Frequently Asked Questions – Press

Who is ‘the press’?

Courts have long struggled with this seemingly easy question. While no doubt exists that “mainstream” media, such as broadcast stations, newspapers and magazines, enjoy the freedom of “the press,” the line gets blurrier in cases involving underground newspapers, free-lance writers and pamphleteers. In general, however, courts have defined “the press” so as to include all publishers. The 2nd U.S. Circuit Court of Appeals, for example, has said that First Amendment protections extend to “‘every sort of publication which affords a vehicle of information and opinion.’” von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir.) (quoting Lovell v. Griffin, 303 U.S. 444, 452 (1938)), cert. denied, 481 U.S. 1015 (1987).

Does ‘freedom of the press’ mean the news media can say or write anything they want?

Unless restricted by a valid prior restraint (which is rare), the news media are free to publish any information or opinion they desire. This freedom, however, does not immunize them from liability for what they publish. A newspaper that publishes false information about a person, for example, can be sued for libel. A television station similarly can be sued if it broadcasts a story that unlawfully invades a person’s privacy. Because such liability can be staggering, most journalists strive to exercise their freedom to publish in a responsible and ethical manner.

If a newsgatherer is jailed for refusing to turn over subpoenaed information, how and when is he or she released?

A jailed newsgatherer can be released for many reasons. Occasionally, the newsgatherer will “purge” the contempt by turning over the subpoenaed information. In other instances, an appellate court will uphold the privilege and overturn the contempt order. If the newsgatherer demonstrates enough resolve to convince the judge that the information never will be provided and that further jail time is futile, some judges will release the newsgatherer. Newsgatherers also often are released when the proceeding in which they were subpoenaed (the trial or grand jury session) ends or when the information for which they were subpoenaed is obtained from another source.

The reporters and editors at my local newspaper are highly biased. Is there a federal regulator who should know about this?

No. Under the First Amendment, newspapers and magazines can publish information as they see fit, biased or not. If published information is libelous, the publication can be sued by the person claiming to be libeled. But the federal government does not and cannot regulate newspaper content.

Why is the status of a plaintiff so important in defamation law?

The status of the plaintiff (person bringing a lawsuit) in defamation law is important because there are different legal standards for different types of plaintiffs. The legal standard changes depending upon whether the defamation plaintiff is a private or public figure. Private figures must show that a defendant was negligent, or at fault, in order to prevail. But, so-called public figures or public officials who sue for defamation must meet a higher legal standard. They must show that a defendant acted with actual malice by clear and convincing evidence in order to recover. The courts have defined actual malice as knowing that a statement was false or acting in reckless disregard as to whether a statement was true or false.

This difference in legal standards shows why a significant amount of defamation litigation focuses on whether the plaintiff is a private or public figure. Defamation defendants will often argue that plaintiffs are public figures, while plaintiffs will often contend that they are private figures.

What is a retraction statute?

A retraction statute is a law that allows a defamation plaintiff to retract, or take back, a defamatory statement. Retraction statutes vary considerably from state to state in terms of their coverage and net effect. Under many statutes, a plaintiff has to request a retraction within a certain time frame. Then, the defendant must comply in a certain time frame. In many states, if a defendant issues a proper retraction, the defendant can reduce (but not eliminate) the damages they will have to pay. For example, in Tennessee, if a defendant issues a proper retraction, the defendant cannot be held liable for punitive damages. (Punitive damages are damages designed to punish the wrongdoer; they are controversial in some circles because they go beyond compensatory damages, which are damages designed to compensate the plaintiff for wrongdoing.)

Is truth a defense in libel lawsuits?

Truth is an absolute defense to libel claims because one of the elements that must be proven in a defamation suit is falsity of the statement. If a statement is true, it cannot be false, and therefore there is no prima facie case of defamation. There are numerous jurisdictions (including Florida) that have adopted the substantial-truth doctrine, which offers protection to a defendant of a defamation claim as long as the “gist” of the story is true.

