American Bar Association
Forum on Communications Law

Should There Be Journalist's Privilege Against Newsgathering Liability?


On October 20, 1999, the constitutional protections extended to the media to investigate and report newsworthy matters of public concern were simultaneously restricted and extended. In Food Lion, Inc. v. Capital Cities/ABC, Inc., a three-judge panel of the Fourth Circuit upheld the application of generally applicable laws to limit certain newsgathering methods available to investigative journalists, while at the same time precluding an award of reputational damages for newsgathering conduct absent compliance with constitutional free speech protections.

In a highly publicized trial, Food Lion, the grocery giant, contended that two Capital Cities/ABC, Inc. (ABC) television reporters obtained positions in Food Lion stores in South Carolina and North Carolina under false pretenses to secretly videotape alleged unsanitary meat-handling practices for a PrimeTime Live broadcast.2 The broadcast, which aired nationally, showed hidden-camera footage taken at the Food Lion stores by the ABC reporters and was highly critical of Food Lion's food-handling practices.3 Food Lion sued ABC, the two ABC television reporters, and producers of PrimeTime Live (referred to collectively as the ABC defendants) for fraud, trespass, breach of the duty of loyalty, and unfair trade practices, based on the methods used by ABC to obtain hidden-camera video footage for the broadcast.

Food Lion obtained a jury verdict against the ABC defendants on its fraud, trespass, and breach-of-the-duty-of-loyalty claims, and the trial court determined from the jury's findings that the ABC defendants had also violated the North Carolina Unfair and Deceptive Trade Practices Act.5 The jury awarded Food Lion compensatory damages in the amount of $1,402.6 Then the jury lowered the boom, hitting the corporate defendants and producers, but not the reporters, with punitive damages in excess of $5.5 million on the fraud claim.7 The trial court judge reduced the amount of punitive damages to $315,000.

The ABC defendants appealed the post-trial denial of their motion for judgment as a matter of law, and Food Lion cross-appealed on the pretrial ruling excluding proof of publication damages, including lost sales and loss of goodwill.9 The Fourth Circuit reversed the judgment that the ABC defendants had committed fraud and unfair trade practices but affirmed the judgment that they had breached their duty of loyalty and committed trespass, and further affirmed, on First Amendment grounds, that the district court properly refused to allow Food Lion to prove publication damages based upon its nonpublication state law claims.10 At the end of the day, the ABC reporters were found liable for $2 in nominal damages, $1 for trespass, and $1 for breach of the duty of loyalty. Prior to Food Lion, a number of courts had attempted to balance the competing interests at stake when newsgathering conduct was put on trial, even when faced with the alleged violation of a generally applicable law. However, the Food Lion decision represents a growing trend among courts in which the interest in newsgathering, supposedly of constitutional import, is never balanced against the interests of the plaintiff. The present state of the law permits judges throughout the nation to decide for themselves whether to balance the interests at stake when newsgathering conduct is challenged as tortious or unlawful. It is time to implement a uniform analysis that would apply in all civil cases where the federal constitutional right to gather the news appears to conflict with the application of generally applicable laws. A limited journalist's privilege to gather the news, applicable in civil actions concerning matters of public concern where only certain damages are claimed, is one form of analysis that would bolster First Amendment protection for the media and drastically reduce the disparate judicial outcomes occurring nationwide.11

This article briefly examines the origins of the First Amendment protection of newsgathering activity and the judicial treatment of civil claims concerning surreptitious newsgathering by media entities carried out for the purpose of furthering a news publication for dissemination to the general public. The article then proposes a limited journalist's privilege that would be available as an affirmative defense in a civil action by a media defendant where (1) the underlying conduct constitutes a traditional or routine newsgathering practice for publication relating to a matter of legitimate public concern, and (2) the claimed damages are unrelated to personal physical injury, property damage, or intrusions into a person's home. The adoption of a newsgathering privilege would force judges to explicitly evaluate the constitutional repercussions of applying a supposed generally applicable law to the newsgathering efforts of a member of the media.

Newsgathering and the First Amendment
Newsgathering efforts are obviously directly related to the ability of media entities to publish the results of their investigations. As such, the protection afforded the media to engage in newsgathering activities can be as important as the right to publish the news. Yet, the U.S. Supreme Court has been slow to fully acknowledge the constitutional significance of newsgathering activities.

In the 1972 case of Branzburg v. Hayes,12 in which the U.S. Supreme Court held that a reporter cannot invoke a First Amendment privilege to avoid disclosing confidential sources in response to a grand jury subpoena, the Court stated that implicit in the right to publish the news is the right to gather the news.13 The Court later confirmed the constitutional protection afforded newsgathering activities by the press in Houchins v. KQED, Inc.,14 noting that there is an "undoubted right to gather news from any source by means within law."15 The Court articulated the rationale in Smith v. Daily Mail Publishing Co.,16 noting that because a free press "cannot be made to rely solely upon the sufferance of government to supply it with information, the First Amendment protects the right of journalists to lawfully obtain information" using routine reporting techniques.17 Some lower courts have interpreted this line of cases to mean that a balancing test must be employed when newsgathering conduct is challenged.

