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How the Web Was Won

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Subject: Your First Amendment Handbook From: Reporters Committee Date: Thu, 29 Jun 1995 09:02:33 -0400
Subject: Your First Amendment Handbook From: Reporters Committee Date: Thu, 29 Jun 1995 09:02:33 -0400

How the Web Was Won
Subject: Your First Amendment Handbook From: Reporters Committee Date: Thu, 29 Jun 1995 09:02:33 -0400
Status: RO X-Status: The Reporters Committee for Freedom of the Press FIRST AMENDMENT HANDBOOK --------------------------------------------------------------- CONTENTS ======== Introduction I. Surreptitious Recording II. Access to Courts III. Gag Orders IV. Access to Places V. Freedom of Information Acts VI. Confidential Sources & Information VII. Libel VIII. Invasion of Privacy IX. Prior Restraints X. Copyright Endnotes --------------------------------------------------------------- Please note that this handbook was printed in 1992, and reflects the state of the law at that time. The 1995 edition will be available in September 1995, in Windows Help format, plain text and printed form. Contact the Reporters Committee at 703-807-2100 for more information. Copyright 1986, 1989, 1992 by The Reporters Committee for Freedom of the Press. All rights reserved. No part of this publication may be reproduced in any form or by any means without the prior, written permission of the publisher. Published by The Reporters Committee for Freedom of the Press, 1101 Wilson Blvd., Suite 1910, Arlington, Virginia 22209. (703) 807-2100. Internet: rcfp@cais.com If you have access to the Internet, you can also use our mailbot. Send mail to rcfp@cais.com with REQUEST HELP as the Subject line. INTRODUCTION ============ The law affecting the news media is changing all the time - and not always for the better. No one can predict what the next assault on freedom of the press will be. Now more than ever, journalists must be familiar with their First Amendment rights, and be prepared to defend them when necessary. In 1986, the Reporters Committee introduced the first edition of The First Amendment Handbook. Our aim was to create a basic primer on laws affecting journalists' rights to gather and disseminate the news, summarizing the principles of libel, invasion of privacy, court access and access to news events, in easy-to-understand language. Thousands of copies of The First Amendment Handbook have been distributed to reporters, media lawyers, educators and students throughout the country. Hundreds of copies have helped guide journalists and lawmakers in the emerging democracies in Central and Eastern Europe, Latin America, and Asia. We're proud that our little book has helped increase understanding of the principles that ensure a free press throughout the world. But during the past few years, as the result of shifts in the Supreme Court, First Amendment law has changed significantly. For example, the high court declared that there is no special privilege in libel law for speech that is labeled "opinion." It upheld a gag order prohibiting CNN from broadcasting lawfully obtained material until it was cleared by a judge. It said the First Amendment does not bar confidential sources from suing news organizations that identify them without their permission. The states are also grappling with these issues. Arcane laws recognizing the concept of criminal libel, or prohibiting publication of sexual assault victims' names, have been dusted off and used aggressively against the news media. New laws to limit access to government information spring up in state legislatures. Courts are re-examining the question of whether journalists enjoy a constitutionally based privilege to protect unpublished sources and information. For a variety of reasons, journalists in the United States are once again going to jail rather than surrender their First Amendment principles. Obviously, a booklet like this can never substitute for legal advice from a news organization's attorney, or from the staff of the Reporters Committee. But we believe that the Third Edition of The First Amendment Handbook will, like its predecessors, find a useful place in the pockets and purses of the working press, both at home and abroad. Think of it not as the definitive answer to every question, but rather as the first line of defense. The Reporters Committee would like to acknowledge the assistance of its summer 1992 legal fellows and interns in preparing this updated version of The First Amendment Handbook: Philippe de Pontet, Gregg P. Leslie, Stephanie L. Monson, and Joseph Schuman. They built on the good work of Linda Ammons, Bruce Carter, Laurie Edwards, Seth Goodchild, Gwendolynne Larson, Gail Malone, Mary Mulvihill, Amy Myers, Kathleen Ovack, Carole Paling, Julie Ryan, Maya Weisman, and Donald Winingham, fellows and interns who contributed to previous editions of the booklet. Our sincere thanks to all of them. ABOUT THE REPORTERS COMMITTEE ============================= More than a thousand times a year, journalists and their lawyers call The Reporters Committee for Freedom of the Press for fast, free legal help and research. When a free-lance reporter is subpoenaed and doesn't have the resources to hire a lawyer, the Reporters Committee turns to its roster of attorneys around the country willing to do free First Amendment work. No reporter has ever been charged for legal help from the Reporters Committee. Legal defense is the Committee's highest priority; for many reporters, there simply is nowhere else to turn. The Reporters Committee was founded in 1970, spurred by the plight of then-New York Times reporter Earl Caldwell. In 1969, a federal grand jury subpoenaed Caldwell, demanding that he reveal sources within the Black Panthers organization. A group of working journalists met in Washington in March 1970 to discuss forming an organization to help reporters protect sources and information. Among those present at the creation - or soon after - were J. Anthony Lukas, Fred Graham, Jack Nelson, Murray Fromson, Ben Bradlee, Eileen Shanahan, Mike Wallace, Robert Maynard and Tom Wicker. A nonprofit organization, the Committee operates solely on donations and the sale of publications. For a list of our publications, send e-mail to rcfp@cais.com or write to the Reporters Committee, Suite 1910, 1101 Wilson Blvd., Arlington, VA 22209. -------------------------------------------------------------- CHAPTER I SURREPTITIOUS RECORDING ======================= Some reporters regard tape recorders and cameras as intrusive devices that all but ensure that interviewees will be uncooperative. To others, they are invaluable newsgathering tools that create important documentary evidence of a conversation. News organizations frequently adopt policies regarding surreptitious use of these newsgathering tools. It is critical that reporters and their respective news organizations know the state and federal laws that govern the use of cameras and tape recorders. The summary that follows is intended as an introduction to those laws. You may record, film, broadcast or amplify any conversation if all parties to it consent. It is always legal to tape or film a face-to-face interview when your recorder or camera is in plain view. In these instances, the consent of all parties is presumed. Of the 50 states, 35 states, as well as the District of Columbia, allow you to record a conversation to which you are a party without informing the other parties you are doing so. Federal wiretap statutes[1] also permit one-party-consent recording of telephone conversations in most circumstances. There are six states without wiretap statutes[2] and nine states which require the consent of all parties to the conversation. The federal law, passed in 1968, permits surreptitious recording of conversations when one party consents, "unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State." Amendments signed into law in October 1986 expand the prohibitions to unauthorized interception of most forms of electronic communications, including satellite transmissions, cellular phone conversations and computer data transmissions.[3] Amendments have been proposed to require consent of all parties to the conversation and beep tones to alert the other party that the conversation is being recorded. Most of the states have copied the federal law, some expanding on the federal law's language and prohibiting all surreptitious recording or filming without the consent of all parties. Some state statutes go even further, prohibiting unauthorized filming, observing and broadcasting in addition to recording and eavesdropping, and prescribing additional penalties for divulging or using unlawfully acquired information, and for trespassing to acquire it. In most states the laws allow for civil as well as criminal liability. Many of the state statutes make possession of wiretapping devices a crime even though one party consent to taping conversations may be allowed. Most of the state statutes permit the recording of speeches and conversations that take place where the parties may reasonably expect to be recorded. Most also exempt from their coverage law enforcement agencies and public utilities that monitor conversations and phone lines in the course of their businesses. In general, state statutes apply to conversations that take place within the same state. Federal law applies to conversations between two states. Federal law generally applies when the conversation is between parties in states with conflicting eavesdropping and wiretapping laws, although either state may also choose to enforce its laws against a violator. If a reporter in a state without an eavesdropping law calls a party in a state that requires two-party consent and tapes the conversation surreptitiously - which is legal under federal law - a state with tough laws prohibiting unauthorized recording may choose to apply its laws regardless of the location of the caller or the existence of a preemptive federal statute. Unfortunately, it is still unclear whether courts will hold that the federal protection preempts the state law. It is important to know your state law and the law in the state into which you call before you record surreptitiously. The Federal Communications Commission has also adopted a policy, known as the "Telephone Rule," requiring that before a reporter tapes a telephone conversation that will later be broadcast, he or she must inform the other party that it is being taped for broadcast.[4] EAVESDROPPING AND WIRETAP STATUTES Under Alabama law,[5] installing an eavesdropping device in a private place, knowing it will be used to overhear a private conversation, is a Class C felony. Trespassing to install an eavesdropping device is a Class B misdemeanor. California has wiretap and eavesdropping statutes[6] carrying maximum penalties of $2,500 fines and one year in prison. The eavesdropping statute makes it illegal to use electronic amplifying or recording devices to listen to or record a conversation without the consent of all parties. The statute makes illegally-acquired recordings inadmissible as evidence in court. California's laws have been applied strictly to protect the privacy rights of unwary subjects. Delaware's eavesdropping law[7] prohibits the installation or use of any device that records, amplifies or broadcasts private conversations in private places without the consent of the parties. The wiretap statute makes it illegal to intercept electronically any wire communication (telephone, telegraph, etc.). Neither statute prohibits listening in on an extension phone. Both laws prohibit the unauthorized use or disclosure of any illegally obtained information. Violation of the eavesdropping statute is a second degree misdemeanor. Violation of the wiretap law carries a prison sentence of up to seven years and/or a fine determined by the court. Florida's eavesdropping law[8] prohibits tape recording of telephone conversations without the consent of all parties. It is against the law for one who knows information was illegally obtained to use or disclose it. Court cases have extended the law to prohibit listening in on an extension phone without the consent of at least one party to the conversation. In 1977, a Florida court rejected a claim that the statute unduly restricted the media's newsgathering abilities. Violation of the statute is a third degree felony. Georgia's eavesdropping statute[9] makes it illegal to intentionally and secretly overhear, transmit or record a private conversation in a private place. Georgia courts have interpreted the law to permit a party to a conversation to record it without the other party's consent.[10] Illegally obtained information is inadmissible in court. Violations are punishable by fines of up to $10,000 and/or prison terms of up to five years. Hawaii's broad privacy statute[11] makes it illegal to install without consent any device for hearing, recording, amplifying or broadcasting sounds originating in a private place. The law further prohibits trespassing to install eavesdropping and recording devices, intercepting messages transmitted by telephone, telegraph, letter or other means of private communication, or divulging any unlawfully acquired information. Violation is a misdemeanor. Statutes in Illinois[12] prohibit the eavesdropping or recording of a conversation without the consent of all parties, and forbid the use or disclosure of illegally obtained information. Illinois courts have established exceptions to the laws, however, for circumstances involving matters of legitimate public interest. Kansas[13] statutes prohibit the installation or use of any device for hearing, recording, amplifying or broadcasting sounds in a private place if the sounds could not ordinarily be heard and the person or people in the place do not consent. A privacy law prohibits the unauthorized interception of a telephone conversation or other private communication without the consent of either the sender or receiver. The statute does not apply to the use of an extension telephone. The Kansas Supreme Court has held that the law allows the recording of a conversation if only one party consents.[14] In Louisiana[15] a statute prohibited eavesdropping on or recording a conversation without the consent of all parties. However, in 1989 the state Supreme Court found that portion of the law unconstitutional.[16] In Maine,[17] the unauthorized installation or use of any device for recording, amplifying or broadcasting sounds in a private place is a Class D crime. The law also prohibits the unauthorized use or installation of a device outside a private place if the device will overhear or record sounds not ordinarily audible from outside. Maryland's law[18] also prohibits electronic eavesdropping and recording of conversations without the consent of all parties, and makes unauthorized use or disclosure of illegally obtained information illegal. Violators may be imprisoned for up to five years and fined up to $10,000. Maryland courts have held that the statute does not apply to unassisted eavesdropping (that done without electronic devices) or to eavesdropping on an extension phone. In Massachusetts,[19] anyone who secretly hears or records any conversation without the consent of all parties can be fined up to $10,000 and imprisoned for up to five years. Use or disclosure of illegally acquired information is punishable by a fine of up to $5,000 and/or a prison term of up to two years. Illegally obtained information can be suppressed in court upon a criminal defendant's request, and can give rise to civil liability including actual and punitive damages and attorney's fees. In Michigan,[20] overhearing, amplifying, transmitting or recording a private conversation is punishable by a fine of up to $2,000 and imprisonment for up to two years. The Michigan Court of Appeals has interpreted the statute to authorize wiretapping with the consent of one party to the conversation.