Testing the boundaries of the First Amendment press clause: a proposal for protecting the media from newsgathering torts.

• Author: Fargo, Anthony L.

1. THE FIRST AMENDMENT PROBLEM A. Defining News in the Public Interest II. COHEN, FOOD LION, AND DESNICK III. THE CONTINUING LEGACY OF COHEN, FOOD LION, AND DESNICK A. Cohen Clones B. Reputation Claims in Disguise C. Promises Broken D. Surreptitious Newsgathering E. Possible Solutions 1. Do Nothing 2. The Media Should Change 3. Courts Should Provide More Press Protection IV. TESTERS AND REPORTERS A. Testers and the Law B. Journalists As Testers CONCLUSION The use of undercover techniques and deception to gather news, which became a hot topic for journalists and media attorneys after the highly publicized Food Lion incident in the 1990s, (1) recently resurfaced as a controversial issue as a result of NBC's To Catch a Predator series on the Dateline news magazine show. (2) The series, in which NBC worked with police agencies and an Internet watchdog group called Perverted Justice (3) to lure men who allegedly wanted to have sex with minors they met online to decoy houses to be humiliated on TV and then arrested, has apparently lost its luster. (4) In 2008, NBC Universal the network's parent company, settled a lawsuit filed by the family of a prosecutor who committed suicide in Texas when police and a Dateline crew surrounded his home after he failed to show up at a decoy house. (5) In refusing to dismiss some of the claims against NBC, the judge in the lawsuit became one of the latest individuals to suggest that NBC had violated journalistic ethics and common decency to boost ratings. (6)

   The Predator controversy both illuminates and obscures legal issues about surreptitious reporting. Moreover, Food Lion and similar cases have raised more questions than they have answered about the legal boundaries for newsgathering behavior. These questions include: To what extent, if any, are journalists protected from tort actions when they engage in fraud or other questionable behavior to research a story? To what extent does the public interest served by a story mitigate tort liability? Is there a way to protect newsgathering methods that are fraudulent, deceptive, or intrusive if they serve the public interest but not if they are used for arguably less honorable ends?

   This Article examines these and other questions and offers a possible solution to the problem of holding journalists liable for their methods of newsgathering when the news has high public-interest value. In Part I, the Article examines the formidable problem created by the Supreme Court's First Amendment jurisprudence, which generally has not recognized any special rights protecting the news media's activities. Assuming that the precedents are not completely dispositive in regard to the topic explored here, the Article turns in Part II to examining the legacy of Cohen v. Cowles Media Co. (7) and its most high-profile progeny, Food Lion (8) and Desnick, (9) which together demonstrate the disparities in the ways that the courts have judged newsgathering torts and balanced plaintiffs' damages against the public interest in the stories. Part III more closely examines the less-famous progeny of Cohen to identify the inconsistencies and other doctrinal problems the decision has caused, and it discusses earlier suggestions for solutions to the problems. Part IV presents a possible solution to the problem of balancing the legitimate concerns of investigative journalists with the need to protect subjects of news stories from blatantly unethical and illegal newsgathering tactics when the stories serve little or no public interest. Specifically, Part IV examines whether an existing doctrine for "testers" would be applicable to cases in which news gatherers are the defendants. Part V offers additional analysis and concluding remarks.