In fact, the U.S. Supreme Court relied on the Branzburg pronouncement to recognize a constitutional right of the press and the public to attend criminal trials in Richmond Newspapers, Inc. v. Virginia.19 Justice Byron White, writing the plurality opinion, stated that "[i]t is not crucial whether we describe this right to attend criminal trials to hear, see and communicate observations concerning them as a 'right of access,' or a 'right to gather information,' for we have recognized that 'without some protection for seeking out the news, freedom of the press could be eviscerated.'

Nevertheless, many lower courts have not accepted the existence of any constitutional right to gather the news, instead relying upon the early U.S. Supreme Court case of Associated Press v. NLRB,21 in which the Court held that "the media has no special immunity from the application of general laws."22 For example, in Galella v. Onassis the Second Circuit issued a restraining order against a photographer, specifically noting that "crimes and torts committed in newsgathering are not protected" by the First Amendment.24 Subsequent decisions confirm that many lower courts have not applied an explicit First Amendment right to gather the news where such activities are challenged as tortious or otherwise unlawful.

Many lower court decisions have come to rely upon the 1991 opinion in Cohen v. Cowles Media Co.,26 in which the U.S. Supreme Court, in a five-to-four decision, distinguished between publication and prepublication matters, holding that laws of general application concerning prepublication activities are not subject to the same First Amendment protections afforded publication of stories by the media.27 In Cohen, a confidential informant sued a newspaper, asserting a breach of contract claim and a theory of promissory estoppel after the newspaper violated a confidentiality agreement not to disclose the informant's name. The newspaper contended that the state could not punish the truthful publication of information lawfully obtained, absent a showing of a state interest of the highest order.28 The U.S. Supreme Court held that the defendants were not exempt from contract or tort liability simply because their actions occurred while engaged in newsgathering.29 The law of promissory estoppel is one of general application; thus, the enforcement of such a law against a member of the media does not run afoul of the First Amendment. The Cohen Court relied on the fact that New York Times Co. v. Sullivan30 protected the media only from causes of action concerning the publication of a story, not torts or crimes committed before publication.31 Yet, this analysis seems at odds with the principle set forth in Branzburg, Houchins, and Smith, all of which acknowledge at least some First Amendment right to gather the news, whatever the contours of that right may be.

If the rationale of the Cohen decision were taken to its logical conclusion, no constitutional principle would preclude a state from making it unlawful to perform essential newsgathering functions, such as the filming of public events. On the other hand, the principle articulated in Branzburg could operate to invalidate the law as an unconstitutional infringement of free speech rights. Unfortunately, the Houchins and Smith decisions muddied the waters by tempering the Branzburg principle with language such as "limits of the law" and "lawfully obtained." To say that the media must operate lawfully or within the limits of the law simply begs the question: What are the legitimate limits of the law as applied to a member of the media engaged in gathering and publishing the news?

Justice David Souter, writing the dissent in Cohen and joined by Justices Marshall, Blackmun, and O'Connor, rightfully argued that there "is nothing talismanic about neutral laws of general applicability, for such laws may restrict First Amendment rights just as effectively as those directed specifically at speech itself."32 Justice Souter went on to conclude that the existence of a generally applicable law is not dispositive; rather, it is necessary to "articulate, measure, and compare the competing interests involved in any given case to determine the legitimacy of burdening constitutional interests."33 Indeed, the U.S. Supreme Court has repeatedly applied a balancing test when content-neutral laws significantly burden activity protected by the First Amendment.

As the California Court of Appeal held in Nicholson v. McClatchy Newspapers,35 "the First Amendment protects the ordinary news gathering techniques of reporters and those techniques cannot be stripped of their constitutional shield by calling them tortious."36 Hence, there must be a principle that limits the power of government to constrain legitimate newsgathering activity. Whatever that principle may be, it cannot be found in Cohen, Food Lion, or the other lower court decisions that refuse to acknowledge a First Amendment right to gather the news.

More is at stake than penalizing newsgathering activity through state tort law. The function of many, if not all, newsgathering tort cases is to circumvent the more stringent requirements of a defamation action. As such, these cases are an unconstitutional attempt to impose liability upon media defendants without satisfying the constitutional requirements imposed by New York Times Co. v. Sullivan and its progeny. Therefore, these cases run afoul of Hustler Magazine v. Falwell,37 in which the U.S. Supreme Court rejected an intentional-infliction-of-emotional-distress claim where the requirements of a libel claim were not satisfied. Although supporters of the Cohen decision would argue that Hustler Magazine v. Falwell involved a publication and that most newsgathering tort cases do not, the fact remains that a publication adverse to the plaintiff's economic interests almost always serves as the impetus for filing a newsgathering case against a media defendant. Protection of newsgathering activities is paramount if publication of the results of newsgathering is to receive full constitutional protection.

Judicial Treatment of Newsgathering
Lower courts have traditionally addressed newsgathering conduct through causes of action relating to the privacy or property interests of the plaintiff. These claims typically fall into three categories: (1) common law invasion of privacy, (2) statutory wiretapping, and (3) trespass. Judicial treatment of these categories is addressed below.

Invasion of Privacy
William Prosser identified four subspecies of the tort of invasion of privacy: (1) intrusion upon the solitude or seclusion of another, (2) public disclosure of embarrassing private facts, (3) false light invasion of privacy, and (4) appropriation of a name or likeness for financial gain.38 All three categories can directly implicate free speech protections, but the first category alone can also involve newsgathering conduct as a precursor to speech. As such, the tort of intrusion during newsgathering has not typically been evaluated under the same constitutional free speech protections that are used to analyze the other invasion of privacy torts.

