Fall 2009 Media Law Review - Part Two

VIII.  Subpoenas and Searches                    

A.  A First Amendment Reporter’s Privilege: Branzburg v. Hayes

In Branzburg v. Hayes (page 624), the Supreme Court considered whether the press had a qualified First Amendment privilege to refuse to testify before a grand jury when to do so would disclose confidential information acquired in the course of newsgathering activities.  Four members of the Court, a plurality, found that no such privilege existed, although these Justices suggested that a grand jury investigation had to be conducted in good faith and that harassment of the press to disrupt relationships with sources would not be acceptable .  One member of the Court, Justice Powell, agreed in outcome with the plurality, but his opinion can be read to recognize a form of limited constitutional privilege that requires courts to balance the First Amendment interests of the media against the government's need for the information on a case by case basis.  Three members recognized the existence of a qualified privilege that required the government to show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law, demonstrate that the information sought cannot be obtained by alternative means and demonstrate a compelling interest in the information.  Finally, one member recognized the existence of an absolute privilege.

In the aftermath of Branzburg, many state and federal courts, despite the fact that the reporters lost in Branzburg, interpreted the decision as recognizing a qualified First Amendment privilege, based on the view of Justice Powell (whose view, together with the votes of the 4 dissenters, represents the narrowest ground of agreement among 5 members of the Court).  Recent cases, however, have been less supportive of this view and have rejected this interpretation of Branzburg in favor of adopting the position of the plurality rejecting a First Amendment claim (In Re Grand Jury Subpeona, Judith Miller - Supplement page 51).

B.  Other Sources of a Reporter’s Privilege

Numerous courts, however, have recognized other sources for the protection of a privilege including federal common law (based on Federal Rule of Evidence 511), state constitutional law, state common law, and state statutes in the form of state shield laws.  If a privilege is found to exist, it must be invoked by the reporter.  On the other hand, the privilege can be waived by the source of information although the reporter need not necessarily disclose even if the source waves the privilege.  If the privilege claim is rejected, but the reporter refuses to disclose the information, the reporter can be cited for contempt and jailed.  If the reporter is a party to the litigation in which the information is sought, punitive measures other than jail exist including an adverse jury instruction, striking a claim or defense or a default judgment.

C.  Scope of the Privilege

Privileges to protect information obtained in the course of newsgathering activities vary as to both their source and their scope.  They differ in the scope of their protection on a variety of issues including whether the privilege is absolute or qualified, if it is qualified, what kind of showing must the government make to overcome the privilege, whether the protection applies equally in the civil law and criminal law context, whether the protection applies when the reporter is a party to the action in which information is sought from the reporter (such as in libel cases), whether the privilege applies even if the reporter did not make a promise of confidentiality to the source, whether the privilege protects persons other than traditional members of the press, whether the protection contains an exception for situations where the reporter was a witness to a crime, whether the protection extends to outtakes and other unpublished material, and whether the reporter is protected in a clash between the reporter’s rights and a defendant’s fair trial rights.

It is easiest to examine the varying approaches to these scope issues in the context of state shield laws that have been enacted to protect against compelled disclosure of information by the press, although these issues also arise in the application of a qualified common law privilege.  Recognizing such a common law privilege, the court in Gonzales v. NBC, Inc. (page 585) required the plaintiff in a civil suit to satisfy a less burdensome test when seeking access to non-confidential material in the hands of the press (“the materials at issue are of likely relevant to a significant issue in the case, and are not reasonably obtainable from other available sources”) than when seeking access to material protected by a promise of confidentiality (“disclosure may be ordered only upon a clear and specific showing that the information is: highly material and relevant, necessary or critical to the maintenance of the claims, and not obtainable from other available sources.”).

Specific shield laws that we examined include the proposed federal law, the Free Flow of Information Act of 2009, and the California shield protection found in both the state constitution and in statutes (O’Grady v. Superior Court).

When protection for the press can be found in a variety of sources, the press is permitted to claim the cumulative protection available from all such sources.  Therefore, claims can be brought to protect against the disclosure of certain information based on one source of protection while asserting rights based on another source of protection as to other information.     

