Freedom of Information

Law and the Newsgathering Process

Do journalists have the same freedom to gather as to disseminate news? Many journalists assume that First Amendment protections apply as forcefully to the former as to the latter. It only makes sense, right? After all, how could the press be expected to fulfill its constitutionally protected role as public informer without the constitutionally protected ability to gather information?

The answer is not that simple. And the question is figuring ever more prominently in the lives of journalists--and their lawyers--particularly because of those who would characterize the press as persecutor, rather than protector, of the public interest. The "hot" legal questions these days, both in electronic and print journalism, center not around publication or broadcast, but on the newsgathering process itself. Ride-alongs, hidden cameras, secret taping, deceptive practices, invasion of privacy and so-called persistent or aggressive behavior by journalists looking for a story have loomed large in lawsuits, legislation and public debate involving the media during the past year.

What you say is protected; how you get the information is not
The degree of constitutional protection accorded newsgathering is held to be distinct from and lower than that given dissemination, even though we conceive of the former as a prerequisite to the latter. Unfortunately, newsgathering, as we know it today, was not foremost in the minds of those who drafted the Bill of Rights when they conceived freedom of the press. Back then, news was being covered, not uncovered.

Notwithstanding its importance to First Amendment values, newsgathering is still merely conduct, not speech, and the Supreme Court has never clearly articulated the scope of First Amendment protection for the activities that take place prior to publication or broadcast. We know that First Amendment protection extends to "routine newspaper reporting techniques," but we do not know where routine ends and extraordinary begins. Nor do we know what degree of protection should be accorded routine radio or television reporting, particularly through the use of new technologies.

Most people are, therefore, uncertain about which newsgathering activities are, or are not, protected. Newsgatherers have no right of access to people, places or documents beyond that granted to the general public, although the Supreme Court has recognized that journalists are frequently given preferential treatment as public surrogates. In a 1991 Supreme Court decision, Cohen v. Cowles Media, Justice Byron White said that the First Amendment offers no protection from the enforcement of "generally applicable laws" against newsgathering and that First Amendment protection applies only to information that has been "lawfully acquired."

Investigative reporting faces a threat
Before I lose you by delving into too much legal mumbo jumbo, let me try to bring home why journalists need to concern themselves with this issue. We are increasingly discovering that it is no longer sufficient for reporters to worry about simply getting the facts straight (thus avoiding libel suits, for example). They must also ponder how legislatures, judges and juries will evaluate their methods of gathering the news.

Witness the ABC/Food Lion case. CBS's decision to pull a 60 Minutes interview with a former Brown & Williamson Tobacco Corporation vice president. The lawsuit brought by U.S. Healthcare executives against Inside Edition. The California lawsuit brought by the victim of an automobile accident following the television broadcast of her rescue. Anti-paparazzi legislation on both the state and federal levels. The focus on privacy concerns.

Consider, for example, the impact uncertain law and heightened scrutiny of newsgathering techniques may be having on investigative reporting, which plays a valuable role in exposing societal ills and advancing reform. Suppose your investigative reporter has discovered reliable evidence that an elected representative is accepting bribes. May the reporter impersonate a lobbyist to investigate this claim? Record the activity using a telephoto lens or high-powered mike? What if your news organization believes that a private business is acting in a way that threatens the public health or safety? Do you have your reporter misrepresent his or her true status, obtain entry, and record behavior using a hidden camera? Are these legitimate or routine newsgathering techniques? And if you didn't use these techniques, would the story be told? After all, if I am engaged in wrongdoing, I am at least likely to be smart enough to cease that activity when a news producer shows up with a camera and a microphone.

Although the discovery and airing of the information alluded to above would be socially beneficial, constitutional law affords the reporter little protection if, regardless of the truth of the story, the elected representative, for example, sues under now more commonly invoked theories of liability, such as intrusion. Consequently, the investigative reporter attempting to determine whether to use certain means of acquiring news must look to tort law for answers that constitutional law does not provide.

When does reporting become invasion of privacy?
But tort law often provides no clear answer to the dilemma. Is subterfuge routine? How far can a newsgatherer push into the private realm of another? A defendant will ordinarily not be liable for observing and recording matters which occur in a public place or a place otherwise open to the public eye unless his actions are unusually obtrusive, but does the use of a telephoto lens to enhance that "eye" change the rule?

Because the line between protected newsgathering and tortious newsgathering is difficult to draw, journalists are forced to engage in a dangerous guessing game. And media lawyers are increasingly giving out conservative advice. With the threat of liability looming large, a reporter is likely to steer away from arguably nonroutine newsgathering methods such as impersonation or surreptitious recording and to engage in rational self-censorship even in cases where his conduct would ultimately be lawful and would produce valuable information.

Let the courts weigh the First Amendment issues at stake here.
It is tough to gauge when our freedom to gather news has been unconstitutionally abridged. Media arguments for special protection for newsgathering have fallen largely on deaf ears. But that doesn't mean we shouldn't continue to emphasize the importance of constitutional interpretations which protect beneficial press activities. It would be ludicrous to assume that the First Amendment would protect a reporter who negligently ran over a pedestrian while speeding merely because the reporter was on the way to cover a news story. There must, afterall, be some degree of attenuation from the newsgathering function at which the conduct takes on no constitutional significance.

But we should be fighting for a balancing of First Amendment interests where there is an overriding public interest in the information being gathered. Where there are violations in pursuit of the news, perhaps courts should have the responsibility to consider the First Amendment values at stake, weigh them against the other societal values represented by the laws in question, and where appropriate, adjust those laws to accommodate higher values. As some scholars have suggested, maybe one cannot conclude that an act is legally wrongful until one has been satisfied that there is no superior First Amendment interest implicated in the attempt to apply criminal sanctions to, or to require the payment of tort damages by, the person committing the act.

Recent efforts to deter the acquisition of new information by the threat of civil or criminal liability raise the same constitutional problems as the deterrence of the publication of information that may turn out to be false or defamatory or invasive of privacy. Debate about public issues should be constantly reinvigorated with new information and fresh ideas. Limiting the acquisition of information would be to ignore the reality of the role that the press serves in identifying not just what the public will be interested in but also what is in the public interest.

The public at large has an interest in the role that the press plays in informing the public about the behavior of others, in affecting the conduct of public officials and public figures, and in deterring wrongful conduct by both public officials and private individuals. If publication were the only media activity subject to constitutional protection, the press would be shackled and speech would be chilled as a result of the potential exposure to liability for criminal or tortious conduct engaged in furthering the newsgathering process.

The legal issues surrounding liability for newsgathering are very complex. While the attacks we are witnessing on newsgathering activities are troublesome, the good news is, if recent trends continue, the issues will come before the courts with greater frequency. In these legal battles, we should fight for a vigorous press that is free to conduct responsible investigations of newsworthy stories with a constitutional shield of some meaningful dimension.

Kathleen Kirby is an attorney with Wiley, Rein & Fielding in Washington.