For example, where an invasion of privacy claim is based on a publication, courts more readily acknowledge the First Amendment interests at stake. In McNamara v. Freedom Newspapers, Inc.,39 a newspaper published a photograph taken at a public event that showed the genitalia of a student, and the student sued for invasion of privacy. The defendant newspaper contended that an award of damages for the publication of a photograph taken at a public event would violate the Free Speech Clauses of the U.S. and Texas Constitutions.40 The court concluded that the First Amendment protects the reporting of private facts when discussed in connection with matters customarily regarded as news.41 Since the published photograph accurately depicted a public newsworthy event, the newspaper was immune from liability under the U.S. and Texas Constitutions.

In contrast, courts have been reluctant to acknowledge the same First Amendment interests when the case involves an intrusion claim during newsgathering. In Dietemann v. Time, Inc.,43 the media defendant recorded and photographed an impostor who was ultimately convicted for the unauthorized practice of medicine. The court permitted an invasion-of-privacy-by-intrusion claim to proceed without balancing the competing interests at stake. In fact, the subsequent publication of the recording and photographs were admitted into evidence on the issue of damages.44 The court concluded that the First Amendment "is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office."45 Similarly, in Le Mistral, Inc. v. CBS,46 a New York court gave short shrift to a constitutional right to gather the news, commenting that the First Amendment "is not a shibboleth before which all other rights must succumb."47

Courts most often avoid constitutional issues by resolving intrusion claims through the application of common law principles. For instance, courts typically hold that it is not an invasion of privacy to photograph or record a person in and from a public place.48 Nevertheless, courts have acknowledged the necessity of balancing an individual's claim of right to privacy with the constitutional right to gather and report the news.49 In Galella,50 a case typically cited as an example of restrictions placed on newsgathering activity, the court stated that "legitimate countervailing social needs may warrant some intrusion despite an individual's reasonable expectation of privacy."51 In Cassidy v. ABC,52 the Illinois Court of Appeals held that no tortious intrusion claim existed based on a television station's filming of an undercover police officer's investigation of a massage parlor through a camera installed behind a two-way mirror. The court considered the public interest in the police officer's conduct to be paramount in relation to the privacy interest of the individual.53 The status of the policeman as a public official "is tantamount to an implied consent to informing the general public by all legitimate means regarding his activities in discharge of his public duties."

In Sanders v. ABC, a decision generally not regarded with favor by the media, the California Supreme Court reversed an appellate court's ruling that a reporter's hidden microphone recording of conversations with employees of a "psychic hotline" did not state an actionable claim for intrusion. The appellate court had concluded that there was no reasonable expectation of privacy, especially since the privacy claim "implicates First Amendment freedom of the press issues, resolution of which requires care lest we improperly restrict press freedom."56 The California Supreme Court reversed, disagreeing that there was no legitimate expectation of privacy at stake. However, the court left some hope for protection of newsgathering efforts, stating that "[n]othing we say here prevents a media defendant from attempting to show, in order to negate the offensiveness element of the intrusion tort, that the claimed intrusion, even if it infringed on a reasonable expectation of privacy, was 'justified by the legitimate motive of gathering the news.'"57 Such a motive was used to defeat an intrusion claim in Medical Laboratory Management Consultants v. ABC,58 in which the court concluded that a hidden camera recording of conversations in an office was not highly offensive due to the public interest at stake.

A more powerful exposition of the protection afforded the "newsgathering motive" was offered in Shulman v. Group W Productions, Inc.,60 where an accident victim's statements to a rescue worker were recorded with a wireless microphone. The court concluded that the victim had a reasonable expectation of privacy in her communications with the worker, creating a fact issue on the intrusion claim.61 However, the court cautioned that any intrusion must be "highly offensive," and a reporter's alleged intrusion may not meet this standard to the extent that "the intrusion was, under the circumstances, justified by the legitimate motive of gathering the news."62 The court went on to note that information-collecting techniques that may be offensive when done for other socially unprotected reasons "may not be offensive to a reasonable person when employed by journalists in pursuit of a socially or politically important story."63 Where newsgathering is at stake, a court must balance the journalistic motive against the particular investigative methods used, such that routine reporting techniques would "rarely, if ever be deemed an actionable intrusion."

The Federal Wiretap Act65 generally prohibits the interception of a wire or oral communication, in circumstances justifying a reasonable expectation of privacy, and the use or disclosure of such a communication with knowledge or reason to know that the information was obtained in violation of the act.66 The Federal Wiretap Act and similar state statutes implicate constitutional protections afforded newsgathering activity.

For example, in Peavy v. Harman,67 the U.S. District Court for the Northern District of Texas held that the use and disclosure provisions of the federal and Texas wiretapping statutes were unconstitutional as applied to a media defendant where the defendant had no role in the alleged illegal interception of the communication.68 The Peavy court acknowledged that the case "presents a classic conflict between the right to privacy and the right of a free press to publish truthful and newsworthy information."69 Although the Peavy court recognized that the First Amendment does not give the media a license to violate the law, the court also concluded that the privacy interest protected by the federal and state wiretapping laws must yield to the more significant rights established by the First Amendment. Although statutory rights are important, they "fare poorly against the constitutional rights of a free and unfettered press."70 More recently, the Third Circuit in Bartnicki v. Vopper71 held that the use and disclosure provisions of the federal wiretapping statute are unconstitutional as applied to a media defendant that broadcast the intercepted conversation but did not participate in the interception of the communication.

