Fall 2001 Human Rights Magazine

By Terry Francke

The legal rights of the press to pursue journalism may be viewed as falling into two categories: those asserted under the First Amendment and won, clarified, or limited as a result of litigation, and those exemptions from general policy granted by legislators or regulators as a result of explicit news media lobbying. Compared with the former, the latter are a handful of practical embellishments, chiefly accommodating reporters' or photographers' entrée to places, persons, or documents from which the general public, for reasons of safety, security, or privacy, has been excluded. For example, journalists allowed close approaches to the president or other dignitaries, or to pass beyond police cordons at disaster scenes, or to check details of voter registration records, benefit from these statutory exemptions.

This article deals with the far more fundamental freedoms asserted under the First Amendment and defined in case law, and tends toward three conclusions. First, the central liberties of the press are essentially those of speech writ large; they happened to be litigated by the press or concerning its activities, but in principle the rights are those enjoyed by any group or individual. Second, not only has every "press" rights victory been a step forward for the fundamental human right of free expression, almost every case limiting asserted press rights has been grounded in concern for some other interest likewise considered a fundamental human right, at least in the United States, especially those of fair trial and personal privacy. Third, the exceptional instance where a limitation of press rights does not directly advance human or civil rights is most troubling because it serves governmental interests in enforcing cryptocracy-rule by secrecy-as exemplified in the proposed "Official Secrets Act" recently revived in Congress.

Most of the important press struggles to preserve its freedom can be seen as resistance to governmental interference with or punishment of journalistic acts of discovery, disclosure, or discussion. Those struggles are often inseparable from tensions between governmental authority and human or civil rights. The clearest index of which freedoms the press has fought for most keenly, and how those claims have influenced the law, is of course the jurisprudence of the Supreme Court, often but not always ruling on the First Amendment, and often but not always on the press clause specifically.

Discovery

Almost all the signal cases defining the right of the press to discover information controlled by the government involve journalistic attention to the criminal justice system. Within this zone, almost all the cases have dealt with the perceived impact of press attention on the rights of individuals caught up in a law enforcement investigation or a prosecution. In other words, official control over information the press wants to discover is typically asserted on behalf of what might be called a human or civil right.

The most historically resonant case in this category does not involve the First Amendment directly. Rather, it deals with what a court must do to see that participants in a criminal prosecution, and government agents in particular, do not exploit press attention to the detriment of the defendant's right to a fair trial. In Sheppard v. Maxwell, 384 U.S. 333 (1966), the Court freed a convicted murderer on a writ of habeas corpus because it concluded his Sixth Amendment rights had been fatally undermined by prejudicial publicity permeating the community. The Court held that the trial judge could and should have taken steps to minimize the prejudice by continuance, change of venue, sequestration, orders against out-of-courtroom comments by trial participants, or even ordering a new trial. The Court had only a year earlier determined in Estes v. Texas, 381 U.S. 532 (1965), that televising portions of a criminal trial over objections of the defendant had, under the already press-inflamed circumstances, fatally denied his due process rights and compelled reversal of his conviction. Soon Sheppard's affirmative prescriptions for fair trial protection became routine elements of any trial to which the press attended with special concentration, particularly sensational murder cases. It took a decade for the court to revisit the problem, but in Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), the Court explicitly applied the First Amendment and held that these approaches to controlling trial arrangements must be exhausted or shown unworkable before prior restraint-ordering the press not to publish lawfully acquired trial-related information-can be considered as a response to intense and pervasive prejudicial pretrial publicity. Moreover, prior restraint must be shown to be not only necessary but also sufficient to prevent prejudice of potential jurors. Since the erection of Nebraska Press's high barriers, "gag orders" directed to the press have been very few and almost never upheld. Those directed to trial participants, however, have become fairly predictable in cases with intense press coverage, and have not often been successfully challenged.