In the 1964 ruling New York Times v. Sullivan, the U.S. Supreme Court held that the First Amendment protects the publication of all statements regarding public officials unless the statement was made with actual malice — “with knowledge of its falsity or with reckless disregard of whether it was true or false.” The Court set a new standard by requiring that a public-official defamation plaintiff show evidence of actual malice by clear and convincing evidence. If the plaintiff is a private person, then only negligence needs to be proven, assuming the defamatory statement was false. However, if the private person wants to recover punitive damages, she must show that actual malice existed, as well.

When can an individual sue for public disclosure of private facts?

Generally, the material published must be private information that “is not of legitimate concern to the public.” Its disclosure must also be “highly offensive to a reasonable person.” Material private enough to trigger this tort claim could include disclosure of sexual orientation, medical history, or other personal, private facets of a person’s life. The pressing question in public disclosure of private-facts cases is whether the information is newsworthy or of legitimate concern to the public. Newsworthiness is evaluated by an examination of several factors, including the social value of the disclosed material, the depth of intrusion into personal life, and the extent to which the person is already in public view. Even Louis Brandeis and Samuel Warren, authors of a famous 1890 law review article, “The Right To Privacy,” wrote: “The right to privacy does not prohibit any publication of matter which is of public or general interest.”

What types of conduct by the news media can lead to intrusion claims?

Many different types of conduct can cause someone to file an intrusion/invasion-of- privacy lawsuit. Common examples include trespassing on private property without the owner’s consent, installing hidden cameras or other secret surveillance equipment to monitor someone’s behavior, and harassing a person by continually following him.

An example of conduct that was held to be intrusive enough to warrant judicial relief was the case of paparazzi photographer Ron Galella. Galella was relentless in his pursuit of photographs of Jackie Onassis and her children. After a court injunction and appeal, Galella was prohibited from approaching within 25 feet of Jackie O., blocking her movement in any public place and engaging in “any conduct which would reasonably be foreseen to harass, alarm or frighten the defendant.”

What is prior restraint?

A prior restraint is a legal restraint on material before publication. It’s an order that prevents publication.

Does the protection against prior restraint protect only the news media?

In theory, the protection against prior restraint applies to all speakers. Practically, however, fewer circumstances exist in which individuals can assert this protection. Moreover, in light of the balancing test suggested in Landmark Communications, a court might be more likely to find that the government’s interest in preventing harmful speech outweighs an individual’s interest in disseminating sensitive information.

What types of restraints on speech do individuals face?

As most famously described by Justice Oliver Wendell Holmes in Schenck v. United States, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Other types of speech by individuals also fall outside the protection against prior restraint, including fighting words and obscenity.

“There are two ways in which the government may attempt to restrain speech,” wrote scholar Henry Cohen in “Freedom of Speech and Press: Exceptions to the First Amendment” (Congressional Research Service, 2001). “The more common is to make a particular category of speech, such as obscenity or defamation, subject to criminal prosecution or civil suit, and then, if someone engages in the proscribed category of speech, to hold a trial and impose sanctions if appropriate. The second way is by prior restraint; i.e., to issue a court injunction against engaging in particular speech ” publishing the Pentagon Papers, for example.”

If my employer tells me I can’t say certain things or discuss certain matters, isn’t that prior restraint?

Not from a First Amendment standpoint. The First Amendment limits what government in its various forms can do to restrict speech. Many individuals are subject to employment or other contracts that limit their right to speak freely. That’s a private matter.

How does the FCC define ‘indecent’ speech?

Under FCC rules, broadcast indecency is “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” By “contemporary community standards,” the FCC means the standard “of an average broadcast viewer or listener and not the sensibilities of any individual complainant.”

Have there been attempts to apply ‘equal time’ rules to newspapers?

Some states passed “right of reply” statutes to require newspapers that criticized candidates to give those candidates space to respond. In Miami Herald Publishing Co. v. Tornillo (1974), the U.S. Supreme Court said such statutes violated the First Amendment because the government cannot compel a newspaper to publish information. “A responsible press is an undoubtedly desirable goal,” the Court said, “but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.”