D.  Newsroom Searches

After the Supreme Court upheld the search of a newsroom and seizure of notes, photos, tapes and other evidence in Zurcher v. Stanford Daily (page 599), Congress passed a statute that applies to state and federal newsroom searches and forbids, with some exceptions, such searches and the seizure of documentary material.  A number of states have enacted such laws as well.

E.  Telephone Calls and E-Mail Messages

Government efforts to pursue an investigation where press contacts with sources are key, such as a leak investigation, can also involve an effort to obtain information from third-party sources such as a reporter’s cell phone company or e-mail service provider.  New shield laws, such as the proposed federal shield law, specifically grant the press the right to object to such third-party requests for information.

IX.  Access to Information


The Federal Freedom of Information Act (FOIA) creates a public right of access to information in the hands of federal government agencies, but excluding Congress and the federal courts.  Information available under the statute can be requested by any person and the statute does not require that the requester state reasons for the request.  However, there are nine categories of exemptions describing material that need not be made available to the public.  Some of those exemptions protect national security or law enforcement activities, but others concern themselves with privacy.  In National Archives and Records Administration v. Favish (page 606), the Supreme Court reviewed a FOIA request in which the government asserted an exemption under 7 (c) which covers law enforcement records, but exempts records that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The Court concluded that the disclosure of death scene photographs would violate the privacy rights of the family of the deceased.  In light of this fact, the requester was required to show that the public interest sought to be advanced by disclosure was a significant one and the information requested is likely to advance that interest.  If the requester makes such a showing, the court will then balance the privacy interest at stake against the public interest in disclosure.  In Favish, the Court concluded that Favish, the requester, had not made the necessary showing so it was not necessary to balance the competing interests.  In a more recent FOIA case, ACLU v. Department of Defense, the government asserted FOIA exemptions 6, 7 (c) and 7 (f) to bar disclosure of detainee photographs and the Second Circuit rejected all of the government's arguments.  The Second Circuit rejected reliance on the privacy-based exemptions (6 and 7 (c)) based on the fact that the detainee photos had been redacted to remove all identifying information.  The court also rejected the government's argument under 7 (f) that the photos, if disclosed, could "endanger the life or physical safety of any individual."  The government argued that the release of the photos could endanger "the life or physical safety of United States troops, other Coalition forces, and civilians in Iraq and Afghanistan." The court rejected such a broad interpretation of the phrase "any individual," finding that the statute was intended to require a degree of specificity rather than refer to a large group.  While a petition for review by the Supreme Court was pending, Congress enacted a new amendment of FOIA that was specifically designed to exempt the detainee photographs.  All states have state law analogues to FOIA in the form of state open records acts.  Like their federal counterpart, these state laws have numbers of exemptions.       

B.  Access to Governmental Meetings

State open meeting laws, the Federal Sunshine Act, and the Federal Advisory Committee Act require that the meetings of most government bodies, but not legislative bodies, be held in public with certain exceptions.  Because of these statutory provisions, there is little case law on the issue of whether there is a constitutional right to be admitted to governmental meetings.              

C.  Access to Institutions

In Houchins v. KQED, Inc. (page 634), the Court considered a press claim of access to a high security area of a county jail that was not part of a public tour of the jail.  Like in Branzburg, the Court’s 3-1-3 decision left confusion in its wake.  Three members of the Court ruled the press had no greater rights of access than members of the public, and the public had no guaranteed right of access to a jail which was not a public forum.  Therefore, the press had only a right not to be discriminated against, a right that was not violated under the facts of the case.  Three members of the Court ruled that both the press and the public had a guaranteed right of access to the jail, including areas that were not part of the public tour, but which had been the subject of public controversy.  One member of the Court, Justice Stewart, ruled that the press, as the eyes and ears of the public, had to be given equal access, but not identical access.  Equal access had to be interpreted flexibly to take into account the practical differences between the press and the public.  In the context of the jail, this would mean access at times other than the regularly scheduled tours as well as the right to use cameras and recording equipment.  However, such access did not means that the press had the right to tour a part of the jail that was not open to the public or the right to interview random prisoners encountered during the tour.  Again, as in the wake of Branzburg, some lower courts in interpreting Houchins, based on Justice Stewart’s concurring opinion together with the 3 dissenters, concluded that the Court had recognized some limited First Amendment right of press access to government facilities like jails, while others reached the opposite conclusion.

