JOURNALISTIC PRACTICES, TORT LIABILITY, AND THE FREEDOM OF THE PRESS

Two seemingly clear precepts come into sharp conflict when journalists are charged with wrongful acts in gathering news. On one hand, the media have never been held to be immune from the general civil and criminal laws that govern the rest of society. Thus, if a reporter pursuing a lead commits an assault or a trespass, or destroys the property of another, the special nature of his or her mission creates no shield from general liability. When journalists sought to withhold from a grand jury the identity of a confidential source, the Supreme Court rejected such requests for immunity; reporters, said the Court, must testify like other citizens, even though such a duty may inhibit or deter certain forms of newsgathering.

On the other hand, the first amendment clearly confers on the press a special status, notably when it comes to printing or broadcasting the truth. Time and again the Court has barred civil and criminal sanctions against the media for publishing sensitive and confidential information like the name of a rape victim or of a juvenile offender. So long as the material was lawfully obtained, is accurate, and of public interest, whatever interest government may claim in enforcing secrecy must yield to the freedom of the press. Indeed, even where the material was obtained unlawfully—as with the Pentagon Papers—the First Amendment bars government from imposing a prior restraint in the interest of national security.

The difficult cases arise between these relatively clear extremes. There the guiding principles become confused and contentious. When a tobacco company threatened in 1995 to sue CBS if the television network broadcast an interview with a former employee of the company, seasoned First Amendment lawyers were sharply at odds over the validity of such a suit.

The underlying tort claim—inducing a breach of contract—was a novel one that had never been tested against the media. Some experts argued that freedom of the press would bar such a damage claim, because a large award could severely inhibit expressive activity and freedom of communication. Other equally respected experts insisted that such a claim would be seen by the courts as part of the "generally applicable law" by which the media have always been held accountable. Because the particular case was settled, we still do not know how a court would have ruled on this novel issue.

The relatively few such cases that have been decided leave many uncertainties. On one hand, when a newspaper reporter promised confidentiality to a source, but her editors insisted on revealing that source in the resulting story, the source successfully sued the publisher for breach of promise in cohen v. cowles media co. (1991). When a television network obtained damaging footage from a supermarket by posing two reporters as legitimate employees, the store owner recovered damages for the workers' alleged breach of a duty of loyalty and for the network's "unfair and deceptive trade practices" in food lion, inc. v. american broadcasting co. (abc) (1997).

On the other hand, a meat packer was unsuccessful in seeking to bar the broadcast of potentially damaging footage another network had obtained by getting a packing employee to carry a concealed camera into the freezer. In such cases, direct liability for causing tangible harm seems never to be in doubt. Of course the network must pay if the camera crew physically damages the freezer controls, or causes the contents to spoil while being filmed, or coerces or violates the privacy of a regular employee.

What remains uncertain and contentious is the degree to which collateral or indirect liability may also be imposed—for the intangible effects on consumer confidence of material obtained by trespass, for example, rather than for tangible harm inflicted by the trespasser's feet or hands.

Several possibly helpful principles emerge from these cases. For one, no matter how reprehensible the journalist's conduct may have been, it seems never likely to justify imposing a prior restraint against publication. That was the teaching of the Pentagon Papers case, new york times co. v. united states (1971), where the fact that the materials had been taken in violation of trust seemed of virtually no importance to the Supreme Court.

Moreover, information that is both truthful and of public interest is likely to fare better when it comes to liability of any sort. The relative strength of the opposing interests—those of the media on one hand, and of the victim of wrongful media conduct on the other—are likely to help resolve otherwise close cases. On one side, favoring the media, there is the powerful interest of readers, listeners, and viewers in maximizing the flow of information. On the other side, there may be the interests of persons who are actual or potential victims of wrongful newsgathering practices. Both sets of interests may be considered and weighed in the process of striking a balance in cases that are inescapably close and difficult.

Finally, courts are likely to take into account the availability of less drastic alternative forms of regulation. Most clearly, if a victim of wrongful newsgathering could seek damages after publication, the always tenuous case against publication would be even weaker. Among various forms of postpublication relief, courts are likely to choose the one that least-severely affects or impairs the freedom of the press.

Robert M. O'N eil
(2000)