Do television networks have access to courtroom trials?

Television coverage is not allowed in federal courts. The state courts have been more receptive to allowing television coverage of trials, but none has recognized a right to broadcast a trial. The courts most receptive to cameras in the courtroom allow judges broad discretion in deciding whether to permit televised coverage.

The Radio-Television News Directors Association and its foundation closely monitor the federal and state rules governing cameras in the courtroom. The foundation posts a state-by-state guide of current law regarding cameras and microphones in courtrooms on its Web site.

What campaign-finance rules apply to broadcasters?

The rules that apply to broadcasters are mainly bookkeeping rules. Broadcasters are required to keep publicly available records of politically related broadcasting requests.

So, as stated in the 2003 Supreme Court decision McConnell v. Federal Election Commission, any request to purchase air time “made by or on behalf of” any “legally qualified candidate for public office” that refers to a “legally qualified candidate” or “any election to Federal office” or a “national legislative issue of public importance” has to be recorded and made available to the public.

How can I find out if my state has a shield law or recognizes a newsgatherer’s privilege?

The Reporters Committee for Freedom of the Press publishes “The Reporter’s Privilege Compendium,” a state-by-state guide to the privilege. This updated guide is available online.

You can also obtain current information by researching state law in law libraries or through a number of online databases, including www.findlaw.com.

How have the circuit courts viewed the question of reporters’ privilege?

See this compilation, Branzburg v. Hayes, reporters’ privilege & circuit courts.

How common are gag orders?

Gag orders are increasingly common. A survey conducted by the Reporters Committee for Freedom of the Press tracked 43 gag orders in 26 states and the District of Columbia between Feb. 1 and April 20, 2000. Among the Reporters Committee’s findings were:

  • Most of the orders were imposed even though the trial judge did not conduct hearing to determine whether there were less-drastic means to ensure a fair trial.
  • 18 of the 43 orders were imposed in civil rather than criminal cases, including some in cases in which governmental entities were parties.
  • A federal judge in Lubbock, Texas, entered gag orders in nearly all of his cases — a total of 219 cases in two years.

How can I find out the extent to which my state allows cameras in the courtroom?

The Radio-Television News Directors Association closely monitors the federal and state rules governing cameras in the courtroom. The foundation posts a state-by-state guide of current law regarding cameras and microphones in courtrooms on its Web site.

Don’t courts unfairly discriminate against television stations when they allow print reporters to use the tools of their trade but deny television reporters that same right?

Broadcasters long have maintained that the tools of their trade — cameras and microphones — can be used to cover trials with no more disruption than the pens, notebooks, tape recorders and other materials used by print reporters and sketch artists. Most courts, however, have not been persuaded by this argument. In addition, most courts have taken the view that, as long as television reporters are allowed into the courtroom, they have the same access as print reporters.

Given that trials are presumed to be open, does the public have a First Amendment right to hear the discussions among the judge, the lawyers and the parties in sidebar conferences or in the judge’s chambers?

Assuming that sidebar conferences and meetings in chambers are not being used to circumvent hearings that should be held in open court, the right of access does not extend to such discussions. Courts that have considered this issue have denied access on the grounds that there is no historical tradition of access to these portions of a trial. These discussions, however, almost always are recorded by the court reporter, and many courts, if asked, will release transcripts of the discussions after the trial.

Are there dangers in using anonymous juries?

Anonymous juries were first used in the late 1970s and the early 1980s in trials of drug kingpins and other defendants who posed a special danger to jurors. In those cases and in cases in which there is a high risk of jury tampering, anonymous juries are necessary to protect both jurors and the integrity of the judicial system. Since the mid-1990s, however, judges often have empaneled anonymous juries in cases, including civil cases, in which the only “risk” to jurors is the possibility of being approached for press interviews after the case. Anonymous juries should not be used so lightly, however, particularly because being anonymous almost always suggests to jurors that the defendant is dangerous. An anonymous jury is also often beyond scrutiny, even by the parties in the case. One of the jurors in the anonymous jury seated to hear one of mobster John Gotti’s trials, for example, was a man with ties to organized crime. Many believe this juror contacted Gotti’s attorneys, arranged for a bribe and ensured Gotti’s acquittal. Because of the jurors’ anonymity, neither the prosecutors nor the news media were aware of this juror’s background until after the trial.