D.  Criminal Law Restrictions on Access

Just as the press has no First Amendment immunity to engage in tortious conduct as part of their newsgathering activities, there is also no immunity to commit criminal acts.  An example of criminal charges arising from newsgathering activities is found in City of Oak Creek v. Ah King (page 653) in which the court rejected a First Amendment defense to disorderly conduct charges stemming from illegal entry into a non-public area of an airport to attempt to take photographs of a crash site and a refusal to obey a police order to leave the area.  The attempt to argue that the journalist had a First Amendment right of access to gather information at the scene of a disaster, thus justifying his entry, failed.

E.  Discriminatory Access

Discriminatory access claims based on the exclusion of a particular reporter or group of reporters raise claims that can be successfully pursued as violations of both the free speech and procedural due process guarantees.  In Sherrill v. Knight (page 660), the White House granted press passes to members of the press who had congressional press credentials, resided in Washington, D.C., and who had a need to report regularly from the White House.  Having created a general right of access to members of the press, the decision to exclude a particular reporter as a security risk was subject to judicial scrutiny.  In its decision, the D.C. Circuit concluded that the Secret Service had to adopt and publish a clearly articulated standard for exclusion reflecting its compelling interest in security and had to provide excluded reporters with a written statement of the factual basis access for denial as well as an opportunity to respond.

Related to claims of unjustified exclusion from a press pool as in Sherrill are claims of retaliatory exclusion of particular reporters based on the fact that those reporters have written stories critical of the government.  If successful, such a claim will grant an excluded reporter the right to the same level of access as is granted other journalists.  However, the prohibitions on discriminatory and retaliatory denials of access do not prevent government officials from singling out particular reporters for one on one interviews and other forms of special access.  Discriminatory and retaliatory access prohibitions only apply where reporters as a group are granted access rights.

Unlike unwarranted exclusion of individual reporters, the government is free to grant access that favors certain categories of reporters.  These cases include cases where the government adopts a narrow definition of “the press,” and cases where the use of cameras and tape recorders are excluded while pen and paper are permitted.

X.  Access to Judicial Proceedings

A.  Access to Courtrooms

The major area in which the Supreme Court has recognized rights of access is in the area of access to the courtroom.  Since courts are considered to be public forums open to the public, press rights of equal treatment guarantee press access to judicial proceedings in most circumstances.  Judges can only bar public access to a courtroom in individual cases upon particularized showings of the need to protect important interests.  Among the important cases in this area are Nebraska Press Association v. Stuart (discussed in the context of prior restraints on page 116) and Richmond Newspapers v. Virginia (page 673) which recognized a First Amendment right to attend criminal trials.  In that case, the Court concluded that closure of a trial to protect the fair trial rights of a defendant was a means of last resort and that courts needed to make specific findings to support closure as well as consider alternative means that are available to protect the defendant’s rights.

The holding in Richmond Newspapers has been extended so that the Court has struck down a statute that required courtroom closure during the testimony of all minor victims of sexual offenses (Globe Newspaper Co. v. Superior Court - page 681).  While the Court agreed that the interests of individual minor victims might justify closure, it refused to uphold a categorical rule mandating closure in all such cases.  It concluded that the state’s interests could be protected on a case-by-case basis that assessed the need to protect a particular victim.  It also applied the holding of Richmond Newspapers to voir dire (Press-Enterprise Co. v. Superior Court (Press-Enterprise I) - page 682), and most recently, in Press-Enterprise Co. v. Superior Court (Press-Enterprise II) (page 684), to preliminary hearings.