[21] It is a felony to install an eavesdropping or recording device on private property or to divulge unlawfully obtained information. Montana's[22] statute sets a maximum $500 fine and six months in jail for any person who secretly records a conversation without the consent of all parties. In New Hampshire,[23] any person who uses an electronic device to overhear a conversation without the consent of all parties, or uses or divulges any information so obtained, is subject to a maximum $10,000 fine and five years in jail. A second New Hampshire law prohibits the unauthorized installation or use of any eavesdropping or recording device inside a private place, or outside a private place, when the device will record or overhear sounds not generally audible from outside. The law also makes it a misdemeanor to intercept, without the consent of the sender or receiver, a message transmitted by telephone, telegraph, letter or other private means of communication. Oregon's[24] statute permits the recording of telephone and cellular phone conversations (called telecommunications and radio communications, respectively, in the statute) with the consent of one party to the conversation. However, the recording of "conversations" without warning all participants is illegal. A conversation is any transmission between two or more people that is not a telecommunication or radio communication. Violations are Class A misdemeanors. In Pennsylvania,[25] it is illegal to listen to or record any wire or oral conversation, without consent, using an electronic or mechanical device, or to use or disclose illegally obtained information. Violations are punished as third degree felonies. Under South Dakota[26] and Utah[27] law, trespassing with intent to eavesdrop, or installing an eavesdropping device in a private place without the consent of all parties, is a misdemeanor. Utah law also prohibits the unauthorized installation of eavesdropping and recording devices outside private places when the device will overhear or record sounds not generally audible from outside. Utah's law prohibits the unauthorized interception of messages transmitted by letter, telephone, telegraph or other means of private communication. Washington's[28] law makes it illegal to record any private telephone, telegraph or radio communication or oral conversation without the consent of all parties. STATE HIDDEN CAMERA STATUTES The laws of nine states expressly prohibit the unauthorized installation or use of cameras in private places. In Alabama[29], Delaware[30], Georgia[31], Hawaii[32], Maine[33], Michigan[34], New Hampshire[35], South Dakota[36] and Utah[37] installation or use of any device for photographing, observing or overhearing events or sounds in a private place without the permission of the people photographed or observed is against the law. A private place is one where a person may reasonably expect to be safe from unauthorized surveillance. Alabama, Delaware, Georgia, Hawaii, Maine, Michigan and South Dakota also prohibit trespassing on private property to photograph or observe people there. In most of these states, unauthorized installation or use of a hidden camera, or trespassing to install or use one, is a misdemeanor, punishable by fine. In Maine, the privacy violation is a Class D felony. In Michigan, unauthorized installation or use of a hidden camera is a felony, punishable by a $2,000 fine and up to two years in prison. CHAPTER II ACCESS TO COURTS ================ A judge in Detroit abruptly barred reporters from taking notes in a highly publicized criminal trial in early February 1992 because she thought such activity intimidated the jurors. The judge also ordered a deputy to seize the notes of one reporter and to eject her from the remainder of the trial. Fortunately, lawyers for the news media filed an emergency petition with the Michigan Court of Appeals, which promptly overturned the order.[38] The appeals court's quick ruling in the case exemplifies the growing recognition by most appellate courts that the rights of the news media and public to attend criminal court proceedings are well established. The U.S. Supreme Court has ruled that criminal pretrial proceedings, jury selection and trials are presumed to be public under the First Amendment.[39] Lower federal courts have ruled that the reasoning of these decisions applies with equal force to post-trial proceedings, such as sentencing hearings.[40] The Supreme Court has never decided whether the public has a First Amendment right to attend civil proceedings. However, several federal appeals courts and state courts have held that civil cases are presumed to be public under the First Amendment as well.[41] The high court also has not decided whether the public has a constitutional right to attend juvenile court proceedings. The rules under which access is allowed vary, and can usually be found in your state's statutes governing juveniles or family courts. Federal appellate and state supreme courts have also ruled that the First Amendment protects your right of access to court documents, particularly those placed in evidence or filed with the court, which are considered by judges and juries in reaching decisions.[42] Appeals courts have also ruled that the First Amendment gives the public a right of access to names and addresses of jurors.[43] In the early stages of an investigation, search warrants and supporting affidavits may be kept secret even though they have been filed with the court clerk. Federal courts have ruled that the government's interest in protecting an ongoing investigation outweighs the public's common law right of access to search warrants and supporting affidavits.[44] Civil discovery documents that are not placed in evidence present access problems because they are not part of the official court record. At least two federal circuits have held that discovery documents filed with the court are presumed public under the Federal Rules of Civil Procedure, rather than the First Amendment.[45] The rules of many courts do not require that discovery materials be filed, and in those jurisdictions you may have great difficulty gaining access to them. However, at least three states have adopted rules that are intended to prevent wholesale secrecy of discovery materials filed in civil cases.[46] You may also have problems gaining access to documents and exhibits used in a case but then returned to the parties at the conclusion of the litigation.[47] Therefore, do not delay in asking to examine evidence. The U.S. Supreme Court has ruled that the media do not have a First Amendment right to copy exhibits.[48] Some courts have read this decision broadly to mean that you do not have a First Amendment right to even examine exhibits, ruling that the right of access to evidence and other documents is based in common law. This makes it much easier for a party advocating secrecy to overcome a media request for access. The U.S. Supreme Court has also ruled that the First Amendment right of access to judicial proceedings is not absolute.[49] A courtroom may be closed to protect a compelling state interest, such as the defendant's right to a fair trial, when no alternative to court secrecy will protect that interest.[50] However, any closure must be narrowly tailored to protect the interest without due infringement on the public's right of access, and the judge must determine that closure will effectively protect the interest. If there has already been a substantial amount of news coverage of the case, and coverage the hearing would merely be cumulative, then closure is unwarranted. In criminal cases, the interest most often sought to be protected by secrecy is the defendant's right to a fair trial by an impartial jury. However, general fear that publicity will jeopardize a defendant's right to a fair trial is usually insufficient to close a criminal proceeding.[51] In addition, sometimes judges consider closing proceedings to protect the privacy of witnesses or jurors, or to protect witnesses, notably sexual assault victims and children, from the emotional trauma of testifying in public. Constitutional protection afforded civil litigants is not as broad as that enjoyed by criminal defendants. Nonetheless, civil litigants often argue that publicity will jeopardize their fair trial rights. Parties in civil cases may argue also that trade secrets, confidential business information or other private matters will be revealed in a proceeding. They may say that the proceeding should be closed or documents sealed to prevent competitors or others from acquiring this sensitive information. CAMERAS AND RECORDING EQUIPMENT The U.S. Supreme Court held in 1981 that the states may adopt rules permitting cameras and recording equipment in their courts.[52] Since then, 46 states have done so, but the rules vary widely. In some states visual and audio coverage is permitted in all types of court proceedings that are public, and in others such coverage is permitted only in appellate courts. A three-year experiment allowing cameras in federal courts in civil proceedings began in July 1991. Two U.S. courts of appeals and six federal trial courts are participating. For detailed information about visual and audio coverage of courts in a particular state, contact the Reporters Committee. YOU HAVE A RIGHT TO OPPOSE SECRECY The U.S. Supreme Court's decisions make clear that a judge considering closing a judicial proceeding must follow certain procedures to ensure that secrecy will not infringe upon First Amendment rights. The judge must hold a hearing on the need for secrecy at which the media and others may argue against closure. If a compelling interest such as the criminal defendant's fair trial right is at stake, the judge must consider alternatives to court secrecy. Among these are close questioning of prospective or seated jurors concerning their exposure to prejudicial information, and sequestration of the jury. The judge must also consider changing the venue of the trial or bringing in jurors from another part of the state, and postponing the trial until the effects of publicity have diminished. A judge who determines that no alternative will work must also determine that secrecy will protect the party's interest and must tailor the closure order to protect that interest without unduly restricting public access. Finally, the judge must present written findings supporting the closure decision. The U.S. Supreme Court has held that this is necessary so that an appeals court can evaluate the propriety of the closure.[53] WHAT YOU SHOULD DO Advance knowledge and planning is very important in court closure cases. Try to anticipate a closure. It may be easier to prevent a closure than to convince the judge to reopen a hearing once it has been closed. Find out whether any party in the case has or plans to file a closure motion. If so, consult your editor and determine whether the news organization's lawyer should prepare to oppose the motion immediately. If a judge orders you to leave a hearing that has so far been public, you may have to take immediate action. If you know that your news organization is prepared to send a lawyer into court to argue against courtroom secrecy, politely ask the judge if you may speak for a moment. Once you have been acknowledged, tell the judge that your news organization would like an opportunity to argue against closure. Ask for a brief recess so that you can arrange for a lawyer to come to court to argue your case. It may bolster your credibility if you can tell the judge the name of the lawyer who will appear. Realistically, you cannot rely on obtaining more than a couple of hours delay. Often the judge will refuse to halt the case, although he or she may agree to listen to arguments when your lawyer arrives in court. If the judge will not let you speak and orders the courtroom cleared, do not refuse to leave. If you stand your ground or shout your objection you may be arrested or cited for contempt. Leave the courtroom. Write a brief note to the judge explaining that your news organization wants to oppose the closure and that you will contact your editor or lawyer immediately. Ask a court officer to give the note to the judge. Get in touch with your superiors promptly. If you learn that a secret court proceeding is in progress or has already been held, try to determine: * Who sought closure and on what grounds: to protect fair trial rights, trade secrets or other confidential information or privacy. * The nature of the proceeding: civil or criminal; whether it is a trial, pre- or post-trial hearing or appeal. * Whether the judge held a hearing on closure and, if so, what findings were made justifying secrecy. * Whether the proceeding is still going on. Consult your editor about challenging the closure. If you decide to seek access to the proceeding, or to a transcript if the proceeding has concluded, the simplest and most direct approach is to request a meeting with the judge. Pointing out the procedural requirements mandated by the Supreme Court may be sufficient to convince the judge to reconsider the closure. In addition to requesting access to future proceedings, you should ask the judge to make available transcripts of past proceedings and any documents that may have been introduced at them. You might be able to convince the judge to give you the transcript because you were deprived of access to a hearing that should have been public. Be prepared to pay for it. On the other hand, if the judge has decided to go forward in secrecy, you will need assistance from your organization's lawyer. The U.S. Supreme Court and other courts ruling in court access cases have said that it is appropriate for the media to intervene in a criminal or civil case for the limited purpose of exercising their First Amendment rights. In addition to filing a motion to intervene, your lawyer might file a motion seeking a stay of further proceedings in the underlying case until the access issue is resolved. If the judge denies the motion to intervene or, after hearing argument, continues holding closed proceedings, you may want to consider an appeal. Your lawyer will be able to advise you on the best method of obtaining expeditious review of the decision. CHAPTER III GAG ORDERS ========== In 1990, for the first time, the Supreme Court refused to void a gag order barring a news organization from disseminating material it obtained legally. The high court's actions raised serious questions about the continued vitality of its ruling more than 15 years ago in Nebraska Press Ass'n v. Stuart that orders prohibiting publication of information about court proceedings are unconstitutional in most cases.[54] The case arose when Cable News Network obtained tape recordings of telephone conversations between deposed Panamanian dictator Manuel Noriega and a number of people, including his attorneys, while he was in prison awaiting trial. Prison officials made the tapes. After learning that CNN planned to broadcast excerpts from the tapes, Noriega's lawyers asked the U.S. District Court in Miami to stop CNN from airing them. District Judge William A. Hoeveler issued a temporary restraining order, which was upheld by the U.S. Court of Appeals in Atlanta. Eight days after the appeals court's ruling, the Supreme Court in a brief order signed by seven justices refused to lift the gag order. In late November 1990, Judge Hoeveler vacated the ban on playing the tapes after he, Noriega's attorneys and prosecutors reviewed transcripts of them.