Even without applying constitutional safeguards, the media will often escape liability under the Federal Wiretap Act for newsgathering conducted in public places. Courts generally require that the circumstances surrounding the alleged interception create a reasonable expectation of privacy, which is absent in public places.72 For example, in Brooks v. ABC,73 a federal district court considered whether the recording of a conversation on a public street without consent by a media entity constituted an illegal interception of an oral communication. The court interpreted the Federal Wiretap Act to preclude a cause of action for illegal interception when the alleged communication occurs on a public street, since the statute is designed to protect only "private" conversations.74 In Holman v. Central Arkansas Broadcasting,75 the Eighth Circuit addressed a federal wiretapping claim based on a radio station publishing an interview of a prisoner that was taped by a reporter from the public area of a jail. The wiretapping claim was dismissed on grounds that the plaintiff knew that he was being interviewed and was conducting himself in a manner that would attract attention.76 In Wilkins v. NBC,77 the California Court of Appeal held that surreptitious recording of a conversation in an open patio area of a restaurant did not give rise to liability under the state wiretapping statute.

There is a paucity of authority analyzing the Federal Wiretap Act and similar state statutes under First Amendment principles with respect to media liability for illegally intercepting wire or oral communications. The case law suggests that these statutes will be treated as "generally applicable laws," meaning that attempts to invalidate the interception prong of these laws on First Amendment grounds will not succeed.79 For example, in Shevin v. Sunbeam Television Corp.,80 the Florida Supreme Court held that the Florida wiretapping statute did not infringe on the constitutional right of a reporter to gather the news.

The media enjoy an almost absolute right to conduct newsgathering activities in and from public places, as a result of both common law principles and First Amendment protection.81 Even the use of devices such as parabolic microphones and zoom lenses is not actionable as long as they are used in public places to record sounds and images in public earshot or view.82 The more interesting question is whether the media are entitled to invoke the First Amendment as a defense to newsgathering that occurs on private property without the owner's consent or with consent induced by false pretenses.

Courts have almost universally rejected any First Amendment right to engage in newsgathering conduct falling within the common law definition of trespass. For example, in Copeland v. Hubbard Broadcasting, Inc.,83 a student working for a television station visited the home of the plaintiff, along with a veterinarian, and secretly videotaped the visit.84 The television station then aired an investigative news story concerning veterinarian practices in the local area, using footage recorded by the student employee at the plaintiff's home.85 The court held that since the plaintiff only consented for the student employee to visit while accompanying the veterinarian, and not for the purpose of videotaping and broadcasting the visit, the defendant exceeded the scope of the plaintiff's consent.

Similarly, in Le Mistral,87 a reporter and camera crew employed by the defendant entered the plaintiff's restaurant in a noisy manner after the restaurant had been cited for health code violations.88 Some customers chose to leave the premises due to the presence of cameras, even though the camera crew was there for only a few minutes.89 The court upheld an award of compensatory damages totaling $1,200 against the defendant and allowed for a finding of punitive damages.90 In rejecting any constitutional right that would preclude a trespass claim, the court contended that the First Amendment does not override all other rights.

An important decision that explicitly balanced the media's interest in newsgathering with the plaintiff's property interest in the context of a traditional trespass claim is Allen v. Combined Communications Corp.92 In Allen, a Colorado court analyzed whether a television station could commit an otherwise actionable trespass when pursuing a news story. The court held that whether a trespass had occurred must be evaluated from the perspective that "newsgathering is an integral part of news dissemination."93 The news media, as the primary purveyors of news of general interest to society, must be accorded the First Amendment-based right "to acquire the news beyond that of the general public."94 The court went on to hold that heightened requirements were necessary for a plaintiff to establish a trespass claim against the media for newsgathering activity.

Members of the media often use false pretenses to gain access to nonpublic areas. Perhaps the most famous investigative news story of the nineteenth century involved deception. Upton Sinclair posed as a meatpacker at a Chicago slaughterhouse in the early part of this century and witnessed several unsanitary conditions, including insects and rat feces mixed with meat. Sinclair chronicled the conditions that he observed in his landmark book entitled The Jungle,96 which resulted in tighter regulation of the meatpacking industry and passage of the Pure Food and Drug Act of 1906. There have been countless investigative news stories involving some form of deception since The Jungle was published that have led to important public action and reform.

In the fraudulent consent case of Desnick v. American Broadcasting Co.,97 the Seventh Circuit held that a PrimeTime Live investigation using hidden cameras did not run afoul of state trespass laws. ABC had conducted an investigation of an ophthalmologist's clinic due to claims that unnecessary cataract surgeries were being performed. To test these claims, ABC sent undercover reporters, disguised as patients, to tape examinations at the clinic with hidden cameras. The Desnick court rejected a claim for trespass, reasoning that the intent of the ABC test patients was irrelevant to whether consent to physical presence on the plaintiff's property had been obtained.98 Even if the plaintiff would have revoked consent to entry onto his property had he known of the intent of the undercover reporters, the surreptitious videotaping did not constitute an interference with the ownership or possession of land, which the tort of trespass is designed to protect.99 In Baugh v. CBS,100 a federal court applying California law held that a trespass claim can be sustained where the defendant exceeds the scope of the consent, but not where consent is fraudulently induced.

