrain from publishing; NYT refuses; Mitchell gets a
TRO.
U.S. claims publication violated federal espionage statutes;
President had power to protect national security.
Daniel Ellsberg: The Most
Dangerous Man in America
New York Times v. U.S. 713 U.S.
403 (1971)
Lower courts disagree; U.S. shifts gears, argues publication
might cause irreparable harm to nation, ability to conduct
foreign affairs.
Papers argue the classification system was bogus;
government would declassify at will when it wanted to sway
public opinion.
TRO violated 1A, they claimed. BUT they didn’t argue prior
restraint always violates 1A.
The Court’s Ruling…
New York Times v. U.S. 713 U.S.
403 (1971)
It’s OK sometimes, as when there’s a link between
publication and a grave event.
Papers wanted to win, not attack a long-standing principle.
Supreme Court rules 6-3 for the papers, but in a per curiam
opinion. Government has a heavy burden to justify prior
restraint.
Didn’t do so here. BUT injunctions like this one might NOT
always violate 1A…
Onward To Newsgathering…
What happened to the “Golden Age of Access?”
Our dislike/distrust of the press has helped the government
become more secretive.
Common law is no help.
The U.S. Constitution offers little help.
In Zemel v. Rusk (1964), Supreme Court holds FOS, FOP
does not carry with it an unrestrained right to gather
information.
What Can’t Officials Do?
Pass a law requiring a news organization to run something.
Impose criminal penalties, or exact civil damages, for
publishing or running truthful information of public concern.
...or when false information about a public figure is
published, unless that figure meets the Sullivan test.
Compel journalists to reveal their sources - most of the time.
Bar journalists from attending judicial proceedings and
informing us about them – most of the time.
What Can’t I Do?
Commit fraud
Misrepresent
Disobey lawful orders
Secretly record a conversation (in some states)
Photograph/videotape someone without permission
Talk to jurors while a case is ongoing.
And then there’s
Jim Taricani…
Onward Still to Newsgathering..
When courts have found 1A does provide means of access,
they’ve ruled right belongs to press AND to public.
Reporters don’t have special rights here – only those we all
enjoy.
And it’s not really a great shield to ward off prosecutions for
invasion of privacy, trespass, disorderly conduct in pursuit of
a story.
But What About These
Arguments?
An informed citizenry needs information to govern itself.
The most important source of this information is the press.
Journalists have to go where the news takes place (and where
the people are, Little Mermaid fans) – this may mean private
property or a restricted area.
Or pose as someone else, lie about their resumes – in the
name of a higher purpose!!
Ignore Subpoenas Much?
Branzburg v. Hayes, 408 U.S.
655 (1972)
Branzburg called to testify about drug use and sales in
Kentucky – had written about it.
Promised sources anonymity, even after receiving subpoena
from grand jury.
Two other reporters called to testify about Black Panther
party activities.
Claimed they could decline to testify before grand jury.
Lower courts reject Branzburg’s and Pappas’ argument.
Branzburg v. Hayes, 408 U.S.
655 (1972)
Ninth Circuit rules in Caldwell’s favor. Forcing a journalist to
appear before grand jury might damage the public’s 1A right
to be informed.
Journalists enjoyed a qualified privilege protecting them
when called.
Supreme Court consolidates, reverses.
No privilege, Justices say. GJ entitled to “every man’s
evidence.”
This wasn’t about prior restraint, just reporters responding to
subpoenas.
Branzburg v. Hayes, 408 U.S.
655 (1972)
Citizens not immune from GJ subpoenas.
Pretty fractured decision.
Powell concurs, says reporters aren’t without rights when it
comes to newsgathering.
Later, in a dissent in Saxbe v. Washington Post, he would say
Branzburg was pretty narrow.
Corollary to right to publish is right to gather news, he says.
Branzburg v. Hayes, 408 U.S.
655 (1972)
Douglas dissents, says press has a preferred position
(remember that one?) in our constitutional scheme to fulfill
the public’s right to know.
Post-Branzburg, journalists lose when they try to carve out
special rules for gather news.
Stewart also dissents; criticized majority’s “crabbed view” of
1A.
Law enforcement has to overcome “a heavy burden of
justification” to gain info.
Branzburg v. Hayes, 408 U.S.
655 (1972)
These are the conditions: info is 1) clearly relevant; 2) can’t
be obtained by less intrusive means; 3) there must be a
compelling interest in the info.
LOTS of post-Branzburg uncertainty.
Many jurisdictions recognize something close to privilege.
