News Gathering & the Law The Role of the First Amendment The text of the First Amendment, by its terms, says nothing about a right to gather news or a right to know. With the exception of criminal trials and related proceedings such as voir dire (discussed in Chap. 12), judicial creation of a First Amendment right of access to information, events and meetings is very limited to a few circumstances, some of which are described early in Chapter 9.

Journalists Gathering News Should Remember These Statements  The First Amendment does not confer “a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news.” Branzburg v. Hayes (1972)  It is well established by case law that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” Cohen v. Cowles Media (1991)

Liability for Newsgathering Methods Journalists today increasingly are being sued for how they gather news, not just for how they report news. They also may be subject to criminal liability for their newsgathering techniques. Some common legal theories (civil and/or criminal) journalists should be aware of when gathering news (in addition to the invasion of privacy theory called “Intrusion” discussed in Chapter 7) include: Trespass Fraud/Misrepresentation

Trespass Definition: An intentional, unauthorized entry onto land that is occupied or possessed by another. “There is no journalists’ privilege to trespass.” Desnick v. ABC Possible Defenses: Consent (but beware of exceeding scope of consent or obtaining consent from someone who does not have the power to consent; never rely on the notion of “implied consent”). The property, although privately owned, is generally open to the public (businesses) and journalists do not otherwise interfere with the business use.

Fraud Definition: A knowingly false statement of a material or significant fact that is communicated with the intent to induce the plaintiff to rely on that statement and that does, in fact, induce the plaintiff to reasonably rely upon it to the plaintiff’s harm or injury. Related Danger Area: Also be aware, from a criminal perspective, of fraud in the form of impersonating a government official

The Freedom of Information Act (FOIA ) Provides a statutory right of access to records possessed by federal government agencies. This right of access, however, is qualified by nine specific statutory exemptions and by recent laws, such as the Homeland Security of Act of 2002, that create specific exceptions from FOIA requirements. FOIA is used times daily to access agency records

FOIA Exemptions 1. National security matters 2. Housekeeping materials 3. Material exempted by statute 4. Trade secrets 5. Working papers & Lawyer-Client privileged documents (executive privilege) 6. Personal privacy files 7. Law enforcement records 8. Financial institution materials 9. Geological data

Homeland Security Act of 2002  Created in response to September 11, Creates a massive exception from federal FOIA laws for so-called “critical infrastructure information” that is voluntarily submitted to the Homeland Security Department by private persons and business entities. Grants companies immunity for civil and criminal liability relating to any information that they voluntarily submit.

Rejected! The Game Where Information Is Power. Creativity pays double!  Jonny Jingles is a paid FBI informant. He is arrested for fraud. You want his FBI records for an investigative report to see if the FBI is involved.  President Bush ver 2.0 is accused of playing Texas Hold’em in the White House for cash. You want the surveillance video from the oval office that shows him calling Rumsfeld’s bluff.  You are doing a report on the Supreme Court. You notice that one justice looks very ‘blotchy’. You want to see his military medical records, from 1977 to see if he contracted anything while serving overseas.