[55] The CNN case raised troubling questions about the U.S. Supreme Court's historically strong stand against prior restraints on publication and the continued vitality of the Nebraska Press decision. However, even before the CNN case, courts had continued to issue gag orders against the media and, notwithstanding CNN, in almost all cases orders are quickly overturned on review.[56] More commonly, judges order parties to civil and criminal cases, their lawyers, prosecutors, witnesses, law enforcement officials and even jurors not to talk about the case. Frequently such orders are sought by one party in a case, although a judge may issue a gag order on his or her own initiative. They are frequently called "protective orders" by judges - necessary to protect a person's right to a fair trial, the fair administration of justice or the sanctity of jury deliberations. Regardless of what they are called or who initiated them, gag orders interfere with your efforts to gather news and disseminate it. "Prior restraints on speech and publication are the most serious and least tolerable infringement of First Amendment rights," the U.S. Supreme Court ruled in overturning an order prohibiting publication of information that reporters obtained at a public, criminal pretrial proceeding.[57] The Court has said that "(a)ny prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity."[58] The Supreme Court has said a fair trial can almost always be assured through less restrictive means, such as change of venue, trial postponements, careful examination of prospective jurors for signs of prejudice or sequestration of the jury. However, there may be circumstances in which reporters can be constitutionally prohibited from publishing information from judicial proceedings. The Supreme Court articulated a three-part test for judges to use in determining whether gag orders are permissible. Under it, the party seeking the order must show that the nature and extent of publicity about the case would impair Sixth Amendment rights, that no alternative means are available to protect the fair trial right, and that a gag order will protect the defendant's interest. Orders prohibiting participants in a case from commenting to reporters or the public present more complex problems. Such orders infringe on First Amendment rights of those individuals gagged. Private individuals involved in a case - plaintiffs, defendants and witnesses - probably cannot be gagged.[59] At least one court has ruled gag orders on trial participants are as serious as those on the press and that they should be subjected to the same strict test for constitutionality.[60] Judges may be able to control how the media contact trial participants, however. For instance, a judge in one case ordered that all court personnel, counsel, witnesses and jurors refrain from speaking directly to the media. Contact was to be channeled through a court-appointed liaison.[61] Courts cannot forbid post-trial access to jurors.[62] But a judge may be able to limit the scope of a reporter's inquiry into jury deliberations. For example, one judge barred reporters from asking any juror how other jurors had voted, and banned repeated requests for interviews after a juror had refused to be interviewed.[63] Orders prohibiting comment by lawyers in a case are another matter. Because the Supreme Court has faulted judges on several occasions for failing to control out-of-court statements by lawyers, trial judges are likely to limit lawyers' comments in highly publicized cases.[64] Several courts have ruled that such orders may prohibit statements on topics such as evidence to be introduced, the merits of the opponent's case and testimony future witnesses are expected to give. However, a total ban on lawyers' comments would be unconstitutional.[65] A state bar's code of ethics may also limit public statements by lawyers in a case. The U.S. Supreme Court let stand a state Supreme Court ruling that a lawyer can be disciplined under the ethics code for sharing information that was revealed in open court with the media.[66] In June 1991, the Supreme Court ruled in Gentile v. State Bar of Nevada that the standard for penalizing speech by lawyers involved in criminal cases can be lower than the standard for punishing speech by the media and the public.[67] The high court ruled that the Nevada rule governing lawyer speech, which prohibits a lawyer from making extrajudicial statements that the lawyer knows or should know "will have a substantial likelihood of materially prejudicing an adjudicative proceeding," does not violate the First Amendment. Police who investigated a crime may be barred from commenting on the evidence as well. WHAT TO DO IF A GAG ORDER IS ISSUED If a gag order is issued in a case you are covering, the first thing you should do is obtain a copy of it. If it is a written order, the court clerk should be able to provide a copy. If not, you may have to pay to have the court stenographer transcribe the judge's oral directive. It is imperative that you find out who is gagged and what restrictions have been placed on comment by the gagged individuals. It is also important to know the judge's justification for issuing the gag. Nuances in the language of the order may greatly affect whether it will be upheld on appeal. If the order prohibits you from publishing information you obtained during a court proceeding you attended, or information you obtained legally from a source outside the court, it is probably unconstitutional. Time is of the essence, and you should call your editor immediately to obtain legal counsel. If, instead, your sources have been gagged, you will need advice on whether you can challenge the order or whether the person directly affected by it must bring the challenge. Here, too, you will need the help of legal counsel. In some cases, a judge will lift or modify a gag order when told of the constitutional problems it poses. But a formal appeal may be necessary to protect your ability to cover a court case. CHAPTER IV ACCESS TO PLACES ================ Whether a reporter wants to cover a demonstration on the courthouse steps, a crime that occurred in someone's home or the execution of a condemned inmate, the first hurdle to overcome is access to the scene of the event. A reporter's success may depend on the kind of property to which access is sought. News events often occur in public forums - property that is publicly owned and open to the general public, such as city parks or sidewalks where demonstrations might take place. But government property that is not generally open to the public as a forum - such as courthouses, jails, government offices and city halls - is called non-public forum public property. Private property generally presents harder access problems than public property; in most situations, the property owner cannot be forced to allow a reporter to cover an event or interview an individual. However, some courts have drawn distinctions between private property used for a private purpose, such as a person's home, and private property used for a public purpose, such as a shopping center. Some states treat the latter as a type of public forum. JOURNALISTS' RIGHT OF ACCESS Although the U.S. Supreme Court has said newsgathering deserves some First Amendment protection, it has never clearly defined the scope of that protection, nor restrictions that may be placed upon reporters' activities. Most courts have ruled that the First Amendment provides journalists no greater right of access to property than that enjoyed by the public. Therefore, when an event occurs on non-public forum public property or private property, reporters may not have the right to enter if the general public is not usually allowed in. The U.S. Supreme Court has said repeatedly that a court contemplating denying access must weigh the public interest in obtaining information against competing interests. However, a minority of courts recognize that if the First Amendment right to publish depends upon the ability to gather news, then when the right to gather news is impeded, the media's ability to inform the public is diminished. Although state and local governments may not limit or deny the public or the media access to public forums, they may impose reasonable time, place and manner restrictions on activities taking place on public property. For example, a city government could reasonably grant a parade permit that restricted a group from marching through the business section of town at rush hour. But these restrictions must be content neutral, be narrowly tailored to serve a significant government interest, and leave open alternative channels of communication. ACCESS TO ELECTION POLLS In recent years, several states have passed exit polling legislation prohibiting reporters from interviewing voters within specified distances of voting places. But a federal court ruled the Washington state exit polling law unconstitutional because it had been passed specifically to prevent the media from projecting the outcome of elections.[68] A Minnesota judge struck down an exit poll statute forbidding reporters to question voters about ballot issues as a content-based restriction on speech about governmental affairs.[69] And while Florida's Supreme Court said the state could deny journalists access to polling places to ask questions or take photographs in order to prevent disruption, it said that officials had not substantiated claims that exit polling disrupted voting.[70] Government agencies have generally succeeded in limiting media access to non-public forum public property where they showed that newsgathering would interfere with the normal operation of facilities. ACCESS TO PRISONS AND PRISONERS One such situation arises when reporters seek access to prisons and prisoners. The media have a right of access to report on prisons in general. But prison officials' arguments that granting journalists interviews with specific inmates might allow some prisoners to gain "a disproportionate degree of notoriety and influence among their fellow inmates," have persuaded the U.S. Supreme Court to rule repeatedly that the media do not have a right to insist on interviewing specific inmates.[71] Acquire a copy of your state's department of corrections regulations. Most states' regulations indicate whom to speak with about access to prisoners. Reporters may be able to obtain state corrections department permission to interview particular inmates, and some journalists have overcome official resistance by contacting the inmate through the inmate's lawyer and asking to be put on the prisoner's visitor list. Executions are undeniably newsworthy events and present another access problem for journalists. A majority of states that allow capital punishment have statutes that specify how many witnesses may attend executions, who may select witnesses and whether reporters must be or may be selected. No states allow the use of photographic or recording equipment.[72] POLICE/PRESS GUIDELINES Law enforcement investigators often restrict media access to crime scenes on public and private property. Journalists who defy their orders may be charged with interference, disorderly conduct or criminal trespass. If convicted, they risk fines or imprisonment. Journalists who obey police orders may later file complaints or even lawsuits against the police department, but the opportunities to cover those newsworthy events will have passed. Some police departments and media organizations have devised written police/press guidelines covering the types of information that will be released, how it will be released and by whom. Some guidelines include rules for media access to crime scenes and procedures for issuing press passes for access to non-public areas. Police departments with established press pass systems are not allowed to decide arbitrarily who will receive passes and who will not. A reporter who is denied a press pass must be given reasons for the denial and a chance to appeal.[73] ACCESS TO PUBLIC BUILDINGS Journalists may also have problems gaining access to cover events in public buildings, including public auditoriums and sports arenas which have been leased for non-governmental functions. When municipally owned property is operated in a commercial rather than governmental capacity, the media have no special right of access beyond that afforded to the general public. For example, when Hartford, Conn., rented its civic center to the promoter of a figureskating championship, a U.S. District Court rejected a television station's claim that its First Amendment right to gather news was infringed because the promoter gave ABC the exclusive right to cover the competition.[74] However, a federal judge in Cleveland ruled that a state Democratic organization holding a convention in the city's civic center could not discriminate among journalists, admitting some and not others. The judge said that a private body leasing a government facility had the same constitutional obligations as the government.[75] ACCESS TO PRIVATE PROPERTY When news events occur on private property, reporters will usually need the permission of the property owner or public officials before entering, even when the event is a demonstration, a natural disaster, an accident or a criminal investigation. Whether you have to ask for permission depends largely on court decisions in your state. When an event is newsworthy, some courts have ruled, consent to enter will be "implied" if the property owner is "silent" or does not expressly order a reporter to keep out.[76] But other courts have said that consent to enter private property may never be implied.[77] In two recent Wisconsin cases, police officials invited reporters to accompany them when they went to residences to make drug arrests. Reporters entered the dwellings and took pictures. After the incidents, the owners sued the media organizations and police for trespass and invasion of privacy. The journalists were found to have trespassed.[78] You should consult your news organization's lawyer or the Reporters Committee about local precedent on the question of "implied consent" when neither property owners nor officials object to entry. Some occupants of private property may give consent, but their permission may be inadequate. A tenant may only be able to give consent to enter the portion of the property rented, not the entire area. In situations where reporters have been expressly forbidden access to private property, courts have ruled that the First Amendment does not grant immunity from arrest and prosecution to reporters who commit illegal acts while gathering news.[79] Private property that is open to the public, such as shopping malls, may be treated the same as public forums.[80] In 1980, the Supreme Court said that state constitutions may be interpreted to provide greater protection for expression, and therefore newsgathering, than the U.S. Constitution. It upheld a state's right to provide a broader right to engage in expressive activity in a shopping mall, even at the expense of the owner's property interest.