Last Updated: May 20, 1999
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Mortification
First Amendment law enters a new season as litigants
use common law claims and torts to protest stories they don’t like — and
newsgatherers disavow their own stories
What does it say about the American press or the condition of First
Amendment law at the turn of the century that the Gannett Co. has paid
Chiquita Brands more than $10 million and “renounced” a lengthy investigative
report, substantial parts of which may have been true?
It is a watershed moment for the press. It tells us we have entered
a dangerous new season. The days of “we-don’t-settle” libel litigation
are over. Libel, it turns out, may have been the least of Gannett’s worries.
Aggressive, well-funded business interests, public figures and celebrities
of every stripe are using a new array of tort and common law claims to
attack enterprise reporting. The assaults on newsgathering are finding
receptive audiences in court. Judges, it should come as no surprise, harbor
the same deepening contempt for the news media that is abroad in the land.
Show me the money
This June, it was the money that stunned people first — a settlement
north of $10 million paid to avert a morass of litigation. The Cincinnati
Enquirer’s front-page apology was published on three separate days. A confidentiality
agreement silenced any exculpatory explanations. There would be no spinning
here.
Kirkland & Ellis, the Chicago law firm that had helped General Motors
demolish “Dateline NBC’s” story on exploding trucks, drove a hard bargain
for Cincinnati financier Carl Lindner and his international fruit empire.
Beyond the breathtaking monetary settlement came the disturbing recognition
that the Enquirer may have been squeezed to disavow a story with truthful
elements. The newspaper’s carefully crafted apology for “creating a false
and misleading impression of Chiquita’s business practices” seemed to be
limited to information gathered through reporter Mike Gallagher’s interception
of company voice-mail messages. There was no explicit retraction of the
factual underpinnings or all key allegations of the 18-page series.
Two weeks after the apology, however, The New York Times reported that
“some of the allegations (of Chiquita’s chicanery) cannot be dismissed”
as easily as the banana giant might want. “Determining the validity of
the newspaper’s claims is difficult,” the Times said in a lengthy assessment
by Douglas Frantz headlined “Chiquita Still Under Cloud After Newspaper’s
Retreat.” The Securities and Exchange Commission continues to investigate
assertions in the article that the company covered up a bribery scheme
by employees in Colombia.
At the heart of the mystery lay one immutable truth: The editorial integrity
of a newspaper (and its financial foundation) depends upon the journalistic
integrity of its reporters. Theft is not protected First Amendment activity.
Professional practices in newsgathering determine whether a newspaper prevails
in a libel case or in a new generation of legal assaults aimed specifically
at how reporters do their work, not the published fruits of their labors.
Evaporating rights
The predicament posed by the Chiquita episode flows from the press’
failure to win substantial constitutional protection for newsgathering.
It tried to secure that protection — and gained a foothold — in Branzburg
vs. Hayes, a 1972 case before the Supreme Court. By the narrowest of margins,
the court rejected a journalist’s privilege to shield confidential sources
before a grand jury. But Justice Byron White’s plurality opinion threw
a crumb to the media, noting that “without some protection for seeking
out the news, freedom of the press could be eviscerated.” This wobbly endorsement
is the closest the court has come to validating newsgathering as an indispensable
part of journalistic freedoms.
While the First Amendment in the areas of libel, prior restraint, publication
of so-called private facts, and access to judicial proceedings continued
to develop throughout the 1970s and the early-to-mid 1980s, protection
for newsgathering lagged behind, the weakest link in the chain. During
the last 10 years, the development of all areas of First Amendment law
has stagnated. Expansion of existing rights, let alone the establishment
of new ones, has evaporated as the air has filled with the public’s rising
anger toward the media. The cases that the Supreme Court has decided in
the last decade have focused more on how the press operates, not what it
publishes. In the most important ruling, Cohen vs. Cowles Media Co., the
court held that the Constitution does not forbid states from imposing liability
on news organizations for broken promises made to sources.
Ironically, the success of the press in constructing a bulwark against
libel claims only refocused a bombardment against newsgathering techniques.