In Nebraska Press the Court added to its Sheppard list of protective measures one more alternative to be exhausted, namely closure of pretrial court proceedings or records-as a means of keeping the press from discovering prejudicial information. But in a relatively rapid series of cases in the early 1980s the Court once more looked to the First Amendment as a limit on closure. It first held that in order to keep the criminal justice system observable as a minimal concession to effective criticism of its processes, there is a constitutional presumption that criminal proceedings are public, and that, for example, a criminal trial may be completely closed to spectators only in the direst extremes of necessity. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980). Two years later the Court addressed the closure of only a portion of a criminal trial: the testimony of a minor sexual assault victim. It held that even such partial exclusions of the public could not be accomplished by unconditional statutory mandate; all testimony must be presumed public unless it is shown, case-by-case, that the result would frustrate candid and effective testimony and that alternative solutions are unavailing. Globe Newspaper v. Superior Court, 457 U.S. 596 (1982). The Court within a few years rounded out the main contours of the presumed access doctrine, extending it to the voir dire phase of the trial in Press-Enterprise v. Superior Court, 464 U.S. 501 (1984), and the preliminary hearing used as an alternative to grand jury indictment to determine sufficient cause for trial in Press-Enterprise v. Superior Court, 478 U.S. 1 (1986). Press-Enterprise II established that closure of any significant phase of a criminal court proceeding requires identification of an "overriding interest" such as a fair trial, concerning which there is a "substantial probability" of serious injury that cannot be avoided by alternatives such as those mentioned in Sheppard and Nebraska Press. If these elements are satisfied and articulated in reviewable findings, some closure may be permitted, but must be kept to a minimum or "narrowly tailored" to ensure maximum exposure to the public otherwise.

Justice John Paul Stevens, concurring in Richmond Newspapers, called it "a watershed case" in being the first instance in which the First Amendment had been recognized as legal leverage for access to official information (as opposed to disclosing or discussing it). He pointedly referred to a pair of earlier decisions concerning journalists' physical access to prisons or jails to interview inmates or inspect conditions, Saxbe v. Washington Post, 417 U.S. 843 (1974) and Houchins v. KQED, 438 U.S. 1 (1978), holding that so long as the press was accorded no less access than the general public and alternative means of conversing with inmates were kept open, its freedom had not been abridged with any constitutional import by restrictions on physical visits. In perhaps the most frequently cited statement of this principle, Chief Justice Warren Burger had concluded in Houchins: "Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control." That pronouncement, apart from the court access doctrine (which, perhaps, implicitly distinguishes the judicial branch from "the government"), is the standard position with respect to press discovery efforts impinging on officially controlled persons, places, and information to this day.

More recently the Court has clarified press discovery rights in two other situations-not First Amendment cases but for practical purposes, equally consequential. In Department of Justice v. The Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), the Court held that the Freedom of Information Act (FOIA) did not require the FBI to disclose summary criminal history or "rap sheet" information on Charles Medico, whose family's company was alleged to have ties with organized crime. The Court concluded that FOIA was not intended by Congress to facilitate inquiry into governmentally compiled data on private individuals (however much that data might derive from public records such as police and court files). In a controversial gloss on legislative intent, which has since posed an obstacle to journalistic and other research about all sorts of individuals, Justice Stevens spoke for a unanimous Court in concluding: "There is, unquestionably, some public interest in providing interested citizens with answers to their questions about Medico. But that interest falls outside the ambit of the public interest that the FOIA was enacted to serve." That core interest, said Stevens, was "to ensure that the government's activities be opened to the sharp eye of public scrutiny, not that information about private citizens that happens to be in the warehouse of the government be so disclosed." It is precisely to mine government and court files as a repository of information of public significance, of course, that the press has always used public information laws like FOIA, irrespective of whether the focus was on the backgrounds of persons made noteworthy by government attention or on "government activities" per se. The Court's distinction may after all be less than meaningful in application, since understanding what the government is doing may often require knowing whom its action is about, against, or for.

Another common press discovery practice that impinges on private rights while permitting scrutiny of government activities is the "ride-along," in which journalists accompany police on raids or in executing searches of private property. That practice, at least with respect to searches, has been sharply curtailed by the Court's decision in Wilson v. Layne, 526 U.S. 603 (1999), holding that the presence of journalists in a private home during execution of a search warrant, without consent of the residents, violates their Fourth Amendment rights as an unreasonable search, in that it "was not in aid of the warrant's execution." The fact that reporters or photographers on the premises may aid in keeping sometimes controversial government activity "open to the sharp eye of public scrutiny," and thereby act as a deterrent to official excesses, said Chief Justice William Rehnquist for the Court, "fall(s) short of justifying the presence of media inside a home."

To summarize, the rights of the press to discover information are, as a matter of constitutional law, no greater than those of the undifferentiated public. Press and public have the presumptive right to observe criminal proceedings, but not:

• to gain information from interviews with persons subject to a valid "gag" or protective order from the court; or

• to visit prisons, jails, or inmates if the institution can show a valid penological objective for imposing the restriction; or

• to obtain personal information (particularly of the stigmatizing variety) compiled by the government about individuals; or
• to accompany law enforcement officers on searches of private premises subject to the Fourth Amendment.