Why would any state want to include protections for press freedom in its constitution? Doesn’t the First Amendment to the U.S. Constitution cover that?

The First Amendment provides only the minimum level of constitutional protection. The states are free to provide additional protection under their own state laws, including their state constitutions. This notion of “dual federalism,” envisioned by the Framers, thus provides citizens and others with two important levels of legal protection by which to safeguard our rights.

How does criminal libel differ from civil libel?

In criminal libel, the theory is that the damage is to the public rather than to a private individual. Therefore, the state becomes the prosecuting entity against an individual speaker. Presumably, the individual’s libelous statement would have to be deemed serious enough to warrant removing the case from the civil realm. The defamation involved in criminal libel could be of another individual, a public official, a government entity, a group, or even a deceased person.

Didn’t New York Times Co. v. Sullivan eliminate the basis for criminal-libel suits?

No. In Sullivan (1964), as well as in Garrison v. Louisiana the same year, the Supreme Court extended some First Amendment protection to some false statements of fact leveled against public officials and public figures. But it did not find criminal libel unconstitutional.

When are media ‘ride-alongs’ with police allowed?

Media “ride-alongs” are allowed up to the point that law enforcement personnel enter a private residence. In Wilson v. Layne, the U.S. Supreme Court in 1999 held that police officers executing an arrest warrant violated the Fourth Amendment when they, without the homeowners’ consent, invited a reporter and photographer inside a home to witness the search for a fugitive. While the Court recognized that the inclusion of media representatives in such cases might serve general law enforcement aims, it held that such goals were insufficient to overcome the privacy protections fundamental to the Fourth Amendment.

What rights do journalists have at accident or disaster scenes?

The courts haven’t recognized that the news media have any constitutional guarantee of access to any particular scene. However, there are statutory rights in a few states and case law in others that protect press access from unreasonable restriction.

The courts have generally stood behind journalists who act reasonably in trying to get information — but courts have not protected those who blatantly disregard police orders. Courts have recognized under the First Amendment a press privilege to be left alone by the police, so long as the media do not unreasonably interfere with or obstruct police activity or risk their own personal safety. In Connell v. Town of Hudson, for example, a 1990 case in New Hampshire, a federal judge found that a news photographer had a First Amendment right to be at a car-accident scene.

What is HIPAA?

It’s the Health Information Portability and Accountability Act, a federal health-privacy law that went into effect in 2003.

Does HIPAA mean journalists can’t report on individuals’ medical conditions?

No. HIPAA does not regulate what the press can report. But it does limit the kinds of information that hospitals and various government agencies can disclose.

What if a reporter learns health-related information from a source not associated with an agency?

Health-care information the news media obtains independently is not subject to HIPAA. It may be published or broadcast freely, subject to any newsroom policies limiting the publication of information about minors or the deceased.

If a crime or emergency occurs on the grounds of a medical facility, does HIPAA trump the news media’s right to access the location while emergency responders are in charge of the scene?

There does not appear to be a case where HIPAA has been used to bar a journalist’s access to a crime or emergency scene. The issue of trespass would be the bigger issue if the incident occurred on private property. (See the FAQ “What rights do journalists have at accident or disaster scenes?”) Having said that, there have been cases of misinterpretation of HIPAA, and there have been instances of law enforcement and fire department personnel saying they can no longer release information once commonly disclosed. This may extend to denying access to a crime or emergency scene.

Do court transcripts fall under FOI? Can they be withheld from litigants?

The Freedom of Information Act applies only to federal government agencies. Although all states have created their own FOI acts, these acts do not apply to the court systems. However, courts have tended to allow a right of access to court files and documents, including court transcripts. The problem that the courts have constantly faced is determining just how far the right of access reaches.