Thus, in North Carolina, ABC defends not a libel claim but its use of hidden
cameras in an investigation of grocery chain Food Lion. In Maine, NBC defends
itself against charges that its correspondent misrepresented how “positive”
a story on the trucking industry would be.
Both networks lost at trial.
And these are only civil cases. As Eve Burton, vice president and assistant
general counsel of The Daily News in New York, observed recently in Communications
Lawyer magazine, courts and law enforcement officials are finding “increasing
comfort in using criminal statutes” to impede newsgathering. She identifies
three types of laws that the government has turned into weapons against
the press: criminal contempt and aiding and abetting; disorderly conduct,
assault and obstruction of justice; and trespass and impersonation. These
days, even Justice White’s half-hearted sentiment looks hollow.
At the same time that courts are halting constitutional advances and
expressing hostility toward the media’s use of the freedoms it already
possesses, the academic community has turned away from expansionist views
of the First Amendment to an emphasis on “media responsibility.” Scholarship
has experienced a noticeable shift in focus from privileges to obligations.
The seminal First Amendment article of a generation ago was Vincent Blasi’s
“The Checking Value in First Amendment Theory,” an ode to the press’ valuable
role as guardian of a democracy. A quick tour through today’s journals
turns up titles such as “Punishing the Press: Using Contempt of Court to
Secure the Right to a Fair Trial” and “Leaks, Gags and Shields: Taking
Responsibility.”
Building (and settling) smart
However vulnerable news organizations may feel, it is time for the press
to develop a long-term strategy, as it did during the 1970s and 1980s when
it built modern libel law case by case on the frame provided by New York
Times vs. Sullivan. A long-term strategy to convince courts of the need
to give newsgathering a measure of protection will require some savvy judgments
about when to settle cases and when not to bring them at all. In other
words, when to hold ’em and when to fold ’em.
Those kind of judgments built American libel law into a coherent body
of cases providing substantial “breathing space” for the press to report
falsity in the search for truth.
Employing a smart litigation strategy means not only crafting persuasive,
carefully-tailored arguments but choosing cases with “good” facts. Obviously,
for instance, the law prefers to see reporters receive stolen documents
“over the transom” than to have them participate in their heist. Yet, some
forms of reportorial skullduggery or symbiosis with sources ought to be
permitted in the search for important truths about public affairs.
We do not have to countenance lawbreaking as a protected newsgathering
technique to recognize that reporters should not be seen in nebulous situations
as common criminals. They have neither the criminal intent strictly required
by our criminal law nor the same purposes as mafioso.
In other times, courts might have readily agreed. In the 1960s, when
the press’ problems in court often sprang from its efforts to cover the
civil rights movement, news organizations made appealing litigants. A media
that shadows every move of Monica Lewinsky and encircles Washington’s federal
courthouse with satellite trucks to “cover” virtually nothing does not
evoke the same sympathy.
We can hardly be surprised that the press has fared badly in access
cases brought in the Paula Jones case and Kenneth Starr’s investigation.
“Driven by profit and intense competition, gossip, speculation, and innuendo
have replaced legitimate sources and attribution as the tools of the (journalistic)
trade,” fumed Judge Susan Webber Wright last spring when rejecting a media
challenge to her pretrial gag order. The press earns more than a judicial
tongue-lashing for bringing such claims — it sets adverse precedent.
The obvious corollary to settling or not pursuing unattractive cases
is selecting and shaping the right ones. Typically, the “right stuff” will
invoke core First Amendment principles, such as articles that expose serious
corruption in political institutions or report on powerful private influences
on our public life. Building broader constitutional protection for newsgathering
is ultimately good business, too. “Boy, I think the truth is great,” Ben
Bradlee said at a speech at Harvard in 1991. “You sell a lot of papers
from the truth.”
Sanford, a partner in the Washington office of Baker & Hostetler,
is a prominent First Amendment lawyer.
Bruce D. Brown of Baker & Hostetler contributed to this article.
