Legal Issues in Journalism

1. Legal Issues in Journalism By Caralyn Greif and Gina Guarini

2. Legal Terms: • Defamation: communication of false statements about a person that injure the reputation of or deter others from associating with that person • Libel: to publish in print (including pictures), writing or broadcast through radio, television or film, an untruth about another which will do harm to that person or his/her reputation • Proof of Malice: In a Libel/Defamation lawsuit, one must provide actual proof that the intention of the statement was to be harmful • “Libel per se”: involves statements so vicious that malice is assumed and does not require a proof of intent to get an award of general damages • “Public Figure”: The rules covering libel against a "public figure" (particularly a political or governmental person) are special, based on U. S. Supreme Court decisions. The key is that to uphold the right to express opinions or fair comment on public figures, the libel must be malicious to constitute grounds for a lawsuit for damages. www.legal-dictionay.thefreedictionary.com

3. The First Amendment • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

4. New York Times Co. v. Sullivan (1964) • Landmark Case: • In 1960 the New York Times publishes a fundraising advertisement for the civil rights movement called “Heed Their Rising Voices”. • The ad contained several minor errors of fact • L.B. Sullivan, one of three city Commissioners in Montgomery, Alabama, becomes aware of the ad. He sues the New York Times for libel, claiming that the ad refers to him because he oversees the Montgomery police department which was mentioned in the ad. The jury grants him damages of half a million dollars; the New York Times appeals to the Supreme Court. www.bc.edu

5. NY Times vs. Sullivan www.northwestern.edu

6. Results of NY Times v. Sullivan (1964) • The Court ruled that public officials wishing to prevail in libel actions have the burden of proving that defamatory was published with actual malice • Substantially extended First Amendment protection for those writing a publishing stories about public officials • Some argue that if the Supreme Court ruled in favor of Sullivan, it would have significantly censored the press

7. Effects of NY Times v. Sullivan: • Associated Press v. Walker (1967) • The trial court rejected the defense's new trial motion based on New York Times Co. v. Sullivan, holding that decision inapplicable to one like petitioner not a public official. It also held the evidence amply supported the conclusion that the magazine had acted in reckless disregard of whether the article was false or not. • Curtis Publishing Co. v. Butts (1967) • Under the Times rule it was clear that Walker had not proven malice, and that the Butts case showed a "degree of reckless disregard for the truth." www.law.jrank.org; www.law.umkc.edu

8. Effects of NY Times v. Sullivan: • Gertz v. Welsh (1974) • The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements. • In the absence of a showing of actual malice, private plaintiffs are limited by the First Amendment--at least with respect to comments about a matter of public concern-- to recovery only for actual damages, and not for punitive or presumed damages. • Hustler Magazine, Inc. v. Falwell (1988) • The Supreme Court ruled unanimously that the jury award violated the First Amendment.  The Court saw no principled standard for separating the Hustler ad from, for example, hard-hitting political cartoons. www.law.jrank.org

9. Disputed Articles/Ads:

10. Hazlewood vs. Kuhlmeier (1988) • High School principal removed information from paper, claiming it didn’t protect students’ identities well enough • Supreme Court decided that public school officials may impose some limits on what appears in school-sponsored student publications • Newspapers that have not been established as student expression forums are subject to a lower level of First Amendment protection than independent student expression or newspapers • Paper was not considered a “public forum” • School officials may censor papers for an educational purpose

11. Effects of NY Times v. Sullivan • Actual Malice Standard: inconsistent and flawed interpretation and application. Heavy reliance on the Supreme Court’s interpretation • Many publications fear being sued for libel/defamation and therefore avoid topics that require investigation or controversy • Lawyers becoming highly involved with editing process • Result: forces us to spend a good deal of time looking at how journalism is made. • Promotion of irresponsible journalism • the public’s interpretation of journalism as sloppy. Kohler 1225-27

12. Absence of Malice • Absence of Malice • Tagline: “Suppose you picked up the morning newspaper and your life was on the front page headline. Everything they said was accurate but none of it was true” • Is this ethical?