More recently, in Food Lion, the Fourth Circuit rejected a fraudulent consent claim based on the ABC reporters' résumé misrepresentations that allegedly caused Food Lion to consent to their presence as employees in nonpublic areas of the grocery stores.102 However, the court concluded that the reporters had exceeded the scope of Food Lion's consent by breaching their duty of loyalty to Food Lion.103 By videotaping with hidden cameras in nonpublic areas of the stores in a manner contrary to the interests of Food Lion, the ABC reporters were engaged in wrongful acts in excess of their authority to enter Food Lion's property as employees.

Unfortunately, these decisions resolve the consent issue exclusively on common law grounds. Decisions exhibiting First Amendment sensitivity to the newsgathering function in trespass cases are few and far between. The overwhelming majority of opinions addressing physical trespass claims against the media without the express or implied consent of the owner fail to recognize any First Amendment concerns with imposing liability. Courts generally permit nominal damages against the media for trespass claims, as did the Fourth Circuit in Food Lion.105 Yet, in many instances, there is a clear public interest in obtaining information regarding activity on private property that may affect the public's health and safety.106 Moreover, the law of trespass is designed to protect a possessory interest in property, including a right to exclude, which in most cases is not substantially impaired when media entities gain access for the sole purpose of newsgathering. The media should not have open-door privileges to all private property, nor should all private property owners recover damages for trespass in every newsgathering circumstance. Each trespass claim should be weighed against the First Amendment interest at stake.

A Newsgathering Privilege?
The Fourth Circuit's decision in Food Lion received mixed reviews from members of the media. On the one hand, the court in Food Lion finally articulated the ambiguous principle set forth in the U.S. Supreme Court decision in Hustler Magazine107 that a party cannot make an end run around First Amendment protections by creatively pleading a cause of action that does not require the same standard and burden of proof as a defamation action in order to obtain reputational damages.108 On the other hand, the court failed to take seriously the admonition of the U.S. Supreme Court in Branzburg109 that newsgathering is entitled to First Amendment protection, however vague and undefined the level of protection may appear. The court refused to balance the interests at stake in determining whether, under the specific facts presented, the state laws at issue were being applied in a manner that impinged on constitutionally protected newsgathering activities to an unacceptable degree. Instead, the mere existence of a generally applicable law shut down all further analysis. Fortunately for ABC, only nominal damages were sustained for the surviving trespass and breach-of-the-duty-of-loyalty claims.

As the Fourth Circuit recognized in Food Lion, a long line of precedent establishes that the newsgathering techniques employed by the media are subject to generally applicable laws that do not single out the media or have more than an incidental effect on the media.

However, another line of precedent, originating with the U.S. Supreme Court, confirms that newsgathering activity is entitled to federal constitutional protection.111 If coherency in the law and consistency of outcome are to have any value, these two conflicting concepts must be reconciled. What type of analysis should a court apply when a generally applicable law stifles the media's newsgathering efforts, when such efforts are based on traditional or common investigative and reporting techniques? A practical solution to this problem, which favors the First Amendment interests at stake, is the judicial adoption of a constitutionally grounded newsgathering privilege. Although many jurisdictions recognize a qualified journalist's privilege to refuse to disclose confidential and, in some cases, nonconfidential sources of information,112 the newsgathering privilege would be asserted in the defense of a civil action alleging violation of a statute or common law tort while engaged in newsgathering activity.

The privilege must be narrowly defined. First, the privilege would only be available in civil actions. Second, the privilege could only be invoked by a member of the broadcast or print media, which must be defined broadly enough to encompass dissemination of news to the general public without including every person with pen and paper. Third, the privilege would only apply if the conduct made the basis of the action (1) constituted an activity routinely associated with traditional or common newsgathering efforts, (2) was engaged in for the sole purpose of furthering publication of news for dissemination to the general public, and (3) related to a matter of legitimate public concern and interest. Finally, the privilege could only be asserted where the damages claimed did not involve (1) personal physical injury, including loss of life, or destruction or diminution in value of tangible property, or (2) intrusion into the seclusion of another where the underlying conduct occurred in a person's home.

Limited to Civil Actions
The first requirement limits the availability of the privilege to civil actions, where public policy often demands that the conflicting interests of the parties be weighed and adjudged. Criminal proceedings, however, are not susceptible to a "balancing of interests" approach, primarily because criminal laws and their enforcement are designed to protect the general public, not just the interest of an individual. Moreover, criminal laws are by definition punitive in nature; thus, numerous constitutional protections are already extended to the criminal defendant, including greater due process rights that are not available to a civil defendant.

Limited to Media
The second requirement merely limits the availability of the privilege to members of the media. Although First Amendment free speech and free press values may be broadly construed to include speech and conduct beyond the "media," there must be some limiting principle that circumscribes protected newsgathering activity. Such distinctions are routinely made in applying common law privileges, such as the fair comment and reportage privileges. In some states, civil statutes provide certain benefits exclusively to members of the media. In Texas, for example, a media defendant may file an interlocutory appeal from the denial of a summary judgment where a defense is based in whole or in part on the First Amendment, article I, § 8 of the Texas Constitution, or on the Texas libel statute.