[81] Since the Court's decision, several state appellate courts have ruled on questions of freedom of expression in shopping malls. Check with your news organization's lawyer or the Reporters Committee for the current status of shopping mall access in your state. WHAT TO DO IF YOU ARE DENIED ACCESS * If you are denied access to a place where a news event has occurred, you should first determine whether the place is a public forum (such as a city street or park), non-public forum public property (such as the county courthouse or jail) or privately owned property. * Find out who has denied access to you and the grounds for denial. * If the property is publicly owned, and if the restriction appears to be discriminatory, consider seeking a court order requiring that you be granted access or ordering officials not to deny access in similar situations in the future. * If the property is privately owned, and the restriction was imposed by someone other than the owner, it may be invalid. * If you are ordered to leave by the property owner, do so and contact your editor or news organization's lawyer. Disobeying an order to keep out may result in your arrest, a fine or a lawsuit by the owner. * If police in your area have press relations guidelines, find out what they say. If police issue press passes and grant access only to reporters who have them, obtain a pass. * Establish a "plan of attack" for dealing with access problems as they develop, providing names of legal advisers to be called and police officials and other contacts who may be able to facilitate access to the area. CHAPTER V FREEDOM OF INFORMATION ACTS =========================== Reporters gain useful insights into government operations at the local, state and federal level by reading government records or attending agency meetings. The working documents and proceedings of an agency can provide clues about all kinds of issues. For instance, answers to how the school board will effect budget cuts, why the state highway commission abandoned plans to run a new highway along a particular route, or what a federal task force discovered about the mortality rate in a community near an abandoned toxic waste site can be found in agency documents. Freedom of information or public records laws guarantee public access to documents in every state, the District of Columbia and at the federal level. Open meetings or "sunshine" statutes give the public the right to attend the meetings of commissions, councils, boards and other bodies. The laws vary from state to state.[82] Reporters should become familiar with their states' statutes and those at the federal level in order to fully exercise their rights. FREEDOM OF INFORMATION LAWS Under state and federal freedom of information laws, the physical form of the record is generally not an issue; computer records and electronic databases should be just as accessible as paper records. Neither the federal government nor any state maintains a centralized system of access to information, so requests must be made to the agency in possession of the documents you seek. The status of the agency determines what law applies. State and local agencies are covered by the state open records law. In most states, all government agencies are covered. In some, nongovernmental entities which receive public funds are also subject to the disclosure laws. Agencies of the federal government are covered by the federal Freedom of Information Act.[83] It does not cover other entities that receive federal funds. In many states, citizens may simply ask to inspect and copy agency records during regular business hours. In others, and in federal agencies, requests to see documents must be made in writing. It never hurts to make your request in writing, and to specifically mention that you are exercising your rights under the state or federal law. In that way, the custodian of the record, who will process your request, can better understand what you want and will give your request serious consideration. You may have to pay for the copies of records you receive. In some states you can be charged for the time it takes agency employees to locate the documents, in addition to the actual copying costs. Under the federal law and some state laws, reporters are entitled to partial or full fee waivers if their requests will directly benefit the public. The federal law automatically entitles reporters to a waiver of all search fees and the first 100 pages of copying. Reuqest the waiver in the record request and list your credentials to document your eligibility for the waiver. Most of these laws are based on the presumption that everything is public, unless specifically exempted. Some states specify certain categories of information that are always public. Most "exemptions" or exceptions to public access are subject to agency discretion, so you can always try to convince officials that it would be in the public's interest to release the requested information. Only a few specifically designated types of records are automatically confidential. The number and kinds of exemptions vary widely from state to state, but state and federal laws usually include exemptions protecting: * Personal privacy: some states have specific exceptions for personnel files and medical files. In other states these are covered by more general privacy exemptions. * Law enforcement and other investigative files: varying from blanket exemptions to ones like the federal statute, which permit information to be withheld only when some harm to the investigation or an individual involved would result from disclosure. * Commercially valuable information: usually provided by private companies to the government. This typically covers sensitive information in licensing or contract applications, for instance. * Predecisional documents: related to agency decision making. This exemption allows staffers to frankly and openly suggest and debate alternatives before an agency reaches a final decision. Final agency action, however, can rarely be withheld from the public. Other common exceptions at the state level cover information relating to government acquisition of real estate, library circulation records, civil service examinations and answer keys, and student records. The federal law also has exemptions for national security, information relating to banking or financial institutions, and oil and gas wells. Under the federal and all state laws, legislatures may enact specific statutes exempting additional classes of documents from the public access laws. If your request under these laws is turned down, ask the agency official under which exemption the information is being withheld. Most states require agencies to separate exempt information from non-exempt material. Therefore you may get a document in which certain information has been blacked out. Again, these deletions should be justified by reference to specific exceptions in the public records law or to some other state statute. In a few states and under the federal law, if your initial request is denied you must appeal to a higher official. In other states you must appeal to a special FOI appeals commission. In all states and at the federal level, you have the right to go to court to enforce your rights to obtain government information. SUNSHINE LAWS All states, the District of Columbia and the federal government have open meeting laws, often referred to as "sunshine laws," requiring that certain meetings of agency officials be open to the public. These laws do not necessarily ensure that members of the public can address the agency, but they guarantee that the public and the media can attend the meetings. At the federal level, these laws cover multimember agencies and federal advisory committees only. On the state and local levels, these laws apply to a variety of commissions, boards and councils. Generally, public access to meetings is guaranteed only when a quorum of members of a multimember group meets to discuss public business. Chance social or ceremonial gatherings of agency officials are usually not subject to these laws. However, merely having food at the meeting does not make it a social gathering if the agency is meeting to discuss public issues and make decisions.[84] The statutes usually require agencies to give advance notice of all meetings, even emergency ones, and to publish or post agendas in advance, listing items to be discussed. The laws require agencies to keep minutes and/or transcripts of all meetings, even those which can be legally closed to the public. Every state allows agencies to conduct certain discussions in closed or "executive" sessions. However, formal agency action usually must be taken at public sessions. The kinds of meetings which can be closed vary somewhat from state to state, but most laws permit the following discussions to be secret: * Personnel matters -- particularly where an individual employee is being fired, hired or disciplined (although in some cases, the employee has the right to request a public hearing); * Collective bargaining sessions; * Discussions with agency attorneys regarding pending or imminent litigation in which the agency is involved; * Discussion of the acquisition or sale of public property. Meetings of specialized agencies are frequently closed under special legislation. For instance, meetings of parole boards often are not public. Open meetings statutes usually specify the procedures agency officials must follow to close a meeting. In some states open sessions are required to vote to close meetings. In others, simply giving notice of the intent and reasons for holding a closed meeting is sufficient. As under freedom of information laws, the public and media may seek redress in the courts for violations of open meeting laws. In some states, actions taken in violations of the law will be nullified, requiring the agency to take the action again in an open meeting. In other states government officials may be liable for criminal or civil fines for deliberate violations. This discussion provides only a brief outline of these statutes. If you need further assistance in utilizing the state or federal law, the FOI Service Center, a project of the Reporters Committee for Freedom of the Press, will help you without charge. CHAPTER VI CONFIDENTIAL SOURCES & INFORMATION ================================== Government intervention in the newsgathering process and the use of subpoenas - similar to summonses - to force journalists to disclose their confidential news sources and unpublished information continually burden the news media. In June 1989, former Attorney General Richard Thornburgh expressed the wish that journalists would reveal to federal officials govemment sources who leak information. If journalists were to do so, he said, "every leaker in town would be gone by sundown." Thornburgh's remarks underscore the complete lack of appreciation in certain segments of the government for the need for the news media to remain independent reporters of government activities, rather than keepers of govemment secrets. LEGISLATIVE PROTECTION OF NEWS SOURCES Twenty-eight states and the District of Columbia have adopted shield laws affording the media varying degrees of protection against subpoenas.[85] Some shield laws protect reporters from forced disclosure of their confidential news sources, but do not protect unpublished material. Other laws provide different degrees of protection according to the type of legal proceeding involved (civil or criminal) and/or the role of the journalist in the proceeding (defendant or independent third party). In many states without shield laws, state courts have recognized some form of qualified privilege. In others, legislatures have added "free press" provisions to the states' constitutions which afford qualified protection for newsgathering. There are several states, however, such as Hawaii, South Dakota and Wyoming, where no privilege to protect unpublished sources of information has been recognized by the courts or legislatures. Reporters should become familiar with the scope of their state's privilege to withhold confidential sources and information, as recognized by a shield law, state constitution or in case law. CONSTITUTIONAL PRIVILEGE PROTECTS SOURCES The issue of whether the First Amendment affords reporters a privilege to withhold confidential information came before the U.S. Supreme Court in 1972 in a trilogy of cases decided together under the name Branzburg v. Hayes[86]. In each case, a reporter who had witnessed criminal activity was subpoenaed to testify before a grand jury. The majority ruled that reporters have no First Amendment right to refuse to testify and answer all questions before grand juries. However, a qualified constitutional privilege was recognized in separate opinions by Justices Louis Powell and Potter Stewart. Two other justices joined Justice Stewart. These four justices, together with Justice William O. Douglas, who dissented in a separate opinion, gave the qualified constitutional privilege a majority. Since Branzburg, almost all federal and state courts have acknowledged the existence of some form of qualified constitutional privilege.[87] They generally employ a three-part balancing test to assess whether the subpoenaed information is clearly relevant and material to the pending case, whether it goes "to the heart of the case" and whether it could be obtained from other sources besides the media. The Branzburg ruling is usually strictly applied to any journalist subpoenaed to testify before a grand jury, especially if the important criminal proceeding is at stake, courts may find that the public interest is better served by compelling the reporter to testify. In criminal trials, many courts apply the three-part balancing test to determine whether the defendant's Sixth Amendment right to confront all witnesses against him outweighs the reporter's need for confidentiality. The decision usually comes down to whether the information sought is clearly essential to the proof of the crime, to the defendant's defense or to the charge and/or the sentence. A reporter is most likely to enjoy at least a qualified constitutional privilege in civil cases to which he or she is not a party. The courts usually find that the public interest in protecting the reporter's news sources outweighs the private interest in compelling the reporter's testimony. However, in libel cases, reporters who are defendants are frequently subpoenaed because the allegedly defamatory reports are based on information obtained from confidential sources. Public officials and public figures, who must demonstrate actual malice, argue that they need to know the names of confidential sources (if any exist) in order to demonstrate that the reporters knew their stories were false or acted in reckless disregard of the truth. These plaintiffs also argue that access to unpublished information is necessary to determine if the selection of information for a news story showed actual malice on the part of the news organizations. A number of trial courts have held that before a reporter can be compelled to testify in libel cases, the plaintiff must prove by substantial evidence that the challenged statement was published and is both factually untrue and defamatory. The plaintiff must also prove that reasonable efforts to discover the information from alternative sources have been made, and no other reasonable source is available. Further, these plaintiffs must show that the informant's identity is needed to properly prepare the case. A REPORTER'S OBLIGATION TO A SOURCE Typically, subpoena battles arise out of a journalist's commitment to keep his or her source confidential. Reporters consider their promises to confidential sources to be almost sacred, and have routinely faced jail terms to protect their sources. But in 1991, the Supreme