The general rule is that if the public has access to a legal proceeding, then it has the right to access to the records of a proceeding, which include court transcripts.

Many states’ Web sites have instructions for ordering court transcripts. For example, see Connecticut’s Judicial Branch site or Kansas’s Judicial Branch.

Litigants in a trial have the right of access to obtain court transcripts of the trial if the public also has access. However, judges do have the authority to withhold court transcripts from the public and litigants.

An Ohio Supreme Court decision held that the cost of obtaining a court transcript depends on who is making the request. In State ex. rel. Slagle v. Rogers, the state court held that parties to a court proceeding must pay the court reporter $2.50 per page for a transcript. Anyone who subsequently requests a court transcript must pay only 10 cents per page — the standard rate in Ohio for any public record.

Are states making court records available electronically for the public?

Many states have implemented procedures to allow for electronic access to court records. Most have come to the conclusion, through committee studies, that the public should be able to access court records regardless of the medium in which they are stored.

However, states have realized that there are additional privacy concerns when dealing with electronic access to court records. Many states respond to this issue by allowing electronic access only to non-confidential court records, as long as certain types of sensitive, personal information are removed from the records. This would include Social Security, credit card and financial account numbers, etc.

Most states have reached the conclusion that electronic access to court records should be provided in a way that is consistent with the fundamental right of public access to court records. States have further concluded that narrowly tailored exceptions to public access are acceptable as long as states do not make broad categorical limitations as to what the public can request. Almost all states will deny the public’s access to electronic records if the state has an interest in secrecy that outweighs the public’s right of access to a particular document.

Some state courts have also made digital audio recordings of courtroom proceedings publicly available online. The U.S. District Court in Nebraska and the U.S. Bankruptcy Court for the Eastern District of North Carolina were the first to make such recordings available, and several other courts have joined that movement.

In 2007, the Reporter’s Committee for Freedom of the Press conducted a state-by-state analysis of online access to court records.

What is a blog?

A blog, or Web log, is generally described as an online journal or diary where individuals can post their thoughts on a subject for the world to see and read. Many, however, disagree over the definition of a blog. Robert Cox, president of the Media Bloggers Association, stated in an interview with the First Amendment Center Online that there is no clear definition of “blogging”: “[The term] is worse than useless because it is an empty vessel into which people can — and do — pour whatever meaning suits them at the time. … Blogging is writing.”

Does blogging raise First Amendment issues?

Just as with any medium of communication, blogging can implicate a variety of First Amendment interests. Some bloggers write material that others may claim is defamatory. There is also a debate as to whether bloggers qualify as journalists or reporters for purposes of reporter-shield legislation. Additionally, a looming question concerns the extent of free-speech protection held by public employees who post blogs on their free time. There is also a debate as to whether bloggers should be subject to campaign-disclosure legislation.

Can public employees be disciplined for the content of their blogs?

That is a difficult question. Certainly, public employers have authority to prohibit employees from writing their blogs on employer time. The trickier question is whether a public employee can be disciplined for expression created on his or her own time. One theory is that since the expression was created off-duty, then the employer has no control over such content. A key factor could be whether the expression causes a disruption at the workplace. A few courts, for instance, have disciplined employees for racist comments they have made off-duty. This is a developing area of the law that merits close attention.

Can a newspaper refuse to run a letter or advertisement?

Yes, newspapers do have a First Amendment right to refuse letters to the editor and ads. Since they are privately owned entities whose editors have editorial control, they are free to promote whatever political, social or economic view they wish.

The U.S. Supreme Court addressed the issue of editorial control and freedom of the press in 1974 in the case Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241. This case concerned a Florida political candidate who brought suit against The Miami Herald pursuant to the state’s “right-to-reply” statute after the paper refused to print the candidate’s reply to editorials critical of him. The statute in question required a newspaper to provide equal space to a political candidate to reply to any criticism of the candidates’ personal character or official record printed by the newspaper. The Supreme Court found the statute to be unconstitutional in that it violated the First Amendment right to a free press.

The Court wrote:

“A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”