In deciding whether to create a presumption of openness to a particular judicial proceeding, the Court has adopted a two factor test that looks at (1) whether the place and process has traditionally been open to the press and general public and (2) whether public access plays a significant positive role in the functioning of the particular process in question.  Under the standards the Court has developed in these cases, when there is a presumption of openness that “presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.  The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” (page 682).  To justify closure the judge must also consider other alternatives to closure that could protect the compelling interest at issue.  The test the Court applies is a form of strict scrutiny that closely resembles the test in Nebraska Press Assoc. v. Stuart.      

While the Supreme Court has not resolved the issue of whether there is a right of access to attend civil trials, some statements by the Court (see page 676, footnote 17) suggest that the Court would find a tradition of openness in the context of civil trials just as it has with criminal trials.  By contrast, the Court has commented that there is no tradition of openness when it comes to grand jury proceedings which traditionally are conducted in secret.  Other types of proceedings where the media has sought access to closed proceedings include immigration hearings, juvenile proceedings, and custody proceedings.  The judicial decisions in these cases reach conflicting results largely depending on whether or not the court concludes there is a tradition of openness with regard to the type of proceeding at issue.

In addition to general claims of press access, specific claims of the right to photograph and broadcast judicial proceedings are sometimes asserted to challenge restrictions on those forms of press coverage.  These claims generally are unsuccessful.  However, most states permit either still photography or television broadcast in courtrooms under certain conditions.  The federal judicial system has been much less hospitable to cameras, preventing them altogether in criminal proceedings and allowing local rules to control access to civil proceedings.

B.  Access to Jurors and Witnesses

Access to jurors and witnesses involves the related issues of whether the press have a right of access to interview jurors and witnesses and whether jurors and witnesses have a First Amendment right to speak to the press if they desire.  The cases on the first of these issues have utilized the methodology of the courtroom access cases.  The cases on the second of these issues rely on a variety of approaches including relying on Gentile v. State Bar (page 127) as well as the courtrooms access cases.

XI. Newsgathering Torts

A.  Trespass

A trespass is committed when a person enters onto property in the possession of another without authorization or consent.  In cases where the press is sued based on a trespass theory, a typical issue that arises is whether there has been authorization or consent.  In some cases, courts have found consent based on a theory of implied consent (Florida Publishing Co. v. Fletcher - page 501 - consent to enter given by fire marshal) even if the consent was given by a law enforcement officer rather than the owner of the property, while other courts have rejected this form of consent.  Another consent issue arises where the press enters property open to the public, but for a purpose that is different than the purpose for which the public is permitted entry (Le Mistral, Inc. v. CBS - page 502).

In Food Lion, Inc. v. Capital Cities/ABC, Inc. (page 547), the court considered whether consent to enter given to an employee was voided due to misrepresentation on a job application and rejected that claim.  However, the court found that the jury could find a trespass had occurred by the reporters/employees filming in non-public areas of the supermarket, because these were wrongful acts in excess of their consent to enter.

B.  Invasion of Privacy

There are 4 branches of the law of privacy: intrusion, public disclosure of private facts, false light invasion of privacy, and appropriation of image or personality.  The cases in this section of the casebook only dealt with the first two of these 4 privacy torts.

1.  Intrusion  

The tort of invasion of privacy by intrusion occurs when the following two elements are satisfied: 1) intentional intrusion into a private place, conversation or matter; 2) in a manner highly offensive to a reasonable person.  The defenses usually offered by the press in such cases are that the plaintiff had no reasonable expectation of privacy or that the intrusion was not highly offensive.  In Dietemann v. Time, Inc. (page 503), the Ninth Circuit found the defendants had committed the tort of intrusion when a reporter gained entry to plaintiff’s home through a subterfuge and secretly made a recording of the conversation with the plaintiff as well as surreptitiously took pictures.  The court found the plaintiff had a reasonable expectation of privacy even though the den, where the conversation took place, was also used to conduct business.  The court also concluded that the First Amendment rights of the media would not be violated by a finding of liability since the Constitution did not immunize the press from tort liability for actions taken in the course of newsgathering activities.

