By Caralyn Greif and Gina Guarini

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.

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.

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NY Times vs. Sullivan
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."

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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.

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Disputed Articles/Ads
10
Hazlewood vs. Kuhlmeier (1988)

• Paper was not considered a public forum
• School officials may censor papers for an
  educational purpose

• High School principal removed information from
  paper, claiming it didnt 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

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Effects of NY Times v. Sullivan

• Actual Malice Standard inconsistent and flawed
  interpretation and application. Heavy reliance on
  the Supreme Courts 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 publics interpretation of journalism as
  sloppy.

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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?

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Other Legal Issues

• Subpoenas
• commands a person to bring certain evidence,
  usually documents or papers to court (including
  information obtained from confidential sources)

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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.

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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.

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

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• 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.

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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.

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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

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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

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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/artic
  le/2005/10/02/AR2005100201237.html
• http//www.spj.org/shieldlaw-2102.asp
• http//www.privacilla.org/government/privacyprotec
  tionact.html