Court was asked in Cohen v. Cowles Media[88] to decide whether a confidential source may sue a news organization that reveals his identity without his consent. The Supreme Court ruled that the First Amendment does not protect journalists from such suits, and left it to the states to decide whether media organizations would be subject to ordinary rules of contracts and "promissory estoppel" (where a court enforces a promise made to a party who relied on it to his detriment). In the wake of Cohen, many news organizations have reexamined their policies on whether reporters have the right to promise unconditional confidentiality to a source, or whether such undertakings can be overruled by editors. You should familiarize yourself with the policy in effect at your news organization. WHAT TO DO WHEN YOU ARE SUBPOENAED Receiving a subpoena does not mean the marshal will be coming to the door to arrest you. It is simply notice that you have been called to appear at a deposition or other court proceeding to answer questions or to supply certain documents. You may not ignore a subpoena, however. If you fail to appear at the time and place specified you could be held in contempt of court, and fined or imprisoned, or both. If you are subpoenaed, there are certain steps you should take immediately. Under no circumstances should you comply with the subpoena without first consulting a lawyer. It is imperative that your editor or your news organization's legal counsel be advised as soon as a subpoena is served so a plan of action can be developed. If your state has a shield law, the lawyer must determine whether it applies to the information sought and to the type of proceeding involved. Even if your state does not have a shield law, state courts may have recognized some common law or constitutional privilege which will protect you. Working with your editor, the lawyer will then recommend a strategy for handling the subpoena, taking into account your news organization's policy governing compliance with subpoenas and revelation of unpublished information or the names of sources. If a subpoena requests only published or broadcast material, your newspaper or station may elect to turn over these materials without dispute, as a matter of policy. If the materials sought are unpublished, such as notes or outtakes, or concern confidential sources, it is unlikely that your employer has a policy to turn over those materials voluntarily. Every journalist should be familiar with the news organization's policy for retaining notes and drafts. Follow the rules and do so consistently. If your news organization has no formal policy, talk to your editors about establishing one. Never destroy notes, tapes, drafts or other documents once you have been served with the subpoena. In some situations, your news organization may not agree that sources or materials should be withheld, and may try to persuade you to reveal the information to the party issuing the subpoena. If the interests of your news organization differ from yours, it may be appropriate for you to seek separate counsel. SANCTIONS When a court orders a reporter to comply with a subpoena, the court may impose a sanction if the reporter refuses to do so. The reporter may be held in contempt. Civil contempt can result in a fine and/or jail sentence, which terminates when the reporter divulges the information sought. Criminal contempt may also be used to punish an affront to the court, such as a reporter's obstruction of court proceedings by refusing to testify. Criminal contempt will result in a fine and/or sentence, but unlike civil contempt, the jail sentence is for a set period of time and does not end if a reporter decides to testify. Some state shield laws provide that reporters cannot be held in contempt for refusing to testify. If a reporter is a party to a case, such as a defendant in a libel or privacy suit, and refuses to reveal a confidential source or unpublished information, some courts will rule that the reporter automatically loses the suit. A court may also prohibit the reporter or news organization from introducing evidence gathered from confidential sources. Or, the court may presume as a matter of law that the reporter never had a confidential source, whether or not this is the case. This means that the reporter may lose the suit unless he or she decides to disclose the source. NEWSROOM SEARCHES In 1978, the U.S. Supreme Court ruled that a warrant may be issued to search any person's property, including a newsroom or a reporter's home, if there is reason to believe that evidence of a crime will be found.[89] In this case, police secured a warrant to search a college newspaper's newsroom for photographs identifying some demonstrators who had injured policemen. In a direct reaction to this ruling and the subsequent application of it by the courts, Congress passed the Privacy Protection Act of 1980,[90] which limits the circumstances in which federal, state and local law enforcement officials may obtain warrants to search for journalists' "work products" or "documentary materials." A "work product" consists of "material whose very creation arises out of a purpose to convey information to the public," such as drafts of articles, film outtakes or notes. The act defines "documentary materials" as "materials upon which information is formally recorded," such as photographs or audio and video tapes. The act lists some exceptions. "Work products" may be seized under a search warrant if there is "probable cause to believe" the reporter has committed, or is committing, a crime to which the materials relate. Also, if the information is necessary to prevent death or serious harm to someone, it may be seized. "Documentary materials" may be seized under a search warrant if the advance notice provided when a subpoena is issued would result in the destruction of the materials, if a previous subpoena has been ignored, if all legal remedies to enforce the subpoena have been exhausted and if any further delay in the trial or investigation would "threaten the interests of justice." If law enforcement officials violate any provision of the act, a news organization may be awarded damages to cover legal fees and actual injury. The minimum amount that will be awarded is $1,000. Even though the Privacy Protection Act applies to state searches as well as those conducted by federal authorities, nine states - California, Connecticut, Illinois, Nebraska, New Jersey, Oregon, Texas, Washington and Wisconsin - have laws providing similar or even greater protection. If law enforcement officials arrive at a newsroom or a reporter's home with a search warrant, the journalist should try to delay the search until a lawyer has examined the warrant. If the search proceeds, staff photographers or camera operators should record the scene. Although staff members may not impede the law enforcement officials, they are not required to assist the searchers. Consult your attorney immediately after the search is over about filing a suit in either state or federal court. It is important to move quickly, because you may be able to obtain emergency review by a judge in a matter of hours. Another option allows you to assert your claim in an administrative proceeding, which may lead to sanctions against the official who violated the act. Your attorney can help you decide which forum will offer the best remedy. CHAPTER VII LIBEL =========== A defamatory communication exposes a person to hatred, ridicule, or contempt; it lowers him in the esteem of his fellows, causes him to be shunned, or injures him in his business or calling. Defamation can occur either as libel - published or broadcast communication, or slander - oral communication. Libel occurs when a false and defamatory statement about an identifiable person is published to a third party, causing injury to the subject's reputation. There is no uniform law for libel. Each state decides what the plaintiff in a libel suit must prove and what defenses are available for the media. However, constitutional law requires that plaintiffs prove fault before a news organization can be held liable for defamatory communications.[91] When the media are sued, it is the court's duty to balance protection of a person's reputation against the First Amendment values of freedom of the press. PUBLICATION Publication occurs when information is negligently or intentionally communicated by newspapers, magazines, books, radio or television broadcasts to someone other than the person defamed. Words alone are not conclusive evidence of defamation. The full context of a publication is generally considered when determining whether a statement is libelous. Libel can take many forms. A headline, drawing, cutline or photograph can be defamatory. Courts are split on whether a headline standing alone can be defamatory or whether it must be read in conjunction with the story before it is considered defamatory. The media can be liable for the republication of a libelous statement made by another person or entity. An inaccurate quote that damages the reputation of the speaker can be actionable. Letters to the editor containing unsupported derogatory accusations, or containing false statements, can also be the basis of a libel suit. However, under the common law doctrine of fair report, certain public and official statements can be disclosed by the media without fear of liability. In most states, reports of arrests, civil and criminal trials and statements made to, by and about law enforcement officials are privileged. Reports of this nature must be accurate and fair in order for the reporter to invoke the fair report privilege. FALSITY It has often been said that truth is an absolute defense to libel. Absolute accuracy is not the appropriate criterion. Rather, the general standard is that the information must be substantially true. Under the common law, the media defendant had the burden of proving that the statements challenged by the plaintiff were true. The Supreme Court changed that practice for libel suits involving public officials and public figures.[92] Now these plaintiffs must prove that the statements of fact were false, and were made with knowledge of, or reckless disregard for, their falsity. As a result of the Supreme Court's decision in Philadelphia Newspapers Inc. v. Hepps,[93] private individuals suing for libel must also prove the statement was false if it involved a matter of public concern. IDENTIFICATION A plaintiff must prove that the alleged defamatory publication refers to him or her. Relatives cannot sue on behalf of a deceased person. Governmental entities cannot bring libel claims, nor can members of large groups (25 or more). However, if the statement can be interpreted as referring to any particular person in a group, that person can sue. Also, if the offending information pertains to a majority of the members of a small group, any member of the group has standing to sue. A corporation may bring a libel claim if the alleged defamatory statement raises doubts about the honesty, credit, efficiency or prestige of that business. However, if the statements refer only to corporate officers, the corporation cannot litigate on their behalf. HARM The essence of a libel suit is the claim that someone's reputation has been injured. In some states, harm does not need to be shown if the statements in question concern a criminal offense, a loathsome disease, a female's unchastity, or matters harming a person's business, trade, profession or office. Damage to the plaintiff's reputation is presumed. For example, accusations of fraud, incompetence or improper behavior by business or professional people would be considered to be libelous on their face in most states. However, in some jurisdictions, a professional charged with ignorance or lack of skill on only a single occasion cannot claim defamation. This is known as the single instance rule. To recover damages for statements whose defamatory nature can only be proven with facts not published, a plaintiff usually must prove a money loss as a result of the publication. FAULT The Supreme Court has recognized different standards for different types of libel plaintiffs, with public officials and public figures required to show a high degree of fault. Celebrities and others with power in a community are usually considered public figures. Politicians and high-ranking govemment personnel are public officials. Courts generally consider public officials to include public employees who have substantial responsibility for or control over the conduct of governmental affairs. Some courts have found that public school teachers and police officers are public officials. But determining if other people are private or public figures is not always easy. In some instances, there may be overlapping in the private and public category. For example, a businessperson who has high visibility because of fundraising efforts in a community may or may not be a public figure for all purposes. A plaintiff who is considered a public figure or official must prove that the publisher or broadcaster acted with "actual malice" in reporting derogatory information. "Actual malice" does not mean ill will or intent to harm. Instead, the term applies to whether the defendant knew that the challenged statements were false or acted with reckless disregard of the truth. Courts may examine reporting procedures in testing for actual malice. While carelessness is not usually considered reckless disregard, ignoring obvious ways of substantiating allegations could be considered reckless. In Harte-Hanks Communications, Inc. v. Connaughton,[94] the Supreme Court held that even an extreme deviation from professional standards, or the publication of a story to increase circulation, do not in themselves prove actual malice. The Court also said that while failure to investigate facts does not necessarily prove actual malice, a "purposeful avoidance of the truth" may. Use of quotations that are not literally accurate will not necessarily be considered proof of actual malice as long as the altered quotes do not materially change the meaning of the words the speaker used, according to the Supreme Court. In Masson v. The New Yorker Magazine,[95] the court acknowledged that some editing of quotations is often necessary, but it refused to extend protection to all edits that are at least a "rational interpretation" of what the speaker said. If the plaintiff is a private litigant, he or she must at least prove that the publisher or broadcaster was negligent in failing to ascertain that the statement was false and defamatory. Some states may impose a higher burden on private-figure litigants, especially if the story in question concerns a matter of public importance. DEFENSES TRUTH is generally a complete bar to recovery by any plaintiff who sues for libel. Making sure that any potentially libelous material can be proven true can avoid needless litigation. FAIR REPORT. Libelous statements made by others in certain settings are often conditionally privileged if the reporter, in good faith, accurately reports information of public interest. This privilege usually applies to official meetings such as judicial proceedings, legislative hearings and grand jury deliberations. OPINION is still protected speech under the First Amendment, although the Supreme Court limited the formerly broad reach of opinion protection in Milkovich v. Lorain Journal.