Outtakes, hidden cameras, and the First Amendment: a reporter's privilege.

• Author: Tuley, Alison Lynn

On November 5, 1992, the ABC investigative journalism show PrimeTime Live broadcast a segment about Food Lion, then the fastest-growing supermarket chain in the nation.(1) PrimeTime Live, relying on undercover film footage, reported that Food Lion employees regularly used unsanitary food handling practices.(2) Food Lion's stock fell sharply the next day,(3) and its net profits dropped from $178 million in 1992 to $3.8 million in 1993.(4)

The television segment broadcast approximately five minutes out of fifty-five hours of footage(5) from a camera smuggled into the store by an ABC producer working undercover as a meat wrapper.(6) Even before the show aired, Food Lion executives filed suit in federal court in an attempt to block the telecast.(7) They charged that the ABC producer had obtained her job under false pretenses, and that ABC's First Amendment rights "do not allow it to use illegal means to invade the privacy and property rights of businesses and people."(8) After the district court judge denied the initial request to block the broadcast,(9) Food Lion sued again, this time alleging common law fraud, trespass, and civil conspiracy, and seeking $30 million in damages.(10)

On June 30, 1995, ABC filed a motion asking for a protective order to prevent Food Lion from using the fifty-five hours of videotape footage outside of the case.(11) The magistrate judge refused to grant the network's protective order, stating that ABC had not made "a clear showing of confidentiality, privilege, or copyright infringement."(12)

Finally, in August 1995, Food Lion attorneys screened the outtakes(13) for the first time, after which Food Lion claimed that the footage did not support the broadcast segment.(14) ABC's lawyers insisted that the program was fair.(15) Furthermore, they argued that ABC News should be able to keep the footage confidential because it was similar to notes taken by print reporters, and therefore protected by the First Amendment.(16) Nevertheless, the jurors were allowed to view some of the outtakes.(17)

This Note focuses on investigative journalism and hidden cameras and examines the implications of constitutional protection for reporter work product in the forms of both standard and hidden camera outtakes. This Note posits that the courts are biased against television reporter work product, and that this bias arises from a general prejudice against television as a medium. Arguing that such bias is inappropriate, this Note concludes that interference with the editorial process is a less appropriate control on media than other currently available controls.

THE REPORTER'S PRIVILEGE: A CONSTITUTIONAL PERSPECTIVE

Underlying Rationales

Although the Constitution does not provide explicitly for a reporter's privilege, the media have argued successfully that the First Amendment mandates a privilege protecting confidential news sources.(18) At least two strands of reasoning have developed in support of such a privilege grounded in the First Amendment.(19) The first falls under the rubric of the "public's right to know,"(20) an argument invoked by Justice Brennan in Herbert v. Lando.(21) A second grounding of the privilege, the "structuralist" view, was most notably advanced by Justice Stewart in a speech given at Yale Law School.(22) Justice Stewart's structuralist view of the privilege has, perhaps, a firmer constitutional foundation, while Justice Brennan's argument for the public's right to know relies more on overarching public policy rationales. Although both arguments appear in the case law discussing the reporter's privilege, Justice Brennan's view has greater appeal, and often has been invoked in subsequent First Amendment decisions.(23)

Branzburg v. Hayes--The Seminal Case

Branzburg v. Hayes(24) involved four consolidated cases in which reporters claimed a First Amendment privilege to withhold testimony before a grand jury.(25) Noting that "news gathering is not without its First Amendment protections,"(26) the majority nevertheless refused to recognize a "constitutional newsman's privilege"(27) and held that "requiring newsmen to appear and testify before state or federal grand juries [does not] abridge[] the freedom of speech and press."(28) In hindsight, the majority opinion has not directed definitively the future of the reporter's privilege; rather, Justice Powell's concurrence(29) and Justice Stewart's dissent(30) have proven more influential.

