Court rulings carry dangers for journalists

Lawsuits: The Food Lion case is further proof that the First Amendment cannot always protect undercover reporting by the media.

October 31, 1999|By Lyle Denniston

WASHINGTON -- Believing that they are living up to the crusading tradition of Nellie Bly, but finding that the legal risks of doing so resemble the "Perils of Pauline," America's journalists who work undercover have come upon uncertain, even threatening, times.

Like Bly, the New York World reporter in the late 19th century who pretended to be insane so she could get the inside story about abuses in asylums, today's scandal-pursuing journalists sometimes use deception to investigate stories that otherwise could be out of their reach.

And, like the movie character Pauline, in Pathe Studios' memorable 1914 serial, who inevitably was rescued from misadventure at the very last minute, today's risk-takers in journalism regularly depend upon the Constitution's First Amendment to save them from legal woe.

The problem is that the journalists who now find themselves tied to figurative railroad tracks with a menacing lawsuit bearing down upon them cannot be so sure of rescue.

The First Amendment may arrive on the scene late, and sometimes may simply not be a savior at all. This is a fairly recent development, and it has made the news industry -- and its lawyers -- deeply fretful.

The latest to experience that peril is ABC-TV. It obtained only part of what it had hoped from the First Amendment after years of waiting to be rescued from a very expensive lawsuit filed against it by the supermarket giant Food Lion.

What happened to ABC, and is happening to journalism in general, is simple: Although the Supreme Court in 1964 gave the press a sturdy First Amendment shield against lawsuits challenging media stories, in 1991 the court created an option for lawyers to bypass the constitutional shield and sue the media.

The 1964 ruling, New York Times vs. Sullivan, for the first time laid down constitutional rules to govern libel lawsuits. In order to win such a case against a newspaper, magazine or broadcast outlet, the court said, the individual suing would have to prove the story was false, and that it was published or broadcast without caring whether it was true or false.

The case stemmed from a lawsuit against the New York Times by L.B. Sullivan, a city commissioner in Montgomery, Ala. Sullivan sued the Times for printing an advertisement placed by a group of black clergymen, criticizing local police for violence against civil rights demonstrators. Sullivan won a verdict of $500,000 but the Supreme Court unanimously overturned it.

That First Amendment shield later was applied to lawsuits against the press not involving claims of libel, such as claimed invasions of privacy or infliction of emotional harm.

But, in 1991, 27 years after the Sullivan decision, the Supreme Court split 5-4 in opening a loophole for some lawsuits against the press. If a state law applies to everyone, and does not single out the media for punishment, the First Amendment will not shield the media for breaking such a law,the court ruled in the case of Cohen vs. Cowles Media. The tough Times vs. Sullivan standard did not apply in that situation, the majority said.

That case involved a jury verdict of $200,000 against two Minnesota newspapers for violating a state law against breaking a promise in a business deal. A Minnesota political consultant sued the newspapers for violating that law by publishing his identity after reporters had promised to keep it a secret, to protect him as a source.

"Minnesota law simply requires those making promises to keep them," the court said in rejecting the newspapers' First Amendment claim.

Lawyers for individuals or companies who believe they have been harmed by undercover media operations have taken the hint from that 1991 ruling: Find some state law that the media may have violated -- trespass, for example -- and rely upon that. Because such laws apply to everyone, the media receive no First Amendment protection when it violates them.

Thus, lawsuits increasingly aim at the news-gathering technique, not at the story that resulted; the story itself is shielded by the First Amendment, and very tough standards of proof must be met to satisfy that amendment's free-press clause.

The predictable result of this new tactic: burgeoning legal troubles for the media, and especially for those journalists who use deceptive news-gathering tactics.

Undercover journalists are more likely to be targeted by lawsuits, keyed to that 1991 decision, because they risk breaking laws by using deception. Moreover, the use of deception to get stories has become more common -- considerably more so than in Nellie Bly's day.

Change in attitudes

Technology has made cameras and recording devices ever smaller, making it easier to hide those devices in a reporter's clothing or hair. Journalists' attitudes, too, have changed. The urge to use "spy cam journalism" is stronger, especially in the hotly competitive environment of the "24-hour news cycle" with cable networks acting as aggressive rivals to the more traditional broadcast outlets.

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