[96] The court ruled that there is no separate opinion privilege, but because factual truth is a defense to a libel claim an opinion with no "provably false factual connotation" is still protected. The Court said that there is no difference between saying "Jones is a liar," which is defamatory, and "In my opinion Jones is a liar." As a result of this decision, courts will examine opinions to see if they are based on or presume underlying facts. If these facts are false or defamatory, the "opinion" statements will not be protected. The courts will make these considerations on a case-by-case basis. CONSENT. If a person gives permission for the publication of the information, that person cannot later sue for libel. However, denial, refusal to answer or silence concerning the statement does not constitute consent. The STATUTE OF LIMITATIONS for bringing libel suits varies from state to state. Generally the time limit for filing a libel lawsuit starts at the time of the first publication of the alleged defamation. If the plaintiff does not sue within the statutory time period, the litigation can be barred. Although a retraction is not usually considered a defense to a libel claim, it may reduce the damages a defendant must pay if found liable for defamation. Before agreeing to publish a retraction, consult an attorney. INFLICTION OF EMOTIONAL DISTRESS Individuals sometimes sue the news media for emotional distress caused by the publication of embarrassing, truthful facts. However, in Hustler Magazine v. Falwell,[97] the U.S. Supreme Court ruled that public figures and public officials may not recover for intentional infliction of emotional distress without demonstrating that the material in question contained a false statement of fact that was made with actual malice. The high court noted that editorial cartoonists and other satirists must be protected not only from libel suits, but also from suits claiming emotional distress, when caricaturing public figures or commenting on matters of public concern. AVOIDING LIBEL SUITS Check sources thoroughly. Get independent corroboration whenever possible. A source could have a vendetta against the subject and willfully or unintentionally misrepresent the facts for his or her own purposes. Confidential sources, such as government employees, may disappear or recant in the face of a lawsuit. Don't rely on someone else to be accurate. Do not let your opinion about whether someone is a public figure or official color your decision to verify the accuracy of a story. Juries do not respond favorably to reporters who fail to confront their subjects with defamatory information and to provide them with an opportunity to comment. If you cover the police or courthouse beat, make certain you understand criminal and civil procedure and terminology. Be especially careful to restate accurately any information obtained about arrests, investigations and judicial proceedings. Be cautious when editing. Make sure the story does not convey the wrong information because of a hasty rewrite. Watch for headlines and cutlines that might be defamatory even though the text explains the story. Make sure news promos used to stir audience interest are not misleading or defamatory. Do not use generic film footage or file photos when reporting on an activity that might be considered questionable. Just because someone else said it does not mean that a news organization cannot be sued for republishing it. This includes letters to the editor. Check out any factual allegations contained in them as carefully as you would statements in a news story. Be sensitive about using words that connote dishonest behavior, immorality or other undesirable traits, whether in your published story or in marginal comments in your notes. Remember that a judge may order a news organization to produce reporters' notes, drafts and internal memoranda at trial. If contacted by someone threatening a libel suit, be polite, but do not admit error or fault. Talk the case over with your editor, supervisor or attorney immediately, and follow procedures established by your news organization. CHAPTER VIII INVASION OF PRIVACY =================== The concept of a right to privacy was first articulated in an 1890 Harvard Law Review article by Louis Brandeis and Samuel Warren. It took American courts 15 more years to recognize it. The Georgia Supreme Court was the first to do so in Pavesich v. New England Life Insurance Co.,[98] a case involving the use of an individual's photograph without his permission in a newspaper advertisement. Today, almost every state recognizes some right of privacy, either in statutory or common law. Most state laws attempt to strike a balance between the individual's right to privacy and the public interest in freedom of the press. Invasion of privacy is considered a personal tort, aimed at protecting the individual's feelings. Corporations generally cannot claim a right of privacy, and heirs cannot file suit on behalf of a decedent. The right of privacy perishes with the individual. Public figures also have a limited claim to a right of privacy. Past and present government officials, political candidates, entertainers and sports figures are generally considered to be public figures. They are said to have voluntarily exposed themselves to scrutiny and to have waived their right of privacy, at least in matters that might have an impact on their ability to perform their public duties. Although private individuals can usually claim the right to be left alone, that right is not absolute. For example, if a person who is normally not considered a public figure is thrust into the spotlight because of her participation in a newsworthy event, her claims of a right of privacy may be limited. A right of privacy can be violated by any means of communication, including spoken words. This tort is usually divided into four categories: intrusion, publication of private facts, false light and misappropriation. INTRUSION Privacy is invaded when one intentionally intrudes, physically or otherwise, upon a person's solitude or into his private area or affairs. Intrusion claims against the media often center on some aspect of the newsgathering process. This tort may involve the wrongful use of tape recorders, cameras or other intrusive equipment. Trespass can also be a form of intrusion. An actionable claim for intrusion may arise even before a news story is published or aired. For example, in Williams v. ABC,[99] a plaintiff successfully sued a television station when her hip surgery was filmed without her consent. The presence of television cameras in private surgery was held to be an intrusion - a violation of the woman's privacy. PUBLICATION OF PRIVATE FACTS Publication of truthful information concerning the private life of a person that would be both highly offensive to a reasonable person and not of legitimate public concern is an invasion of privacy. Liability is often determined by how the information was obtained and its newsworthiness. Private, sensational facts about a person's sexual activity, health or economic status can constitute an invasion of privacy. Reporting news events that take place in public is not generally vulnerable to claims of invasion of privacy. Arrests are considered newsworthy and, therefore, the press is free to accurately report them. Even a couple's intimate moment in public, captured in a photograph, is not actionable as long as a reasonable person would not consider the picture indecent. Courts usually find that individuals have no "reasonable expectation of privacy" when they are in public. Public records: If information comes from a public record, such as a birth certificate, police report or judicial proceeding, the media are usually not liable for reporting it. A newspaper can print a list of people who have been granted divorces, for instance, when it receives the information from court records, no matter how embarrassing it is to the individuals.[100] However, not all information kept by public officials is considered part of the public record. Some states preclude the publication of certain information, even though it is part of an official record, by sealing the files or restricting public and news media access to certain proceedings. Using such information could lead to prosecution by the state. However, if the press lawfully obtains truthful information about a matter of public concern, then the state may not constitutionally punish publication of the information absent the need to further a substantial state interest.[101] Reporters should use caution in relying upon semi-public documents. For example, a police detective's notes that do not become part of the official police report may not be considered part of the public record. If a document relied upon by a reporter was found to be only semi-public, the reporter might not be privileged to report the information contained in it. However, one federal appellate court has ruled that publishing information from even a secret police report is not an invasion of privacy, because there is no reasonable expectation that information given to the police will be kept secret.[102] Newsworthiness: The court may consider several factors in determining whether information published is newsworthy: * The social value of the facts published. * How deeply the article intruded into ostensibly private affairs. * The extent to which the person voluntarily assumed a position of public notoriety. For example, in Garner v. Triangle Publications Inc.,[103] a woman who had been involved in a car accident sued a reporter who revealed that she was living with a man who was not her spouse. That fact was not pertinent to the story, which was otherwise newsworthy, and the reporter was held liable. Passage of time: The newsworthiness of a private fact may be affected by the passage of time. Problems occur when individuals, who once may have been notorious, but who since have been rehabilitated, become subjects of historical commentaries that refer to their former crimes or indiscretions. Private facts published in a popular feature, such as a "25 Years Ago Today" column, could be considered an invasion of privacy if the subject is not considered to be a public figure or is deemed to have lost his public figure status. Disclosed facts about both public officials and public figures are not subject to the passage of time rule. Community standards: The sensibilities of the community must also be considered when determining if a private fact should be reported. The law is not designed to protect the overly sensitive. However, if the information could be considered indecent or obscene by community standards and is not central to the story, it may be safer to eliminate it. FALSE LIGHT False light invasion of privacy occurs when information is published about a person which is false or places the person in a false light, is highly offensive to a reasonable person, and is published with knowledge or in reckless disregard of whether the information was false or would place the person in a false light. Although this tort is similar to defamation, it is not the same. The report need not be defamatory to be actionable as false light. This type of invasion of privacy often occurs when a writer condenses or fictionalizes a story. False light includes embellishment (false material added to a story, which places someone in a false light), distortion (the arrangement of materials or photographs to give a false impression) and fictionalization (works of fiction containing disguised characters that represent real people or references to real people in fictitious articles). MISAPPROPRIATION The use of a person's name or likeness for commercial purposes without consent is misappropriation. The law protects individuals from being exploited by others for their exclusive benefit. But use of a photograph to illustrate a newsworthy story is not misappropriation. Even if a photo is used to sell a magazine on a newsstand, courts usually will not consider that a trade or commercial purpose. Many misappropriation claims are connected with advertising and the use of drawings or photographs. A person's entire name need not be used. If the person could reasonably be identified, the misappropriation claim will probably be valid. RIGHT OF PUBLICITY Some states recognize a right of publicity, which protects a celebrity's commercial interest in the exploitation of his or her name or likeness. In some jurisdictions, this right may descend to heirs or be assigned to others to be exploited after the person's death. Although use of a famous person's name or likeness to sell a product is obviously an invasion of privacy, other infringements may not be so clear. When an Ohio television station filmed a performer's entire 15-second human cannonball act for its evening newscast, the U.S. Supreme Court found that the film posed a substantial threat to the economic value of that performance. Therefore, use of the film was a tortious appropriation of the plaintiffs professional property, the court said.[104] DEFENSES If a person waives the right to privacy by giving consent, then there can be no invasion of privacy. However, the reporter should be sure that the subject has not only consented to be interviewed, but also consented to publishing or airing the interview or photographs. When minors or incompetent people are involved, the consent of a parent or guardian may be necessary. Consent can be revoked by the subject. A written release is essential for use of pictures or private information in advertising or other commercial contexts. Truth can be a defense, especially in false light cases. Further, a litigant claiming false light invasion of privacy who is involved in a public matter must prove that the media intentionally or recklessly made erroneous statements about him. However, truth is not a defense when the claim is based on publication of private facts. If the public has a legitimate interest in the story as it was reported, newsworthiness can be a defense to the charge of invasion of privacy. But if the report of legitimate public interest includes gratuitous private information, publication of those private facts may be actionable. REPORTER'S PRIVACY CHECKLIST A. Consent From the Subject Is the subject an adult? If not, do you have parental consent? Is the person mentally or emotionally disabled and unable to give consent? Have you obtained valid consent from a guardian or other responsible party? Has that consent been revoked? Is the subject currently a private or public figure? Has the person's status changed over time? B. Method of Obtaining information Is it a public place? If it is a private place, do you have permission to be on the premises and permission to interview or photograph? Was the information contained in a public record? A semi-public record? C. Content Would publication of the information offend community standards of decency? Have the facts been embellished with information of questionable accuracy? Is the information outdated and not obviously of current public interest, or has a current event revived its newsworthiness? Is the information vital to the story? CHAPTER IX PRIOR RESTRAINTS ================ In May 1986, Central Intelligence Agency Director William J. Casey announced that he had asked the Justice Department to prosecute six national media organizations for publishing information that threatened the nation's security. Casey warned that the news organizations would be charged with espionage if they continued to publish information about the communications intelligence activities of the United States. Casey's threats coincided with the espionage trial of Ronald Pelton, who was convicted of selling information to the Soviets about U.S. intelligence-gathering activities. In the wake of Casey's comments, some members of the news media became especially cautious in covering the trial. For example, some organizations declined to repeat the code "Ivy Bells," which signified the monitoring programs compromised by Pelton. As this example illustrates, Casey achieved his probable goal - he convinced the media to voluntarily censor themselves. Why did Casey use mere threats and intimidation? Certainly one reason lies in the strong protection against government-imposed censorship afforded by the First Amendment. Prior restraints, or orders not to publish information which the media have legally obtained, have long been disfavored by the Supreme Court. Such orders stifle free and robust debate on important public issues which the First Amendment was designed to foster. They also represent governmental interference with the guarantee of a free and independent press. Since 1931, the U.S. Supreme Court has stated repeatedly that government attempts to censor the media are unconstitutional.