Limited to Newsgathering
The third requirement goes to the heart of the privilege. Limiting the privilege to traditional or common newsgathering efforts may constrain development and use of new investigative techniques, but it is hard to argue a substantial impact on newsgathering as a whole if the techniques used are uncommon. Limiting protection to activities engaged in for the sole purpose of furthering publication of news for dissemination to the general public merely recognizes the constitutional dimension afforded the media's role in gathering and reporting news. Moreover, the newsgathering effort must relate to a matter of legitimate public concern and interest, which ensures that members of the media do not abuse the privilege of conducting personal missions unrelated to the public interest.

Finally, the newsgathering privilege would be limited to actions that do not involve personal physical injury, property damage, or intrusion into a person's home. This limitation recognizes the substantial interest of the state in obtaining compensation for individuals who have suffered significant injury, while assuring the media defendant that nominal or small actual damage claims will be promptly dismissed. With respect to intrusion claims relating to a person's home, only a First Amendment absolutist would reject a public policy that limits unauthorized newsgathering activities in a person's home.

Procedurally, the newsgathering privilege would be raised as an affirmative defense. The court would then determine, as a matter of law, whether the defendant is eligible to invoke the privilege and whether the other elements of the privilege have been satisfied. If the elements are proven and the case involves the proper type of claimed damages, the case should be dismissed at the summary judgment stage of the litigation.

The advantages of adopting such a privilege include the promotion of First Amendment values, more consistency in judicial outcomes nationwide, a reduction in costly litigation, and more certainty over the legitimacy of various newsgathering activities. The downside for alleged targets of newsgathering conduct is minimal, since the targets would retain their own right to seek actual and exemplary damages for newsgathering conduct that violates generally applicable laws resulting in personal physical injury, property damage, or invasion of the privacy of the home. The bottom line is that some balancing of the interests at stake must be performed, and the less significant the interest of the individual seeking redress, the greater the weight afforded the constitutional right to gather the news.

Since the U.S. Supreme Court first explicitly recognized that there is some constitutional protection to gather the news, lower courts have struggled to reconcile this concept with precedent holding that a generally applicable law that does not single out the media is fully enforceable against a member of the media. Although the state laws applied in Food Lion did not "single out" the media, their application to ABC in the context of the PrimeTime Live broadcast arguably infringed on rights of constitutional dimension. The compensatory damages awarded were nominal, and the exemplary damages were thrown out. Nevertheless, ABC was forced to spend a large amount of time and money defending not only its own newsgathering practices, but also the First Amendment principles at stake that are relied upon by all members of the media. With so much at stake, neither the trial court nor the Fourth Circuit bothered to address the competing interests involved, instead falling back on the oft-repeated mantra that the laws at issue were of general application.

As the Food Lion decision reveals, courts are now routinely rejecting First Amendment analysis of claims arising from generally applicable laws as applied to members of the media. Yet, the U.S. Supreme Court has not backed away from its recognition of a First Amendment interest in newsgathering. To curtail disparate judicial outcomes based on inconsistent application of First Amendment principles, the idea of a limited newsgathering privilege, available only in civil actions involving media defendants, should be given consideration by the courts. If the privilege is limited to traditional or common newsgathering methods related to a subject matter of legitimate public concern and interest, where only certain damages are claimed, the privilege may prove workable. In any event, the privilege would require judges to seriously consider and balance the competing interests at stake.

Whether a limited journalist's privilege for newsgathering is adopted, a standard form of analysis is needed to ensure that courts are consistent in addressing claims against the media for their newsgathering activities.114 Without specific guidance for the judiciary, members of the media will continue to be haled into court to defend their newsgathering efforts, never sure what the outcome will be. It is ultimately the public that suffers, as the chill on investigative reporting results in less disclosure of information on topics of public concern and interest. Where a legitimate public concern is at issue, the balance must be struck in favor of the public's right to know over the individual's interest in obtaining monetary damages for de minimis infringements of property, privacy, or contract interests.