The result is that those few laws according journalists some degree of access to persons, places, or records not generally available to the public are the result of specific exemptions created by federal agency policy or state law, at the behest of the press. It is notable that with the exception of the inmate access cases, the underlying interests invoked to limit press discovery are related to human or civil rights: to a fair trial under the Sixth Amendment and to personal privacy under the Fourth Amendment and FOIA.

Disclosure

Assuming that the information the press chooses to disclose is accurate and has been lawfully obtained, there are far fewer constitutionally permissible barriers than in the discovery phase. The Supreme Court has steadfastly refused categorically to close the door on prior restraint or subsequent civil or criminal liability in all situations. But in actuality it has incrementally ruled against prevention or punishment. Already noted is Nebraska Press Association v. Stuart, making it extremely difficult for a court to gag the press from disclosing what it has lawfully learned about a criminal proceeding, even in the interests of a fair trial. The same result was reached in Oklahoma Publishing Co. v. District Court, 430 U.S. 308 (1977), involving a pretrial order forbidding publication of the name or photograph of an eleven-year-old boy charged with murder in a juvenile court proceeding.

Apart from coverage of the justice system, the most signal antidisclosure case is New York Times Co. v. U.S., 403 U.S. 713 (1971), in which the Court declined to approve the government's petition for an injunction against publication by the New York Times and the Washington Post of the Pentagon Papers, on the grounds that the government had not demonstrated irreparable injury to the national interest. The Court viewed it as presumed rebuttably that a publication ban would be constitutionally intolerable, and concluded the presumption had simply not been rebutted. But if the Court did not close all doors against prior restraint on national security grounds, it fairly slammed the one the government had sought to open, emphatically rejecting its contention that "[t]he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief."

The other significant cases on press disclosure fall in two categories: those implicating privacy or confidentiality concerns, and those in which the government seeks to force rather than restrain disclosure. In Cox Broadcasting v. Cohn, 420 U.S. 469 (1975), the Court ruled that the press could not be held liable in tort for disclosing the name of a rape victim that it had discovered in open court records. The availability of such information in the public record, which is after all provided by government policy, must serve as a bright-line harbor for general dissemination, the Court concluded, lest the press be timid or confused in deciding which information about court or other proceedings was safe to report. In Landmark Communications v. Virginia, 435 U.S. 829 (1978) and Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), the Court went beyond this open-files principle to rule, respectively, that a state may not punish the publication of accurate information about closed and confidential disciplinary proceedings against a judge, nor the publication of the name of a fourteen-year-old held in the shooting of another minor. In neither case was there evidence of press wrongdoing in acquiring the information, and that point was cited as relevant. In Florida Star v. B.J.F, 491 U.S. 524 (1989), the Court again concluded that publication of the name of a rape victim, obtained lawfully due to a law enforcement agency's failure to delete the name from a published crime report, could not be punished or made the basis of tort liability, absent a law "narrowly tailored to a state interest of the highest order." The Florida confidentiality statute, prohibiting publication, failed that test for several reasons, including its constitutionally suspect imposition of liability only on "instrumentalities of mass communication," leaving nonmedia dissemination unpoliced. The most recent chapter in the sequence is this year's decision in Bartnicki v. Vopper, 532 U.S. 514 (2001), in which the Court, once again on First Amendment grounds, held that the press cannot be punished or sued for violation of laws prohibiting disclosure of the contents of a cell phone conversation, where:

• the journalists did not intercept the messages or solicit their interception;
• the conversation was between parties to a public controversy (teachers' union officials discussing a bargaining impasse with a school board); and
• the statements arguably implied a threat of union violence.

Justice Breyer made it clear in his pivotal concurring opinion that the decision was highly fact-specific and not to be read as carte blanche for publishing all lawfully acquired fruits of unlawful interceptions on some general assertion of public interest. (See the article on p. 17 of this issue for a full discussion of Bartnicki and related cases.)

A final disclosure conflict category is represented by Branzburg v. Hayes, 408 U.S. 665 (1972) and Zurcher v. Stanford Daily, 436 U.S. 547 (1978). In these cases the court held that the First Amendment does not constitute a "shield law" privilege, respectively, excusing journalists from disclosing to a grand jury information gained as a percipient witness to a crime, or immunizing news organizations from otherwise properly warranted searches by law enforcement agencies. The standard position taken by the press in such circumstances is that the prospect of having to yield either confidential sources or unpublished material to law enforcement investigations will make it more difficult to obtain the confidence of sources wishing to be anonymous. Yielding to official demands for unpublished film in particular may lead gangs or mobs to view the press camera as an extension of police surveillance and make photojournalism needlessly dangerous. Branzburg and Zurcher have led to a very large body of shield law statutes, official policies, constitutional amendments, and interpretive decisions in various jurisdictions, with distinctions drawn depending on which federal circuit or state court is involved, whether the action is criminal or civil, whether the matter involves a subpoena or a discovery process, and just who, after all, is claiming the privilege or immunity. At this writing, for example, Vanessa Leggett, a writer jailed in Texas since mid-July, is being punished for contempt for refusing to share with the FBI her interview notes compiled over several years in preparation for a book about a murder. The Fifth Circuit concluded, in an unpublished decision, that even if Leggett qualified as a "journalist" for purposes of the qualified First Amendment protections recognized by most courts in many situations since and despite Branzburg, journalists are still not viewed as immune from grand jury subpoenas.