[105] The Court said that it rarely would uphold orders not to publish or statutes threatening punishment for publishing certain information. In fact, the Supreme Court has articulated only one circumstance under which a prior restraint would be permissible - an order barring publication of the movement of troop ships during war time.[106] However, some states have statutes on their books making it illegal to publish the names of rape victims. Journalists who break these laws are subject to fines and jail sentences.[107] While the Supreme Court has not held that these statutes are unconstitutional as written, it has ruled that states cannot punish journalists for publishing truthful information they have obtained through legal means.[108] Accordingly, editorial decisions about publication of information the government deems sensitive are generally left solely to the discretion of the media organizations in this country. Despite the fact that First Amendment law is well defined in this area, government officials and private individuals occasionally attempt to censor what is published. Reporters, therefore, must know what to do when ordered not to publish. Law enforcement officials often tell reporters not to publish certain information about crimes - for example, the names of victims or witnesses, or the place where the crime occurred. Particularly when such officials have readily made the information available, reporters should be skeptical about warnings not to publish.[109] Private individuals occasionally have tried to convince reporters to refrain from publishing information which might be private or embarrassing. Sometimes these people have sought court orders barring publication of information. In one celebrated case, Frank Sinatra filed suit to stop Kitty Kelley from conducting interviews and publishing her "unauthorized" biography of him. He later withdrew the case.[110] Generally courts are reluctant to issue prepublication gag orders, particularly when the justification for them is merely that the material might be libelous or invade someone's privacy.[111] However, there are a few exceptions to prior restraint bans. NATIONAL SECURITY The U.S. Supreme Court has recognized that publication of some information may be restrained to protect national security. When The Washington Post and The New York Times began publishing the Pentagon Papers, the government tried to enjoin publication. The Supreme Court rejected prior restraint in that case because the government had not made a sufficient showing of harm to national security.[112] A federal District Court issued a restraining order when The Progressive threatened to publish an article explaining the design of a hydrogen bomb. An appeals court ultimately dismissed the case after the article appeared in another publication.[113] OBSCENITY Obscenity falls outside the protection of the First Amendment. Although bans on publication generally have been declared unconstitutional, the Supreme Court has permitted government regulation of the sale and distribution of obscene materials. The Court has consistently required that those regulations be narrowly defined to cover materials judged obscene by contemporary community standards. The United States Department of Justice has also declared war on pornography and in recent years has used the federal Racketeer Influenced and Corrupt Organizations Act (RICO) to prosecute businesses selling sexually explicit literature and videos. Under a 1984 addition to the law, a person convicted of obscenity under the RICO obscenity law faces large fines, prison sentences and the seizure of an entire business operation for selling pornographic materials that may amount to no more than a small fraction of a company's inventory. The Supreme Court in July 1992 agreed to hear the appeal of Ferris Alexander, a businessman convicted of violating the law. Alexander operated a chain of bookstores, theaters and video stores in the Minneapolis area. In May 1990 a jury found he had violated the law by selling four magazines and three videotapes worth less than $200. As a result, Alexander was sentenced to six years in prison, fined $200,000 and forced to forfeit a $25 million business even though much of his inventory included nonpornographic materials.[114] COMMERCIAL SPEECH Advertising and other communications proposing commercial transactions between the speaker and listener are not fully protected by the First Amendment. Generally, the Supreme Court has said that commercial speech may be restrained if it is false, misleading or concerns unlawful activity. Any governmental restraint must advance a substantial public interest and must not be more extensive than necessary to serve that interest. A 1986 Supreme Court decision suggested that still broader governmental regulation of commercial speech may be constitutional. In Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico,[115] the Court upheld a government ban on advertising of legal gambling. The restriction barred advertising directed at citizens of Puerto Rico, rather than to tourists. The Court found that the island government's interest in protecting its citizens from the "evils" of gambling was sufficient to justify the ban. In recent years, special interest groups have lobbied for federal legislation advocating bans on advertising of tobacco products and alcoholic beverages. In light of the Posadas decision, such proposals may survive constitutional scrutiny. CORPORATE INFORMATION Occasionally corporations attempt to restrain publication of information about their activities. Businesses have been able to secure injunctions to protect trade secrets, although courts usually require that there be some special relationship between the company seeking the injunction and the party being enjoined. However, courts have repeatedly ruled that a corporation's mere assertion that publication will put it at a competitive disadvantage is inadequate to overcome the heavy presumption against prior restraints. GOVERNMENTAL REGULATION During the past several years, the Securities and Exchange Commission has tried to regulate financial newsletters. The commission said that individuals who disseminate nonpersonalized investment advice through such publications had to be registered as investment advisers. The U.S. Supreme Court rejected the agency's argument, ruling that such newsletters are "bona fide newspapers," exempt from the SEC's registration requirements.[116] In early 1992, the Mississippi House of Representatives passed a bill that would have required any journalist who wrote an unsigned editorial to register as a lobbyist or face a fine of $1,000 and up to 30 days in jail. Subsequent offenses would have carried a penalty of up to $5,000 and three years in jail. The bill died in the Senate.[117] WHAT TO DO IF ORDERED NOT TO PUBLISH If the order is an oral one issued by anyone other than a judge, try to determine the motivation for it. For instance, is an individual unduly sensitive to what he thinks you might publish? See if you can address those concerns without acquiescing to the demand. Remember, in most of these situations you can refuse the request and decide for yourself what information you will publish. If anyone, including a judge or government official, asks you not to publish information, consider the long-term effects of complying. If you accede to the request once, will you be expected to do the same in another situation in the future? If you are threatened with prosecution under a statute which supposedly makes publication of the information a crime, ask to see the statute or get enough information so that you can obtain a copy of it yourself. If such a law exists and covers the kind of information you want to publish, consult an attorney about the constitutionality of the law. Make a reasoned decision about publication only after you and your editors have considered the legal ramifications of that decision. If a judge orders you not to publish, take the order seriously. Ask for a copy of the order and consult your editors immediately. In these circumstances there are two courses of action open to you: obey the order while challenging it, or violate the order as a means of testing its constitutionality. Your choice should be made with a lawyer's assistance. If you elect the first course, at the earliest opportunity file your objection to the order with the judge and ask permission to appear with legal counsel to challenge the ruling. If the initial request to vacate the order is denied, or if you are denied the opportunity to be heard on your challenge, your attorney should be prepared to appeal quickly. If you elect to challenge the order by violating it and publishing the information, the court may hold you in contempt. Even if the order is later found to be unconstitutional, you could be fined or even imprisoned. Some courts have concluded that it is permissible to challenge obviously unconstitutional prior restraints in this way.[118] Others have rejected this method. Always consult your news organization's lawyer before taking such action. CHAPTER X COPYRIGHT ========= A newspaper reporter's article on an important town council meeting makes the front page. A local radio announcer, without attributing the article to the reporter or the newspaper, reads the lead and several other lines verbatim on his morning news report. The editor of a community weekly newspaper reads a magazine article on a local personality and decides to publish it in the newspaper's next edition. She makes sure to affix the copyright notice on the article and to acknowledge that the article originally appeared in the magazine, but she never seeks the magazine's permission. A freelancer writes a lengthy article about a famous athlete's drug problems and submits it for publication to a sports magazine. The magazine's publisher publishes the article in his sports magazine and then publishes it again in another of his publications. In these cases, the radio announcer, the weekly editor and the magazine publisher infringed the rights of the owners of the original works and may be held liable for damages. The 1976 Copyright Law[119] gives copyright protection to creative works - like the newspaper article, magazine article and freelance article in the above examples - at the moment of their creation. If someone uses a copyrighted work without permission, as the radio announcer, weekly newspaper editor and magazine publisher have, the copyright owner can sue for copyright infringement. Journalists need to know how to protect their works and how to avoid infringing someone else's copyright. WHAT CAN BE COPYRIGHTED The Copyright Law only grants copyright protection to "original works of authorship fixed in a tangible medium of expression." This means that a work does not have to be new or creative to qualify as an original work of authorship. It simply must owe its origin to a particular author. The law also states that a fact is not an original work of authorship. Facts owe their origin to the thing or person that makes them happen. For example, if a reporter wrote a newspaper article about a building fire, she could not copyright the facts about the fire because those facts do not owe their origin to her. Facts discovered through research, no matter how new and amazing, also do not owe their origin to the researcher. The bottom line is that journalists are only recorders of facts. However, the ways facts are recorded - style, choice and arrangement of words - are copyrightable. Similarly, one could not copyright an idea for a new foreign policy strategy, but could copyright his expression of that idea in a newspaper article. This is because the statute states that copyright protection for original works of authorship does not extend to ideas. The key point to remember about copyright law is that it protects expression of ideas and facts, not the ideas and facts themselves. The copyright statute provides that an article containing preexisting material or data can qualify as an original work of authorship if the material and data are "selected, coordinated or arranged" in such a manner that the end product owes its origin to the author. For example, an article about a federal law that includes quotations and facts from the Congressional Record would be copyrightable if the arrangement of this pre-existing material constituted an original work of authorship. A copyrightable work must be produced in a format that can be perceived, reproduced and communicated over time. Newspapers, magazines, photographs and most other forms of media easily satisfy this criteria. Radio and television news programs are recorded on paper or tape, and thus are fixed in a tangible medium of expression. HOW TO PROTECT A COPYRIGHTED WORK To copyright a work, one must print a copyright notice on all publicly distributed copies of the work "in such a manner as to give reasonable notice of a claim of copyright."[120] A single notice on the work copyrights the entire newspaper, periodical or radio or television news program. The copyright notice has three parts: the word "Copyright," or the abbreviation "Copr.," or the symbol (c); the year of the first publication; and the name of the copyright owner. This copyright notice is the only requirement for copyright protection and it will protect the work for the length of the owner's life plus 50 years. Registering the work with the Copyright Office, although not mandatory, makes it easier for people to find out who owns the work and where they can reach the owner to obtain permission to use it. However, the owner cannot collect damages for copyright infringement merely because he placed a copyright notice on a work. Copyright registration is a prerequisite to bringing a lawsuit in federal court to protect owners' rights. To register a work one must fill out the proper form, which can be obtained from the Information and Publications Section, LM-455, Copyright Office, Library of Congress, Washington, D.C. 20599. Send the completed registration form, a $20 fee and two complete copies of the work to the Register of Copyrights at the Library of Congress. It is also a good idea to record any transfer of ownership of the copyright with the Register of Copyrights. Regardless of whether an author registers a published work, two copies must be deposited with the U.S. Copyright Office within three weeks after a work has been "published." Failure to do so will not affect copyright protection, but the Copyright Office could charge a hefty fine. COPYRIGHT OWNERSHIP RIGHTS A copyright owner has the exclusive rights to: * Reproduce the copyrighted work, * Prepare a derivative work, such as a motion picture, based upon the work, * Distribute copies of the work to the public, * Perform the work publicly, * Display the work to the public, for example, by means of a film or slide. The copyright owner can transfer any of these rights to another person. WHO OWNS THE WORK A journalist does not always own his or her original work. When the journalist is employed by another person or a business, the employer owns the copyright unless the employee and employer have a written agreement otherwise assigning ownership. An article written by a newspaper's staff writer is owned by the newspaper. If the newspaper assigns a stringer to cover an event, the resulting story is the newspaper's property as well. When a freelancer develops an idea for a story, researches and writes it, and sells it to a magazine, the freelancer owns the article. The magazine acquires only those rights the freelancer assigns to it. Unless there is an express, written agreement to the contrary, the freelancer is presumed to hold the copyright.