1. 194 F.3d 505 (4th Cir. 1999).
2. Food Lion, 194 F.3d at 510-11.
3. Id. at 511.
4. Id. Food Lion's allegations that ABC violated civil RICO laws and the Federal Wiretap Act were dismissed by the trial court. Food Lion, Inc. v. Capital Cities/ABC, Inc., 887 F. Supp. 811 (M.D.N.C. 1995).
5. Food Lion, Inc. v. Capital Cities/ABC, Inc., 984 F. Supp. 923, 927 (M.D.N.C. 1997), aff'd in part and rev'd in part, 194 F.3d 505 (4th Cir. 1999).
6. Id.
7. Id.
8. Id. at 938-39.
9. Food Lion, 194 F.3d at 510, 522-23.
10. Id. at 510.
11. Similar positions designed to protect the media from tort liability for newsgathering have been advocated previously. See, e.g. Note, Food (Lion) for Thought: Does the Media Deserve Special Protection Against Punitive Damage Awards When It Commits Newsgathering Torts?, 45 WAYNE L. REV. 203 (1999) [hereinafter Food (Lion) for Thought]; Andrew B. Sims, Food for the Lions: Excessive Damages for Newsgathering Torts and the Limitations of Current First Amendment Doctrines, 78 B.U. L. REV. 507 (1998); Paul A. Lebel, The Constitutional Interest in Getting the News: Toward a First Amendment Protection from Tort Liability for Surreptitious Newsgathering, 4 WM. & MARY BILL RTS. J. 1145 (1996); Note, Press Passes and Trespasses: Newsgathering on Private Property, 84 COLUM. L. REV. 1298 (1984); see also Rodney A. Smolla, Privacy and the First Amendment Right to Gather News, 67 GEO. WASH. L. REV. 1097, 1127 (1999) (discussing newsgathering privilege).
12. 408 U.S. 665 (1972).
13. Branzburg, 408 U.S. at 681.
14. 438 U.S. 1 (1978).
15. Houchins, 438 U.S. at 11.
16. 443 U.S. 97 (1979).
17. Smith, 443 U.S. at 103.
18. See, e.g., Desnick v. ABC, 44 F.3d 1345, 1355 (7th Cir. 1995); Allen v. Combined Communications Corp., 7 Media L. Rep. 2417, 2419 (BNA) (Colo. Dist. 1981).
19. 448 U.S. 555 (1980).
20. Richmond Newspapers, 448 U.S. at 576 (citations omitted).
21. 301 U.S. 102 (1937).
22. Associated Press, 301 U.S. at 132-33.
23. 487 F.2d 986 (2d Cir. 1973).
24. Galella, 487 F.2d at 995-96.
25. See, e.g., id. at 995-96; Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971); United States v. Sanusi, 813 F. Supp. 149, 155 (E.D.N.Y. 1992).
26. 501 U.S. 663 (1991).
27. Cohen, 501 U.S. at 669-70.
28. Id. at 668-69.
29. Id. at 670.
30. 376 U.S. 254 (1964).
31. Cohen, 501 U.S. at 669.
32. Id. at 677 (Souter, J., dissenting).
33. Id. at 678.
34. See, e.g., Frisby v. Schultz, 487 U.S. 474 (1988); United States v. O'Brien, 391 U.S. 367 (1968).
35. 223 Cal. Rptr. 58 (Ct. App. 1986).
36. Nicholson, 223 Cal. Rptr. at 59; see also Culver v. Port Allegheny Reporter Argus, 598 A.2d 54, 56 (Pa. Super. Ct. 1991) ("The right of privacy competes with the freedom of the press as well as the interest of the public in the free dissemination of news and information, and these permanent public interests must be considered when placing the necessary limitations upon the right of privacy.").
37. 485 U.S. 46 (1988).
38. William L. Prosser, Privacy, 48 CAL. L. REV. 383, 386-87 (1960).
39. 802 S.W.2d 901 (Tex. App.-Corpus Christi, 1991, writ denied).
40. McNamara, 802 S.W.2d at 903.
41. Id.
42. Id.
43. 449 F.2d 245 (9th Cir. 1971).
44. Dietemann, 449 F.2d at 245.
45. Id. at 249.
46. 3 Media L. Rep. 1913, 402 N.Y.S.2d 815 (N.Y. App. Div. 1978).
47. Le Mistral, 3 Media L. Rep. at 1913.
48. See, e.g., Wehling v. CBS, 721 F.2d 506 (5th Cir. 1983) (where broadcast only showed a residence as viewed from public street, no intrusion claim existed); Aisenson v. ABC, 269 Cal. Rptr. 379 (Cal. App. 1990) (filming of judge leaving home did not constitute an intrusion); Mark v. KING Broadcasting, 618 P.2d 512 (Wash. Ct. App. 1980), aff'd, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124 (1982) (filming of interior of pharmacy from street not actionable because footage recorded from public place); Cefalu v. Globe Newspaper Co., 391 N.E.2d 935 (Mass. Ct. App. 1979) ("The appearance of a person in a public place necessarily involves doffing the cloak of privacy which the law protects."); see also PETA v. Berosini, 895 P.2d 1269, 1279 (Nev. 1995) (photographing in publicly accessible place with people nearby not actionable); Kemp v. Block, 607 F. Supp. 1262, 1264 (D. Nev. 1985) (recording of conversations that could be overheard not actionable). The media can push the envelope by penetrating traditional zones of privacy; see Wolfson v. Lewis, 487 F.2d 986 (2d Cir. 1973) (shotgun microphones were repeatedly used to capture private conversations occurring at a person's residence).
