By Ralph Gregory Elliot, USA.
The First Amendment of the United States Constitution states with
majestic simplicity: “Congress shall make no law...abridging the freedom of
speech, or of the press ...”
Supreme Court decisions over the years have
interpreted this unadorned sentence to bar government generally, including
state or local governments, from taking official action to abridge freedom of
the press. But that same Supreme Court has been equally clear that the First
Amendment is not an absolute, that in certain circumstances “freedom of
the press” must yield to other constitutionally-protected values, such as
national security and the right of a defendant to an unprejudiced fair trial.
The history of the First Amendment’s press clause has thus been one of
shifting lines back and forth along the broad frontier of freedom.
There are four basic stages at which freedom of the press has been or can
be limited: (1) access to information; (2) prior restraint on publishing
information (censorship, injunctions); (3) liability for publishing (libel and
invasion of privacy suits, fines and imprisonment); and (4) requiring
reporters to testify or otherwise disclose sources or materials gathered in
the course of their employment. While this fourth category technically does
not abridge freedom of the press-it does not bar access or prevent or punish
publications-the “chilling effect” it has upon the ability of reporters to
function and to gain their sources’ confidence certainly merits its inclusion.
ACCESS
Even after Richmond, infra, there is no constitutional guarantee of access
to most places or information, though several justices have strongly suggested
that the First Amendment would be violated by a complete ban on
access to a governmental facility like a prison. And the Supreme Court has
held in a series of decisions that the press has no right of special access to
places or information not shared by the public generally. Houchins v. KQED,
438 U.S.1 (1978); Pell v. Procunier, 417 U.S. 817 (1974); Saxbe v. Washington
Post Co., 417 U.S. 843 (1974).
This having been said, however, the courts have also emphasized that
members of the press are protected by constitutional rights to evenhanded
treatment. This has been required, for instance, in decisions as to which
persons receive White House passes and which do not, Sherill v. Knight, 569
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F.2d 124 (C.A.D.C.; 1978); and in which an “underground newspaper” had
been denied access to police department records available to other media,
Quad-City Community News Service, Inc. v. Jebens, 334 F. Supp. 8 (D. Iowa;
1971).
Legislation, of course, is one appropriate vehicle for securing access. The
classic statute of this sort is the Freedom of Information Act, both state and
federal, discussed elsewhere in this book. Dependence on legislation for any
press right, however, is a chancy business at best. For what this year’s legislature
gives, next year’s might take away; and the right based upon legislative
pleasure is always a precarious one.
In one area, however, the courts have increasingly recognized a constitutional
right of the press and public to access. That area is to the courts
themselves. Since the 1980s, the law has been clear that the First
Amendment guarantees a right of the public and the press to attend civil and
criminal trials, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) and
pre-trial proceedings (such as probable cause hearings in criminal cases),
Press-Enterprise Company v. Superior Court, 478 U.S. 1 (1986).
Before any such hearing may be closed, the court must hold a hearing on
the closure motion-even if both parties to the case agree to closure-and
the court must hear evidence showing why closure is necessary. The press
must be given an opportunity to present contrary evidence. Closure is permissible
only if, based upon evidence presented, the court makes specific
findings on the record that closure is essential to preserve values higher than
those underlying public access and that the closure is narrowly tailored to
serve that higher interest. Press-Enterprise, supra; Globe Newspapers v. Superior
Court, 457 U.S. 596 (1982).
If the “higher interest” sought to be served by closure is to ensure an
accused person a fair trial, closure is permissible only if the court, based on
evidence presented to it which the press has an opportunity to rebut, makes
specific findings demonstrating (1) that there is a “substantial probability”
(not just a “reasonable likelihood”) that the accused’s right to a fair trial will
be prejudiced by publicity that closure would prevent (as opposed to situations
where there has already been so much publicity that whatever prejudice
might exist already exists); and (2) reasonable alternatives to closure-
such as questioning of potential jurors, changing the jur y panel,
changing the date or site of the trial, clear instructions from the trial
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judge-cannot adequately protect the accused’s fair trial rights. Press-
Enterprise, supra.
It is not enough for a court to find that those alternatives
would be expensive or cumbersome. If they are “not beyond the realm of
the manageable,” they must be considered before closure can be justified.
Richmond, supra. And courts have held that while an accused is entitled to an
impartial jury, he or she is not entitled to one that has never heard of the
accused or the charges against the accused. Murphy v. Florida, 421 U.S. 794
(1975).