In Shulman v. Group W. Productions, Inc. (page 514), the Supreme Court of California considered whether intrusion into a private place can occur when the plaintiff is not at home, in a hospital room or other place where privacy rights are recognized.  While the court rejected a claim that privacy rights existed at an accident scene that could be viewed from a public highway, the court found triable issues as to the existence of privacy claims in the context of the interior of a rescue helicopter transporting the plaintiff to the hospital and conversations with medical personnel at the accident scene that were secretly recorded.  On the issue of offensiveness, the court considered the investigative methods used by the defendant, putting them on a continuum of methods that started with routine reporting techniques such as questioning people and extending to highly offensive methods like tapping a personal phone line, in light of the extent of public interest in the story.  A similar approach to offensiveness is found in Deteresa v. ABC, Inc. (Page 520) where the court found the conduct, photographing the plaintiff standing in her doorway from a location on a public street and recording a conversation after revealing that the defendant was a member of the press, not to be an intrusion because it was not sufficiently offensive.

An issue as to whether the tort of intrusion can occur in a workplace setting where the plaintiff’s conversations can be overheard by co-workers, although not by the general public, was raised in Sanders v. ABC, Inc. (page 530).  The court refused to rule categorically that intrusion cannot occur in such a setting when a reporter secretly records conversations.  Instead, it held that whether intrusion occurs in a such a setting depends on the existence of a reasonable expectation of privacy.  “Whether a reasonable expectation of privacy is violated by such recording depends on the exact nature of the conduct and all the surrounding circumstances.”  Moreover, liability also takes into account the offensiveness of the conduct.         

In addition to issues of liability, there are also remedial issues including whether there are First Amendment limits on the ability to recover damages.  Some courts have allowed damages to be based on injuries stemming from publication, even though publication is not an element of the tort of intrusion, while other courts have found such damages to be precluded by the First Amendment.  Compare Dietemann (page 505) and Sanders v. ABC, Inc. (page 535), allowing recovery for damages stemming from publication, with Food Lion, Inc. v. Capitol Cities/ABC, Inc. (page 553), precluding recovery for damages stemming from publication in the context of a suit for trespass and breach of the duty of loyalty, both non-reputational torts like intrusion.  

Another remedial issue arising in the invasion of privacy context is whether an injunction against intrusive newsgathering activities can be issued.  Even though such an injunction does not directly ban publication, courts issuing such injunctions must make sure that the injunction does not restrain legitimate newsgathering activities in places where there is no reasonable expectation of privacy (Galella v. Onassis - page 506).   

2. Public Disclosure of Private Facts

The elements of the privacy tort of public disclosure of private facts include: 1) public disclosure; (2) of a private fact; (3) which disclosure would be highly offensive to a reasonable person; and (4) which is not of legitimate public concern.  Defenses are available where any of the 4 elements of the tort are absent: there is no public disclosure, the fact disclosed is not a private fact, the disclosure is not highly offensive to a reasonable person and the disclosed fact is newsworthy and therefore of legitimate public concern.

In describing the nature of the private facts that it would highly offensive to a reasonable person to disclose, one court described such facts as “intimate physical details the publicizing of which would be not merely embarrassing and painful, but deeply shocking to the average person subject to such exposure.” To justify the revelation of such facts, the private facts revealed must be sufficiently related to a matter of public concern to justify their disclosure.  In Shulman v. Group W Productions Inc. (page 514), the Supreme Court of California dismissed a claim for public disclosure of private facts because the broadcast of a program about the crew of a rescue helicopter and medical transport who rescued the victim of a car accident was “newsworthy as a matter of law.”

C. Constitutional Torts

While the private press, acting alone, is not subject to constitutional standards since the Constitution only operates to limit the actions of government, situations in which the press acts in concert with law enforcement officers complicate this issue.  In Wilson v. Layne (page 509), the Supreme Court found that law enforcement officers violated the Fourth Amendment when they allowed a reporter and photographer to accompany them into a home early in the morning to arrest a fugitive pursuant to a warrant.  Since the presence of the journalists was not to aid in the execution of the warrant, it served no legitimate law enforcement purpose related to the arrest and violated the Fourth Amendment.