Since Branzburg…
Pell v. Procunier (1974): Supreme Court finds reporters do
not have a special right of access to prisons under 1A beyond
what the public has.
Saxbe v. Washington Post (1974): Can’t just stroll in an start
interviewing. Arrange a tour! Prison officials must cooperate.
Consumers Union v. Periodical Consumers Assn. (1975):
DC Circuit says you can’t prevent a publication from
covering Congress just because you don’t like its editorial
direction.
Since Branzburg…
LeMistral v. CBS (1978): NY judge rules you just can’t barge
into a restaurant with camera rolling and lights on.
Journalists must report with “right reason and dignity.”
You can’t trespass on private property if the owner objects –
even if a public official invites you.
You have to leave if asked, even if news is unfolding.
Since Branzburg…
Houchins v. KQED (1978): Neither 1A or 14A mandates a
right of access to government information or sources of
information within government’s control.
You can’t follow protestors into a restricted area (Stahl v.
Oklahoma, 1983).
If a property owner consents, they can’t file trespass charges
later. Government officials who enter a property in an
emergency don’t have the authority to invite you in.
Since Branzburg…
Richmond Newspapers v. VA (1980): High court rules right
of public and press to attend criminal trial is guaranteed
under common law and 1A.
Leiserson v. City of San Diego (1986): CA Appeals Court
finds officials didn’t show unrestricted access would interfere
with emergency crew and press had been given maximum
possible access.
Since Branzburg…
Connell v. Town of Hudson (1990): Federal judge says
photographer’s civil rights were violated when police arrested
him for taking photos after twice moving per their request.
Wilson v. Layne (1999): High court rules that taking media
along for an arrest violates the 4th Amendment – but after the
fact here.
Citicasters, Inc. v. Finkbeiner (2007): OH federal judge says
you can’t bar someone from attending your press conferences
because you don’t like how you’ve been covered.
Since Branzburg…
Do We Need a Federal Shield
Law?
Allow journalists to protect confidential sources.
Branzburg Court left it to Congress and states to create SL’s.
38 states (and DC) have ‘em.
Many, many attempts to create federal SL.
How do you define journalist?
Reporters want absolute privilege.
Who else do these laws cover?
Do We Need a Federal Shield
Law?
Vanessa Leggett, author: spends 168 days in prison for
refusing to hand over recordings, notes, photos.
Judith Miller, NYT reporter: spends 85 days in jail for
refusing to divulge who told her about Valerie Plame.
Josh Wolf, independent blogger: on 2/6/07 became longest
incarcerated US journalist (226 days). Wouldn’t hand over
video footage of July 2005 anti G-8 anarchist protest in SF.
Do We Need a Federal Shield
Law?
Let’s go local:
NJ: Absolute privilege in civil cases; qualified in criminal.
DE: Depends on proceeding; absolute privilege in legislative,
outside of court proceedings.
PA: Absolute all the way around; can be overcome only if Sixth
Amendment rights are impacted.
Do We Need a Federal Shield
Law?
Justice White predicted the “who’s a journalist?” challenge.
1A implies anyone can assume the role of reporter.
Journalists aren’t licensed.
Check your state’s law!
Is it “a rash” or not a big deal?
Free Flow of Information Act passes House in 2007.
Do We Need a Federal Shield
Law?
Many courts, state legislatures get it.
Baker v. F&F Investment (1972): 2nd Circuit says compelling
reporter to divulge “unquestionably threatens a journalist’s
ability” to obtain confidential information.
Many federal courts OK with a qualified privilege, roughly
follow the Branzburg test.
So check what kind of information is protected in your state.
Is the underlying case civil or criminal?
So if my source demands
confidentiality…
Assume the interview is on the record.
You’re under no obligation to provide anonymity if the info
has already been given.
Find out what you can about where the information
originates.
Talk with your editor before making the promise.
Keep the promise simple.
Record it in some fashion.
Other tips on confidentiality…
Don’t make it a standard reporting technique.
Try to persuade your source to give the information even
though you might have to reveal his/her identity.
Corroborate the source’s info with non-confidential
documents.
Think about whether law enforcement would want to know
your source before you publish or go on the air.
Don’t promise story approval.
Post-Judith Miller Reporting
How much information should you put into your notes, your
emails?
Who should you tell about your sources?
What happens when you and your bosses aren’t on the same page?
Having your bosses cave dissuades potential sources from reaching
out.
Adds to distrust of editors by reporters.
Entertainment conglomerates don’t think of you as real reporters.