To summarize, lower court cases on prior restraint of, or subsequent liability for, accurate disclosure of officially confidential but lawfully obtained facts are relatively sparse, given the fairly robust presumption of constitutional protection maintained by the Supreme Court. By contrast, the Court's refusal in Branzburg to find a First Amendment shield against government-compelled disclosure (so long as due process is employed and the disclosures are not sought as part of a pattern of oppression) has left it to lower federal and state courts and legislatures, to craft sometimes limited, sometimes absolute protection for journalists who seek to protect vulnerable sources or the integrity of the editorial decision-making process. The effect is that to the extent that human or civil rights interests (privacy in particular) are sought to be protected by the government, its burden is to make its records and proceedings correspondingly confidential and diligently controlled as such, rather than to order the press not to publish facts it has lawfully obtained despite such access restrictions, or to punish (or allow others to punish) the press for such disclosure. On the other hand, how much protection for sources and unpublished information a journalist has once the disclosures are made depends confusingly on just who is asking, and where, how, and why.

Discussion (and Potential Distortion)

The discussion phase can for these purposes be divided into two situations: overt editorializing (or commentary or analysis) and the presentation of a news narrative that inherently characterizes people and their behavior or relationships, and does so inaccurately, with some harm to the subjects. The latter phenomenon is distinguished from what this article classifies as disclosure, in which the facts reported are accurately presented.

In Near v. Minnesota, 283 U.S. 697 (1931), the original prior restraint case, the Court held invalid under the First Amendment a statute authorizing permanent injunctions against "nuisances" in the form of publications of virtually any offensive content-from obscenity to mere scandal. The case resulted from its application to a small Minneapolis weekly notorious for its heated (and anti-Semitic) editorializing against local bootlegging and racketeering, and the lax law enforcement that permitted it to thrive. The Court's decision stood for the simple proposition that the injunctive power can never be used simply to shut down a newspaper, although certain specific publications might on rare occasions be restrained for reasons of overriding urgency and moment. By the late 1940s the Court had also settled in a series of cases the notion that harsh, unfair, irresponsible, and falsity-based criticism of a court or parties, in even a pending case, in a newspaper editorial or otherwise, cannot be punished as a contempt absent "a clear and present danger to the fair administration of justice." Times Mirror Co. v. Superior Court, 314 U.S. 252 (1941); Pennekamp v. Florida, 328 U.S. 331 (1946); Craig v. Harney, 331 U.S. 367 (1947).

Meeting the "clear and present danger" standard as a matter of prognosis, especially given the alternative hedges against prejudicial trial publicity authorized in Sheppard, is next to impossible for a court tempted to employ its contempt powers. But as for other contexts generally, subsequent liability may always loom for characterizations that are both false and damaging in editorials or news presentation. Were it not for New York Times Co. v. Sullivan, 376 U.S. 254 (1964), judges and other public officials could use the law of defamation to punish what the contempt cases held protected: misguided or even valid criticism of government in action. Sullivan may be regarded as both the century's most important First Amendment case and its most important civil rights case. It was prompted by a public interest advertisement taken out in the Times by a group of prominent civil rights leaders, citing aggressive behavior of the Montgomery, Alabama, police in reacting to a student demonstration, and asking for moral and financial support for the movement. The Montgomery police commissioner, L.B. Sullivan, sued the Times for libel, although he was neither named nor referred to in the advertisement. The Court held that under the First Amendment, public officials like the plaintiff could not recover for defamation without proof that the false and damaging statements concerning them were published either with actual knowledge of their falsity or with "reckless disregard" for their accuracy. Honest albeit negligent mistakes were protected as one price government officials paid for their prominence and power, and as a bulwark against seditious libel: punishment of government critics as such.