In his brief concurrence, Justice Powell emphasized that the Court's holding addressed a narrow question(31) and suggested that "[t]he asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct."(32)

In his dissent, Justice Stewart proposed that the government should be required to fulfill a three-part test in order to overcome a reporter's privilege.(33) The test would require the government to:

(1) show that there is probable cause to believe that the

newsman has information that is clearly relevant to a specific

probable violation of law; (2) demonstrate that the information

sought cannot be obtained by alternative means less destructive

of First Amendment rights; and (3) demonstrate a

compelling and overriding interest in the information.(34)

Justice Stewart further noted that Justice Powell's "enigmatic concurring opinion gives some hope of a more flexible view in the future."(35)

Commentators disagree over which opinion has most influenced the reporter's privilege.(36) Both Justice Powell's and Justice Stewart's arguments are persuasive, and the United States Courts of Appeals have varied in which argument they have chosen to follow.(37)

Taking Branzburg to the Limit

After the Supreme Court established the framework, the lower courts began tinkering with the concept of a reporter's privilege, taking it far beyond the majority's holding in Branzburg.(38) Combining a rationale culled from Federal Rule of Evidence 501 with the language of Branzburg, courts expanded the protection available to journalists.(39) Two cases, one from the Second Cir- and the other from the Third Circuit, evinced strong support for a privilege and employed representative reasoning.(40) The Third Circuit emphasized balancing the relevant interests,(41) while the Second Circuit employed a more explicit three-pronged test.(42)

The lower courts have taken advantage of possible avenues that the Supreme Court has prescribed (or, at any rate, not proscribed), for formulating some sort of reporter's privilege. Nine circuit courts have recognized a qualified privilege expressly,(43) two have not addressed the issue,(44) and only one has decided that no such privilege exists.(45)

THE PRIVILEGE APPLIED: HOW DO OUTTAKES FARE?

Standard of Review

Branzburg was the Supreme Court's last ruling on the reporter's privilege,(46) and the lower courts have cobbled together their own body of privilege law.(47) The tests, however, are fairly similar from circuit to circuit. Generally speaking, reporter's work product issues undergo a two-tiered review.

The first step usually involves a threshold determination of whether work product should receive in camera review.(48) This evidentiary determination follows the procedure outlined in United States v. Nixon.(49) If the reporter's materials at issue fulfill these first-tier threshold guidelines, then the court may move to the second tier of constitutional review, employing either the three-pronged test or applying balancing analysis used by the specific circuit court in order to determine whether the privilege exists.(50)

The Standard Applied

As stated by one noted media scholar, "[t]he law governing reporters' work product is `not very developed'."(51) Very few decisions deal with outtakes specifically, and the existing recent decisions are scattered throughout the federal courts.(52) Taken as whole, however, the cases suggest that outtakes are more likely to be discoverable than other forms of journalistic work product for two reasons: the inherent nature of the medium, and a subtle judicial bias that favors "traditional" written work product.(53)

Doe v. Kohn, Nast & Graf, P.C.(54) provides a lens through which to examine these arguments. In Kohn, the plaintiff brought action under the Americans with Disabilities Act against the law firm of Kohn, Nast & Graf.(55) Doe had worked at the firm as an associate, and alleged that the partners had fired him when they discovered that he was HIV-positive.(56) After the plaintiff filed the lawsuit, ABC, CBS, and NBC each interviewed him.(57) Both ABC and NBC broadcast a portion of the interviews.(58)

The portions of the interviews that were actually broadcast were produced in discovery.(59) The defendants, however, also subpoenaed the networks for the unbroadcast outtakes.(60) ABC, CBS, and NBC objected to production, asserting a reporter's privilege arising under "federal common law and the First Amendment to the Constitution."(61) In analyzing the networks' assertion, the district court performed a two-tiered review.(62)

In camera Review

The district court first noted that an in camera review of the tapes "would be helpful, if not essential, to its analysis,"(63) and used United States v. Cuthbertson(64) as its template.(65) In Cuthbertson, CBS argued that "even in camera review inhibits the journalist's exercise of rights protected by the first amendment."(66) In analyzing CBS's argument, the Third Circuit gave a mixed message as to how effectively the media can protect itself against in camera review in cases involving outtakes. The court concluded that in camera review is justified if the defendant satisfies the Nixon test(67) and also establishes "that the information sought is not available from another source."(68) In its analysis, the court noted that the second and third elements of the Nixon test did not apply to cases in which...