1. THE FIRST AMENDMENT PROBLEM

   [L]iberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. (10) The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring fulfillment to the public's right to know. The right to know is crucial to the governing powers of the people.... Knowledge is essential to informed decisions. (11) As the two quotes above from Branzburg v. Hayes (12) demonstrate, members of the Supreme Court of the United States have often disagreed about the meaning of the Press Clause of the First Amendment. (13) Although individual Justices have argued that the press serves a special function in a democracy and therefore needs more protection than the "lonely pamphleteer," arguments for special protections have not prevailed. First Amendment historian Margaret Blanchard once noted that among the most consistent lines of Supreme Court reasoning is that First Amendment press and speech rights accrue to individuals, not institutions or journalists in their capacity as journalists, and are inseparable from each other. (14) Professor Blanchard was writing thirty years ago, but her remarks are still accurate, at least on the surface. (15) One recent noteworthy examination of the Supreme Court's Press Clause jurisprudence challenges this traditional interpretation of the Court's rulings and suggests that the Court has quietly recognized press rights separate from individual rights in privacy and taxation cases, among others. (16) The more traditional view remains that the Court has steadfastly refused to grant any "institutional" rights associated with the First Amendment, possibly to the detriment of both institutions and individuals. (17)

   It is not uncommon for academic theory about the meaning of a particular part of the Constitution to be at odds with Supreme Court jurisprudence. That is certainly true regarding the Press Clause of the First Amendment. Part of the problem stems from the Framers' near silence on why freedom of the press was protected under the Bill of Rights. (18) Equally unclear is what exactly the phrase "freedom of the press" meant to the Framers and why both freedom of speech and of the press are protected separately. (19) Given the vast changes in society and the media in the two centuries since the First Amendment was ratified, it is not clear that the Framers' intent in regard to a free press should be a major concern today. Arguably, the lack of guidance from the Framers about the meaning of press freedom could explain the nature of Supreme Court jurisprudence regarding press claims of special First Amendment protections.

   Those who suggest that the writers of the First Amendment meant for the words "speech" and "press" to mean two different things often describe the difference between the two words in instrumental terms--what purpose is served by free speech and a free press? For example, Professor Melville Nimmer suggested that speech and press rights serve similar interests but with some distinctions. (20) If the speech right is viewed as an individual right of free expression, then it serves three major functions: a conduit for democratic dialogue, a source of "self-fulfillment" for the speaker, and a "safety valve" through which persons can express themselves without resorting to violence. (21) The press, meanwhile, through its informing and opinion-shaping functions, is more significant than individual speech in the democratic dialogue function but less significant to the self-fulfillment and "safety valve" functions. (22)

   Professor Nimmer also noted that the debates about the First Amendment in Congress before the Bill of Rights was sent to the states for ratification did not imply a distinction between speech and press. One inference that he suggested was plausible from the language of the First Amendment was that the Framers merely wanted to make sure that both oral expression (speech) and written expression (press) were protected from abridgement. (23)

   Other writers have suggested that Professor Nimmer might have underestimated the value that the Framers placed on the institutional press. For example, Justice Potter Stewart said in a 1974 speech that examining original intent would favor a view of the Press Clause as a protection specifically for the institutional media. (24) Justice Stewart argued that the Press Clause would be a "constitutional redundancy" if it was only meant to protect individuals' expressive acts, because the speech clause already served that function. (25) Instead, he argued that the Framers intended to protect the press as an autonomous "Fourth Estate" to serve as a check on the three official branches of government. (26)

   The idea that a key purpose of the Press Clause is to enable the press to act as a check on government is popular in literature about the First Amendment, although not everyone limits the responsibility of keeping an eye on government to the press. Professor Vincent Blasi has suggested that the First Amendment serves to facilitate the people's rein on government power. (27) He has argued that both the press and the public constitute the Fourth Estate and act as a check when they exercise all of the rights enumerated in the First Amendment, including the rights to free speech, association, and petition. (28)

   Professor C. Edwin Baker has suggested that there are many possible theories about how a democracy should work or does work, and that each theory carries a different set of priorities for the press. (29) All of the democratic theories would favor, at the least, a "watchdog" function for the press to keep a check on government. (30) The watchdog analogy, prominent in journalism lore, was a popular defense for journalists facing criminal or civil libel actions or contempt charges for publishing opinions about pending cases as far back as the mid-1800s. (31) In essence, journalists argued that they should be protected from criminal and civil punishments for libel and "contempt by publication" because they were...