The Sullivan case together with its extensive progeny soon utterly transformed the law of libel. But its immediate effect was precisely to permit all who cared everywhere to hear the "rising voices," as the advertisement put it, of the civil rights leadership by decreeing that neither they nor the press that brought their struggles to worldwide attention need agonize over how to tell their stories without being taken before juries thoroughly hostile to them. The principle of shielding innocent error has since been generalized by being extended to suits by nongovernmental plaintiffs who are such general or special controversy "public figures" that they are deemed to have nonlitigation alternatives to correct false publicity, to have opened themselves to robust public comment by virtue of their voluntary entry into the spotlight, or both. The Court also has recognized protection for vigorous, colorful, and irreverent public discussion by holding that while there is no necessary First Amendment protection for a statement simply because it labels itself "opinion," the Constitution does not permit imposing tort liability on statements that cannot be taken as literal, provable (or disprovable) assertions of fact. Thus abrasive but metaphorical figures of speech or exercises in rhetorical hyperbole, or satirical fancy are protected. Greenbelt Cooperative Publishing Ass'n, Inc. v. Bresler, 398 U.S. 6 (1970); Letter Carriers v. Austin, 418 U.S. 264 (1974); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988); Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

In summary, protections for discussion under the First Amendment (virtually indistinguishable regardless of whether the press or the public is involved) allow for ample criticism of the government, debate about public issues, and social and cultural commentary of all kinds. As a supportive policy mechanism, state legislatures such as California's have begun to establish procedural hurdles against unmeritorious but intimidating tort suits predicated on speech or press offenses (SLAPPs), allowing Sullivan and other defenses, where applicable, to stop defamation and related litigation as soon as it is filed-or to deter it in the first place.

Conclusion: Journalists' Confidences versus Official Secrets

Everyone engages in what this article categorizes as discovery and disclosure of facts and discussion of their significance, and to that extent can rest secure in the press-won protections for these activities on any scale. Yet everyone, journalists included, would probably prefer that the amplified powers of the news media in pursuing these activities as an enterprise not cost them or their loved ones the benefit of a fair trial or expose or intrude upon their daily lives. In this sense, as noted in the introduction, almost all the press protections-and limitations-resulting from Supreme Court case law can be seen as advances for human and often specifically civil rights. The one exception, where a denial of press prerogatives results in no correspondingly direct protection for human or civil rights, is the Branzburg legacy of press exposure to grand jury inquisition. Here it is the prosecutorial arm of government that appropriates the sources and product of journalistic discovery, often for purposes it will not reveal. The vitality of that legacy as seen in the jailing of the Texas writer needs to be carefully considered at moments like the present, when the Congress is considering enacting what critics call a proposed "Official Secrets Act," that would impose serious criminal sanctions against government employees and agents who leak classified information. The law could affect several million persons with security clearances, and would implicate tens of millions of documents whose classified status has been applied, by definition, for reasons that cannot be revealed without a security breach. An obvious irony is that such a law will hardly deter the true traitors like those who have so devastated national security interests in recent years by channeling information covertly to foreign powers. But as to whistle-blowers-those who leak to the public through the press, such a law could seldom be enforced without the use of grand jury subpoenas to compel journalists to expose their sources. In the future, some might wonder, as they have in the past, whether the government itself has acted in betrayal of civil rights at home or human rights abroad. If the evidence had been classified, an "Official Secrets Act" would mean that it would not reach the public without severe jeopardy to both the sources and the press.

Terry Francke is general counsel for the California First Amendment Coalition, a nonprofit alliance of journalists, lawyers, public officials, and other citizens concerned with free speech, free press, and open government (www.cfac.org).

A Note from the Author

This article was written before September 11. Since then the press has seen access to a wide variety of information, including the contents of certain criminal court files and proceedings, restricted. It has seen physical access to scenes of newsworthy events severely threatened. And it has even seen the White House express concern to the federally regulated television networks about broadcast of videotaped statements by the nation's declared enemy.

Chief Justice Rehnquist observed in commenting on his book, All the Laws but One: Civil Liberties in Wartime, "Wartime presidents are inclined to prefer claims based on military necessity to claims of individual liberty, and courts come to the rescue of civil liberty only after the war is over." In light of recent events and Rehnquist's comments, the pending questions appear to be as follows: To what extent are the rights of the press among those civil liberties subject to curtailment "for the duration" of a conflict that may well last more than a generation? And more to the point, if, as the history of the past half century suggests, one of the principal roles justifying the unique franchise of the press is precisely to inform the public, candidly and independently, of the state of civil rights at home and of human rights abroad, how will those liberties fare if the order of the day is to disable or deter journalists'efforts to discover, disclose, and discuss what is being done in the name of freedom?

As published in Human Rights, Fall 2001, Vol. 28, No. 4, p.11-16.