49. See, e.g., Aisenson, 269 Cal. Rptr. at 387-88 (balancing interest in newsgathering against privacy rights); Nicholson, 223 Cal. Rptr. at 64 (balancing tort liability against restrictions on "routine reporting techniques"); Cape Publications, Inc. v. Bridges, 423 So. 2d 426, 427-28 (Fla. Dist. Ct. App. 1982), cert. denied, 464 U.S. 893 (1983) (balancing the right of privacy against the right of the press to report a legitimate news story); Gill v. Hearst Publ'g Co., 253 P.2d 441, 443 (Cal. 1953) (balancing privacy rights against public interest in dissemination of news).
50. Galella, 487 F.2d at 986.
51. Id. at 995.
52. 377 N.E.2d 126 (Ill. Ct. App. 1978).
53. Cassidy, 377 N.E.2d at 131-32.
54. Id. at 132.
55. 978 P.2d 67 (Cal. 1999).
56. Sanders v. ABC, 60 Cal. Rptr. 2d 595, 597 (Ct. App. 1997), rev'd, 978 P.2d 67 (Cal. 1999).
57. Sanders, 978 P.2d at 77.
58. 30 F. Supp. 2d 1182 (D. Ariz. 1998).
59. Medical Laboratory, 30 F. Supp. 2d at 1190.
60. 955 P.2d 469 (Cal. 1998).
61. Shulman, 955 P.2d at 492.
62. Id. at 493.
63. Id.
64. Id. at 494.
65. 18 U.S.C. § 2510 et seq. (1999).
66. Id. § 2511(1)(a)-(d).
67. 37 F. Supp. 2d 495 (N.D. Tex. 1999).
68. Peavy, 37 F. Supp. at 507.
69. Id. at 515.
70. Id. at 517.
71. 200 F.3d 109 (3d Cir. 1999).
72. See, e.g., Deteresa v. ABC, 121 F.3d 460, 465 (9th Cir. 1997), cert. denied, 118 S. Ct. 1840 (1998).
73. 737 F. Supp. 431 (N.D. Ohio 1990), aff'd in part, 932 F.2d 495 (6th Cir. 1991).
74. Brooks, 737 F. Supp. at 431.
75. 610 F.2d 542 (8th Cir. 1979).
76. Holman, 610 F.2d at 542.
77. 84 Cal. Rptr. 2d 329 (Ct. App. 1999).
78. Wilkins, 84 Cal. Rptr. 2d at 332.
79. See, e.g., Oregon v. Knobel, 777 P.2d 985 (Or. App. 1989); Shevin v. Sunbeam Television Corp., 351 So. 2d 723, 726-27 (Fla. 1977).
80. Shevin, 351 So. 2d at 723.
81. See, e.g., Wehling, 721 F.2d at 509 (finding no intrusion when defendant broadcast images of plaintiff's residence because the broadcast did not show more than what could have been seen from the public street); Frazier v. Southeastern Pa. Transp. Auth., 907 F. Supp. 116, 122 (E.D. Pa. 1995) (finding no intrusion when ongoing surveillance was conducted outdoors and in public), aff'd, 91 F. 3d 123 (3d Cir. 1996); Machleder v. Diaz, 538 F. Supp. 1364, 1374 (S.D.N.Y. 1982), op. after trial, 618 F. Supp. 1367 (S.D.N.Y. 1985), cert. denied, 479 U.S. 1088 (1987) (finding no intrusion when defendant conducted an "ambush interview" because the interview occurred in a semipublic place "visible to the public eye").
82. See, e.g., Aisenson, 269 Cal. Rptr. at 388 (involving use of an "enhanced lens" not actionable); Commonwealth v. Hernley, 263 A.2d 904, 906 (Pa. Super. Ct. 1970) (use of binoculars not actionable); State v. Vogel, 428 N.W.2d 272, 275 (S.D. 1988) (use of a zoom lens not actionable).
83. 526 N.W.2d 402 (Minn. 1995).
84. Copeland, 526 N.W.2d at 404.
85. Id.
86. Id. at 404-05.
87. 402 N.Y.S.2d 815 (N.Y. App. Div. 1978).
88. Le Mistral, 402 N.Y.S.2d at 816.
89. Id. at 817 n.1.
90. Id. at 818.
91. Id. at 817.
92. Allen, 7 Media L. Rep. at 2417.
93. Id. at 2419.
94. Id. at 2420.
95. Id.
97. 44 F.3d 1345 (7th Cir. 1995).
98. Desnick, 44 F.3d at 1352-53.
99. Id.
100. 828 F. Supp. 745 (N.D. Cal. 1993).
101. Baugh, 828 F. Supp. at 756-57.
102. Food Lion, 194 F.3d at 505.
103. Id. at 518.
104. Id.
105. Prahl v. Brosamle, 295 N.W.2d 768 (Wis. Ct. App. 1980).
106. See Lebel, supra note 11, at 1158.
107. Hustler Magazine, 485 U.S. at 46.
108. Food Lion, 194 F.3d at 522-23 (citing Hustler Magazine, 485 U.S. at 46).
109. Branzburg, 408 U.S. at 681 (stating that "without some protection for seeking out the news, freedom of the press could be eviscerated").
110. See, e.g., Cohen, 501 U.S. at 663 (1991); Galella, 487 F.2d at 986.
111. See, e.g., Branzburg, 408 U.S. at 665; Smith, 443 U.S. at 97; Nicholson, 223 Cal. Rptr. at 58.
112. See, e.g., Branzburg, 408 U.S. at 665; Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5th Cir.), modified on reh'g, 628 F.2d 932 (5th Cir. 1980), cert. denied, 450 U.S. 1041 (1981); see also Dallas Morning News Co. v. Garcia, 822 S.W.2d 675 (Tex. App.-San Antonio 1991, no writ); Channel Two Television Co. v. Dickerson, 725 S.W.2d 470, 472 (Tex. App.-Houston [1st Dist.] 1987, no writ).
113. See TEX. CIV. PRAC. & REM. CODE § 51.014(6) (Vernon 1999).
114. For an alternative solution that would bar punitive damages against media defendants for newsgathering conduct, see Note, Food (Lion) for Thought, supra note 11.
John K. Edwards is an associate in the Houston, Texas, office of Jackson Walker L.L.P. where he is a member of the Media Law Practice Group.

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