The Globe case, supra, held unconstitutional a law barring the public and
press automatically in all cases involving minors as witnesses as to certain
crimes. The Supreme Court emphasized that in each case closure must be
decided on a record based on the facts of that particular case, after a hearing
of the sort discussed above. Globe raises serious questions about the constitutionality
of laws such as those that mandate closed hearings in “juvenile”
cases. In addition, other courts have held that due process requires
there to be some sort of notice given to the public and the press -even if
it is just a written notice on the court’s docket or bulletin board-alerting
them whenever someone is going to try to close court proceedings. United
States v. Criden, 675 F.2d 550 (3 Cir.; 1982); In re Application of the Herald
Company, 734 F.2d 93 (2 Cir.; 1984).
The requirement that any closure that is ordered be “narrowly tailored”
to meet the need inspiring closure means that the court must be careful to
close only as much of the proceeding as the court finds access to it would
harm the accused’s right to a fair trial. If that means only one witness’s
testimony, or only a portion of that witness’s testimony, that is the only
portion that may be closed. Open courts are the rule; closure is the rare
exception.
Connecticut has supplied the public with a unique tool to protect its right
of access to court proceedings. Since 1980-even before Richmond, supra, was
decided -Conn. Gen. Stat. § 51-164x has provided that the effectiveness
of any court-order closing a court proceeding will be delayed for seventytwo
hours; and if within that time anyone (a newspaper, a reporter, a member
of the public) appeals to the appellate court, the order is further stayed
until the appeal is decided. The law also provides for a speedy appeal
process. Thus, in the highly unusual situation where a court has ordered
closure, the factual and constitutional issues will have an opportunity to be
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fully analyzed by the highest courts before this extraordinary remedy is
invoked.
While courts have not held that the electronic media (radio and television)
have a constitutional right to record, tape or broadcast live courtroom
proceedings, the Supreme Court has ruled that an accused’s constitutional
right to a fair trial is not violated by a court rule or statute that does allow
such access. This has encouraged many if not most states to permit radio
and television equipment to record and tape courtroom proceedings, usually
under carefully crafted rules designed to minimize the intrusive effect of
the equipment and its operation upon the proceedings. In Connecticut the
“broadcasting, televising, recording or photographing” of most- but not
all-civil and criminal court proceedings is authorized and governed by
Connecticut Practice Book § 1-10 and 1-11.
Courts increasingly have also recognized that the public and the press
have a First Amendment right of access to inspect and copy court files,
including exhibits introduced into evidence; and that before access to such
files can be denied, a court must hold the same kind of hearing and make
the same kind of findings required for closure of courtrooms. Matter of New
York Times Co.: United States v. Biaggi, 828 F.2d 110 (2 Cir.; 1987); Associated
Press v. United States District Court for the Central District of California, 705 F.2d
1143 (9 Cir.; 1983); United States v. Smith, 776 F.2d 1104 (3 Cir.; 1985); In
re Washington Post Co., 807 F.2d 383 (4 Cir.; 1986); United States v. Peters,
754 F.2d 753 (7 Cir.; 1985).
PRIOR RESTRAINTS
One reason the battleground has recently shifted to access is that it is so
difficult to prevent publication. In a series of decisions the Supreme Court
has held that the press is free to publish anything it sees or hears, even if
there is a law designed to prevent it from seeing or hearing the information.
New York Times Co. v. United States, 403 U.S. 713 (1971; the “Pentagon
Papers” case): Nebraska Press Association v. Stuart, 427 U.S. 539 (1976); Cox
Broadcasting Corp. v.Cohn, 420 U.S. 469 (1975). It has declared unconstitutional
statutes making publication of secret information a crime. Landmark
Communications, Inc. v. Virginia, 435 U.S. 829 (1978); Smith v. Daily Mail, 433
U.S. 97 (1979). Likewise, the press cannot be compelled to print what it
chooses not to publish. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241
(1974).
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Here again, however, there are no absolutes. Obscenity, difficult as it may
be to define, can be restrained from publication. Also, national security has
been recognized as a legitimate basis for banning publications, though what
the standards of this basis are (only during wartime? The quantum of clear,
certain and immediate danger required) remain murky at best. See, e.g.,
United States v. The Progressive, 467 F. Supp. 990 (W.D. Wisc.; 1979), dismissed,
610 F.2d 819 (7 Cir.; 1979); (the “hydrogen bomb case”).
The situation of the electronic media with respect to prior restraints is
inextricably intertwined with the fact that radio and television stations are
licensed by the Federal Communications Commission (“FCC”) and those
licenses must from time to time be renewed. The underlying justification
for licensure-that the broadcast spectrum is limited, that it is a public
resource, that its scarcity requires allocation by government to licensees
who operate to further the public interest-has been found to justify two
types of prior restraint by government: prohibitions on broadcasting certain
types of matter and a requirement that certain other kinds of matter be
broadcast. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1978); FCC v.
Pacifica Foundation, 438 U.S. 726 (1978); National Broadcasting Co. v. United
States, 319 U.S. 190 (1943).