13. Other Legal Issues: • Subpoenas: • commands a person to bring certain evidence, usually documents or papers to court (including information obtained from confidential sources)

14. Threats of Libel/Defamation:

15. Legal Protection for Journalists Journalist rights are deliberately one of the foremost rights of the US Constitution. But though journalists are protected under the first amendment, those rights are too open to interpretation. Therefore, additional laws must be put into place.

16. Shield Laws • Law that provides a journalist the right to refuse to testify information and/or the sources of information obtained from newsgathering.

17. The first state shield law was enacted in Maryland in 1896 after a reporter, John Morris from The Baltimore Sun, was jailed for refusing to reveal a source for a Grand Jury. Washington Post reports that First Amendment crises like this have been happening like clockwork every 35 years • each time resulting in the imprisonment of a reporter • each time sparking a call for a change in the law to protect Journalists.

18. Still, there is currently no national shield law, only different variations of shield laws in each individual state. Some forms of which include:

19. protects identity of sources • info that might lead to the identity of sources • unpublished info obtained during newsgathering process • DOES NOT necessarily protect all online publishers, such as bloggers, or amateur journalists • Depends on whether case is civil or criminal • DOES NOT offer protection to parties of a case

20. Provides “absolute” protection in civil cases • Provides “qualified privilege” in criminal cases (court can still order disclosure of sources or material) • DOES NOT include any instance in which the reporter conceals that he/she is a reporter from the source • DOES NOT include any situation in which a reporter is eyewitness to or participant in any act involving violence or property damage • Wording does suggest protection for amateur and non-traditional journalists, such as bloggers

21. Protects only “professional journalists” • Book authors specifically excluded from protection • Wording of law is unclear for online news publication • DOES NOT include physical evidence, eyewitness accounts or recordings of crimes • FL shield law is more qualified privilege, because a court can still force a reporter to reveal info in some cases, civil or criminal

22. Shield laws apply only if reporter receives a subpoena as part of a Grand Jury proceeding or as part of a criminal investigation • DOES NOT give protection for civil cases • DOES NOT apply when a criminal defendant seeks information from a reporter • Covers amateurs and non-traditional journalists

23. Proposed National Shield Law • Freedom of Information Act (2007) • “AN ACT to maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.”

24. Federal entity cannot require a covered person to provide testimony or reveal documents related to information “obtained or created by that person while engaging in journalism” UNLESS • A court determines by overwhelming evidence that all other reasonable sources have been exhausted • The information sought is critical to the investigation or prosecution or defense against the prosecution • The public interest in disclosing the information outweighs the public interest in gathering or disseminating it as news

25. This federal law will: • Broaden the definition of who is covered • Lower the standard of evidence the federal government is required to show before it is allowed to require a journalist to provide testimony or produce documents • Lower the standard for how important the information sought needs to be to the successful completion of the case in which the information sought.

26. Other Current National Protection Privacy Protection Act (PPA) (1980) • Prohibits government officials from searching or seizing the documents of people "reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication." • Can be seized if there is probable cause to believe the publisher is involved in the criminal offense. • Forces law enforcement to use subpoenas to obtain evidence from journalists, due to protection from the first amendment

27. Opposition to Journalist Rights • Branzburg vs.Hayes (1972) • Court decided that the first amendment does not provide immunity from having to testify before a jury • As a result, 10 states adopted shield laws • Nixon Administration voluntarily adopted internal guidelines discouraging issuing subpoenas to journalists

28. Sources: www.bc.edu Kohler, David “Forty Years After New York Times v. Sullivan: The Good, the Bad, and the Ugly” www.law.jrank.org www.law.umkc.edu www.legal-dictionay.thefreedictionary.com www.northwestern.edu http://www.washingtonpost.com/wp-dyn/content/article/2005/10/02/AR2005100201237.html http://www.spj.org/shieldlaw-2102.asp http://www.privacilla.org/government/privacyprotectionact.html