While Wilson did not involve the liability of the media, this issue has arisen in the lower courts.  In some cases of ride-alongs or other cooperative ventures between the police and the press, courts have found the joint activity of the press and the government sufficient to create state action and therefore make the press liable under the Constitution.  Other courts have rejected the view that the media was acting under color of state law when it accompanied the police because the media and the police had different objectives in participating in the activity at issue and therefore were not acting in concert in a constitutional sense.

D. Eavesdropping and Wiretapping

Eavesdropping and wiretapping statutes are explored in several decisions.  In Deteresa v. ABC, Inc. (page 520), the California eavesdropping statute (an all-party consent statute) was found not to apply even though the plaintiff had not consented to the recording because the recorded conversation was found not to be a confidential communication.  A similar result is found in Sanders v. ABC, Inc. (page 530).   While liability is possible under all-party consent statutes such as exist in California, Maryland, Michigan, and Florida, defenses may be available to media defendants.  As in Deteresa and Sanders, the principal defense to liability under such statutes is that the conversation was not confidential or private.

Unlike the all-party consent statutes, the federal Wiretap Act (18 U.S.C. § 2511. Interception and disclosure of wire, oral, or electronic communications prohibited) (“It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception . . . .”), and many state statutes are one-party statutes so that the eavesdropping or wiretapping is legal if it is done with the consent of one-party to the conversation (so long as it is not done to commit a criminal or tortious act).  Therefore, a reporter who tapes a conversation to which the reporter is a party is not acting in violation of these statutes.

In addition to liability for gathering information, eavesdropping and wiretapping statutes can also be used to impose liability for using information acquired by the wrongful acts of others.  In Bartnicki v. Vopper (page 537), the Supreme Court rejected an effort to impose liability under both federal law (“intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication”) and state law for the use of wrongfully obtained information on very narrow grounds.  In a plurality opinion, Justice Stevens balanced the interests in protecting privacy against the interests in the publication of truthful information of public concern, finding that the public had an interest in the conversation at issue, and that the balance tipped in favor of the First Amendment.  The plurality’s approach involved a form of strict scrutiny review even though the statute at issue was a content-neutral law of general applicability because the statute was characterized as a regulation of pure speech.  A crucial concurring opinion found against liability on the narrower ground that the users of the information “neither encouraged nor participated directly or indirectly in the interception,” the speakers had minimal privacy interests, and the public had significant interests in disclosure because the conversation revealed a threat to public safety and the speakers were limited public figures.  The dissent would have upheld the application of the statute using the intermediate scrutiny test.  The Court in Bartnicki distinguished cases where the media defendants participated in the interception.

While Bartnicki resolved one as-applied challenge to the constitutionality of the disclosure provision of the Wiretap Act, it did not fully explore the scope of the knowledge requirement under federal law because, in the procedural posture of the case, the Court accepted the plaintiff’s submission that the defendants had “reason to know” that the conversation was recorded illegally.  Under federal law, liability is imposed for disclosing information “knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication.” Since the statute only requires knowledge and not participation in the illegal recording, it allows culpability even if the press acquired the information lawfully in the way in which that term has been interpreted by Landmark Communications and Smith v. Daily Mail.  The Supreme Court has not yet considered the knowledge provision as applied to cases where the press remains deliberately ignorant of the source of the recording and cases where the press lacks specific knowledge, but knowledge can be implied or imputed.        

E.  Duty of Loyalty

In Food Lion, Inc. v. Capital Cities/ABC, Inc. (page 547), the Fourth Circuit held that the defendants, reporters working undercover as Food Lion employees, could be liable for a breach of the duty of loyalty by exposing Food Lion’s unsanitary and deceptive meat handling practices to the public.  In engaging in this conduct, the employees “served ABC’s interest, at the expense of Food Lion” and failed to serve Food Lion faithfully.  Despite this holding, the court refused to allow Food Lion to recover for damages stemming from publication due to First Amendment limits on liability.