[121] HOW TO AVOID COPYRIGHT INFRINGEMENT The best way to avoid violating a copyright is simply to obtain the author's permission before using that person's expressions of ideas or facts. If you cannot get the author's permission, restate the ideas in your own words. Avoid using large segments of someone else's expression verbatim - this could be a blatant copyright infringement. The radio news announcer who broadcasts stories from the local newspaper word for word is asking to be sued. Not every unauthorized use of a copyrighted work is a copyright infringement. The statute considers some uses to be "fair uses, " such as news reporting, commentary, criticism, research, teaching and scholarship. However, no use is presumptively "fair." Courts examine four factors in deciding whether a specific use is a "fair use": * The purpose and character of the use, including whether the use is commercial or of a nonprofit, educational nature, * The nature of the copyrighted work, * The amount and substantiality of the portion used in relation to the copyrighted work as a whole, * The effect of the use upon the potential market for or value of the copyrighted work. The U.S. Supreme Court recently let stand a ruling that use of unpublished diaries and letters under the premise of research or news reporting may impair the future value of those writings. Such works are protected by a prepublication copyright. Further, there is a presumption that use of unpublished works is not fair use, the lower court had concluded.[122] In November 1991, however, the U.S. Court of Appeals in New York ruled that whether a work is unpublished is only one consideration in determining whether quoting from it is fair use.[123] The widow of deceased author Richard Wright maintained that excerpts of her husband's unpublished journals and letters were plagiarized in a biography recently published by Warner Books. Even though the excerpts were unpublished, the court ruled in favor of the publishing company after considering the four fair use factors. LEGAL ACTION TO PROTECT A COPYRIGHT If your copyright has been infringed, you may sue the infringer, seeking an injunction against future violations of your rights. Furthermore, you may recover actual damages, which are your losses plus the infringer's profits from use of the copyrighted work. ----------------------------------------------------------------- ENDNOTES ======== [1] Federal Wiretapping Statute, 18 U.S.C. ss. 2510. [2] The six states without wiretapping statutes are: Arkansas, Indiana, Mississippi, Missouri, Rhode Island and Vermont. [3] A number of courts have held that taping the radio portion of cordless telephone conversations is not prohibited by the federal law. One New York decision, however, held that state law prohibits interception of cordless phone conversations. People v. Fata, 559 N.Y.S.2d 348 (App. Div. 1990) [4] 47 C.F.R. s. 73.1207 [5] Ala. Code s. 13A-11-32 (1977) [6] Cal. Penal Code s. 630 et seq. (Deering 1982) [7] Del. Code Ann. tit. 11, ss. 1335, 1336 (1979) [8] Fla. Stat. Ann. s. 934.03 et seq. [9] Ga. Code Ann. s. 16-11-60 et seq. [10] See e.g., State v. Birge, 240 Ga. 501, 241 S.E.2d 213 (1978) [11] Hawaii Rev. Stat. s. 711-1111 (1972) [12] Ill. Ann. Stat. ch. 38, s. 14-1 et seq. (Smith-Hurd 1976) [13] Kan. Stat. Ann. ss. 21-4001, 4002 (1988) [14] State v. Roudybush, 235 Kan. 834, 686 P.2d 100 (1984) [15] La. Rev. Stat. Ann. s. 14:323 (1986) [16] Kirk v. State, 526 So.2d 223 (La. 1988) [17] Me. Rev. Stat. Ann. tit. 7-A, s. 511 (1976) [18] Md. Ann. Code s. 10-401 et seq. (1982) [19] Mass. Ann. Laws ch. 272 s. 99 (Michie/ Law. Coop. 1968) [20] Mich. Comp. Laws Ann. s. 28.807(1) et seq. (1967) [21] Sullivan v. Gray, 117 Mich. App. 476, 24 N.W.2d 58 (1982) [22] Mont. Code Ann. s. 45-8-213 (1991) [23] N.H. Rev. Stat. Ann. s. 570 A:2 (1977), ss. 644:9, 10 (1973) [24] Or. Rev. Stat. s. 165.535 et seq. (1991) [25] Pa. Stat. Ann. tit. 18, s. 5701 et seq. (Purdon 1981) [26] S.D. Comp. Laws Ann. s. 22-21-1 (1977) [27] Utah Code Ann. s. 76-9-401 et seq. (1973) [28] Wash. Rev. Code Ann. s. 9.73.030 (1970) [29] Ala. Code s. 13A-11-32 (1977) [30] Del. Code Ann. tit. 11, ss. 1335, 1336 (1979) [31] Ga. Code Ann. s. 16-11-60 et seq. (1985) [32] Hawaii Rev. Stat. s. 711-1111 (1972) [33] Me. Rev. Stat. Ann. tit. 7-A s. 511 (1976) [34] Mich. Comp. Laws Ann. s. 28.807(1) et seq. (1967) [35] N.H. Rev. Stat. Ann. s. 644:9 (1973) [36] S.D. Comp. Laws Ann. s. 22-21-1 (1977) [37] Utah Code Ann. s. 76-9-401 et seq. (1973) [38] Detroit Free Press v. Recorder's Court Judge, No. 148956 (Mich. Ct. App., Feb. 11, 1992) [39] Richmond Newspapers v. Virginia, 448 U.S. 555 (1980)(criminal trials); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)(criminal trials); Press Enterprise v. Superior Court (Press Enterprise I), 464 U.S. 501 (1984)(criminal case jury selection); Press Enterprise v. Superior Court (Press Enterprise II), 478 U.S. 1 (1986)(criminal case preliminary hearing) [40] In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986) [41] Publicker Industries v. Cohen, 733 F.2d 1059 (3d Cir. 1984)(preliminary injunction hearing); In re Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir. 1984)(hearing on motion to dismiss); In re Iowa Freedom of Information Council, 724 F.2d 658 (8th Cir. 1984)(contempt hearing); Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983)(pre- and post-trial hearings) [42] Stone v. University of Maryland Medical System Corp., 948 F.2d 128 (4th Cir. 1991) (Documents filed as exhibits in civil court actions may be subject to the First Amendment right of access); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165 (6th Cir. 1983)(First Amendment right of access to documents introduced in civil cases); Anderson v. Cryovac, 805 F.2d 1 (1st Cir. 1986)(limited First Amendment right of access to filed discovery documents); Barron v. Florida Freedom Newspapers, 531 So.2d 113 (Fla. 1988); Prescott Publishing Co. v. Superior Court, 395 Mass. 271 (1988)(common law right of access in both cases granted to files in divorce cases involving public officials) [43] In re Globe Newspaper Co., 920 F.2d 88(1st. Cir.); In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982) [44] In re Search Warrants for Secretarial Area Outside the Office of Thomas Gunn, 855 F.2d 569 (8th Cir. 1988), In the Matter of Search Warrants Issues on June 11, 1988, 710 F.Supp. 701 (D.Minn 1989) [45] Littlejohn v. BIC Corp., 851 F.2d 673 (3d Cir. 1988) [46] Tex. R. Civ. P. Ann. 76a (Vernon 1991); Fla. Stat. s. 69.081 (1991); Fla. Stat. s. 69.081 (1991); N.C. Gen. Stat. s. 132-12.2 (1989) [47] In re Agent Orange Product Liability Litigation, 597 F.Supp 740 (E.D.N.Y.), affirmed, 818 F.2d 945 (2d Cir. 1987); Public Citizen v. Liggett, 858 F.2d 7575 (1st Cir. 1989), cert. denied, 488 U.S. 1030 (1989)(access to discovery documents filed with the court granted under F.R.Civ.P. 5(d) [48] Nixon v. Warner Communications, 435 U.S. 589 (1978) [49] Richmond Newspapers, 448 U.S. at 584-89 (Brennan, J. concurring) [50] In re South Carolina Press Association, 946 F.2d 1037 (4th Cir. 1991)(upholding the closure of jury voir dire in criminal trials of three former state legislators) [51] Ex parte Consolidated Publishing Co., No. 1901184 (Ala., filed April 24, 1992) [52] Chandler v. Florida, 449 U.S. 560 (1981) [53] Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986); Gannett v. DePasquale, 443 U.S. 368 (1979) [54] Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) [55] Cable News Network, Inc., et al. v. Noriega, et al., 917 F.2d 1543 (11th Cir. 1990), cert. denied, 111 S. Ct. 451 (1990), on remand, 752 F.Supp. 1045 (S.D. Fla. 1990)(lifting prior restraint order) [56] See, e.g., In re The Charlotte Observer, 921 F.2d 47 (4th Cir. 1990) (six days after trial court's order forbidding publication of name of attorney who was the target of an ongoing drug investigation the appeals court vacated the injunction) [57] Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) [58] Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) [59] See CBS v. Young, 522 F.2d 234 (6th Cir. 1975) [60] Davenport v. Garcia, 61 U.S.L.W. 2019 (Tex., filed June 17, 1992) [61] KPNX v. Maricopa County Superior Court, 139 Ariz. 246, 678 P.2d 431 (1984) [62] In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982) [63] U.S. v. Harrelson, 713 F.2d 1114 (5th Cir. 1983), cert denied, 104 S.Ct. 1318 (1984) [64] Sheppard v. Maxwell, 384 U.S. 333 (1966) [65] Levine v. U.S. District Court, 764 F.2d 590 (1985), reh'g denied, 775 F.2d 1054 (9th Cir. 1985) [66] Zimmerman v. Bd. of Professional Responsibility, 765 S.W.2d 757 (Tenn. 1989), cert. denied, 109 S.Ct 3160 (1989) [67] Gentile v. State Bar of Nevada, 111 S.Ct. 2720 (1991) [68] Daily Herald v. Munro, 838 F.2d 380 (9th Cir. 1988) [69] CBS Inc. v. Growe, 15 Med.L.Rep. (BNA) 2275 (D. Minn. 1988), see also National Broadcasting Co. v. Cleland, 697 F.Supp. 1204 (N.D. Ga. 1988), CBS Inc., et al. v. Smith, 681 F. Supp. 794 (S.D. Fla. 1988), National Broadcasting Co. v. Colburg, 699 F. Supp. 241 (D. Mont. 1988), Journal Broadcasting of Kentucky v. Logsdon, No. C88-0147-L(A) (W.D. Ky. Oct. 24, 1988), National Broadcasting Co. v. Karpan, N. C88-0320-B (D. Wyo. Oct. 21, 1988), Charleston Television Inc. v. Charleston County Election Commission, No. 88-CP-10-4860 (S.C. Sup. Ct. Nov. 7, 1988) [70] Firestone v. News-Press Publishing Co., 538 So.2d 457 (Fla. 1989) [71] Pell v. Procunier, 417 U.S. 817 (1974), Saxbe v. Washington Post, 417 U.S. 843 (1974) [72] Garrett v. Estelle, 556 F.2d 1274 (5th Cir. 1976) [73] Sherrill v. Knight, 596 F.2d 124, 129 (D.C. Cir. 1977) [74] Post-Newsweek Stations Inc. v. Traveler's Insurance Co., 518 F.Supp. 81 (D.Conn. 1981), see also D'Amario v. Providence Civic Center Authority, 783 F.2d 1 (1st Cir.) (rev'd and remanded), 639 F.Supp. 1538 (D.R.I. 1986) (complaint dismissed) [75] National Broadcasting Co. v. Association of State Democratic Chairs, 14 Med.L.Rep. (BNA) 1383 (N.D. Ohio 1987) [76] Florida Publishing Co. v. Fletcher, 340 So.2d 914 (Fla. 1976) see also Wood v. Ft. Dodge Messenger, 13 Med.L.Rep. (BNA) 1610 (Iowa Dist.Ct. 1986) [77] Anderson v. WROC-TV, 441 N.Y.S.2d 220 (1981) [78] Heiser v. Waller, No. 85-C1454 (D. Wis. Nov. 25, 1986), Stevens v. Television Wisconsin Inc., No. 85-CV3227 (Wis.Cir.Ct. Jan.9, 1987) [79] Stahl v. Oklahoma, 665 P.2d 839, cert. denied, 464 U.S. 1069 (1984) [80] Marsh v. Alabama, 326 U.S. 501 (1946) [81] Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980) see also Lloyd Corp. Ltd. v. Wiffen, et al., 307 Ore. 674 (1989) [82] The Reporters Committee has compiled a comprehensive guide to open meetings and records laws in the 50 states and the District of Columbia, including analysis of the statutes and cases interpreting them. It is available as a compendium of guides to all states for $325 or individually for $8 a state. [83] The Reporters Committee publishes a guidebook to the federal Freedom of Information Act, which explains the law and how to use it. It is updated regularly and is available from the Committee for $3. [84] State ex rel. Plain Dealer Publishing Co. v. Barnes, 38 Ohio St.3d 165 (1988) [85] Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee. At the time of this writing, the District of Columbia had passed a shield bill, but the act had not yet passed congressional review, which is required before it can become law. [86] Branzburg v. Hayes, 408 U.S. 665 (1972) [87] But in Cohen v. Cowles Media, 111 S.Ct. 2513 (1991), the U.S. Supreme Court cited Branzburg in a list of cases upholding statutes that apply equally to the press and the general public. Inclusion in that list could indicate that the First Amendment privilege that protects reporters from testifying before grand juries is illusory. [88] 111 S.Ct. 2513 (1991) [89] Zurcher v. Stanford Daily, 436 U.S. 547 (1978), reh'g denied, 439 U.S. 885 (1978) [90] 42 U.S.C. ss. 2000aa et seq. (1982) [91] Gertz v. Robert Welch Inc., 418 U.S. 323 (1974) [92] New York Times v. Sullivan, 376 U.S. 254 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) [93] Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986) [94] Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657 (1989) [95] 111 S.Ct. 2419 (1991) [96] 497 U.S. 1 (1990) [97] Hustler Magazine v. Falwell, 485 U.S. 46 (1988) [98] Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S.E. 68 (1905) [99] Williams v. ABC, 96 F.R.D. 658 (W.D.Ark. 1983) [100] Doe v. Sherman Publishing, 593 A.2d 457 (R.I. 1991) [101] The Florida Star v. B.J.F., 109 S.Ct. 2603 (1989) [102] Scheetz v. The Morning Call, 946 F.2d 202 (3d Cir. 1991) [103] Garner v. Triangle Publications Inc., 97 F.Supp. 546 (S.D.N.Y. 1951) [104] Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) [105] Near v. Minnesota, 283 U.S. 697 (1931) [106] Id. at 716 [107] Fla. Stat. Ann. s. 794.03 (1991); Ga. Code Ann. s. 16-6-23 (1990); S.C. Code Ann. s. 16-3-710 (Law. Co-op 1990) [108] Cox Broadcasting v. Cohen, 420 U.S. 469 (1975) [109] The Florida Star v. B.J.F., 491 U.S. 524 (1989) [110] Sinatra v. Kelley, No. WECO 82-657 (Cal.Sup.Ct., filed Sept. 21, 1983) [111] In re The Providence Journal, 820 F.2d 1342 (1st Cir. 1986), cert. dismissed, 485 U.S. 693 (1988) [112] New York Times v. United States, 403 U.S. 713 (1971) (per curiam) [113] United States v. The Progressive, 467 F.Supp. 990 (W.D. Wis.), dismissed without opinion, 610 F.2d 819 (7th Cir. 1979) [114] Alexander v. Thornburgh, 943 F.2d 825 (8th Cir. 1991), cert. granted sub nom., Alexander v. United States, 112 S.Ct. 3024 (1992) [115] Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 19 (1987) [116] Lowe v. SEC, 472 U.S. 181 (1985) [117] H.B. 862, 1992 Miss. Legislature Regular Session (requires editorial writers to register as lobbyists) [118] In re The Providence Journal (letting stand lower court ruling striking down contempt finding against editor for violating prior restraint order as means of testing its constitutionality); U.S. v. Dickinson, 465 F.2d 496 (5th Cir. 1972) (upholding contempt finding against editor and paper for violating court order not to publish even though order was found to be unconstitutional) [119] 7 U.S.C. s. 101 et seq. (1976) (1976 Copyright Law governs works created on or after Jan. 1, 1978) [120] Consult Copyright Office bulletin, "Methods of Affixation and Position of Copyright" [121] Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) [122] Salinger v. Random House, 484 U.S. 890 (1988) [123] Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991)