The nature and variety of FCC restraints would take far more space than
is here afforded to discuss intelligently. That FCC right, however, is not
without limitation. The First Amendment does serve to place certain broadly
defined parameters around the right of government to dictate content to
the electronic media. Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U.S. 94 (1973); FCC v. League of Women Voters of California, 468
U.S. 364 (1984).
SUBSEQUENT SANCTIONS
Once data has been published, the publisher and reporter become potentially
liable for what they wrote or said. For while the public has received the
benefit of the dissemination of information-thus fulfilling a major purpose
of the First Amendment-people may have been hurt as a result, and the
law recognizes their right to be compensated.
Criminal sanctions are rare, of course, (See Landmark and Smith, supra). If,
however, a court has issued a gag order barring publication, a reporter or
publisher can have appropriate sanctions-fine, imprisonment for con-
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tempt of court-imposed upon him or her for violating that court order,
even if a higher court later finds the order was wrong. United States v.
Dickinson, 465 F.2d 496 (5 Cir.; 1972); but see In re Providence Journal, 820
F.2d 1342 (1 Cir.; 1987), cert. dismissed, 485 U.S. 693 (1988) (discussing
“transparently invalid” court orders).
The two primary legal remedies for illegally published material, however,
are civil suits for invasion of privacy and libel. The former is treated elsewhere
in this book. Suffice it here to be said that Connecticut’s courts recognize
all four of the separate types of invasion of privacy actions: (1) intrusion
(whether by physically entering property without permission or by
bugging or secretly recording, photographing or taping); (2) publication of
embarrassing facts even though truthful if the matter would be highly offensive
to a reasonable person and not of legitimate concern to the public; (3)
false light, if highly offensive to a reasonable person and if the publisher
knew of the falsity of the publication and the false light or acted in reckless
disregard of truth or falsity; and (4) misappropriation of name of likeness
(e.g, using someone’s photograph without permission in an ad).
LIBEL
By far the best known remedy is a “libel suit”. A “libel” in Connecticut
has been defined as a false and malicious publication concerning a person
which exposes him or herself to public ridicule, hatred or contempt, or hinders
virtuous persons from associating with him or her. Burns v. Telegram
Publishing Co., 89 Conn. 549 (1915). Ever since the Supreme Court decision
in New York Times v. Sullivan, 376 U.S. 254 (1964), however, the law of
libel has become “constitutionalized;” and while libel law continues to
retain great vitality, it must always be judged by its effect upon First
Amendment press rights.
Specifically, no person who is a public official or a “public figure” may
succeed in a libel suit against a publisher about an article relating to his or
her official conduct or public figure status unless he or she proves “actual
malice”-that is, that the publication was false and that when printed, the
publisher did so in reckless disregard of whether it was false or not. Mere
negligence is not enough fault where a public official or “public figure” is
concerned.
While this standard may seem clear, it has proven to be anything but in
practice. For one thing, the phrase “actual malice” is a misnomer. It has
nothing to do with the traditional “malice”-hatred, spite, ill will or
improper motive. A reporter can hate the subject of his or her story and
write it hoping to cause hurt; but if the story is true, or if the story is false
but the reporter thought it was true or tried his or her best to make certain
it was true, there is no “actual malice.” In order for a plaintiff to prove
“actual malice,” the plaintiff must prove by “clear and convincing evidence”
(not just the usual “preponderance of evidence”) that the defendant either
knew that the statement was false or, in fact, entertained serious doubts
about its truth, or that the source on which the reporter relied was inherently
unreliable. This is a very difficult standard to meet.
There has been a continuing debate in the Supreme Court over who is a
“public figure.” Clearly Muhammad Ali is. But is Oliver Sipple, the ex-
Marine who saved President Ford’s life in San Francisco and then had his
private life exposed nationwide? Some people are public figures for all purposes;
anything written about them is probably subject to the “actual malice”
test if they sue for libel. Other “public figures” are only limited-purpose
public figures; the mother who leads the fight to prevent a school from
being closed may be a public figure only so far as the stories concern her
fight for the school, but not her qualities as a wife, mother, daughter or registered
nurse. Which status a person occupies becomes important because
status determines how difficult it will be for him or her to win a libel suit.
The more “public” a person is, the more he or she is assumed to have taken
the risk of publicity, and the greater his or her burden in proving a libel case.
AN ILLUSTRATION OF THE “PUBLIC FIGURE” DILEMMA
A decision by the United States Court of Appeals for the District of
Columbia attempts to devise some tests for who is a public figure, and what
kind of public figure he or she is. Waldbaum v. Fairchild Publications, 627 F.2d
1287 (D.C. Cir.; 1980), cert. den., 101 S.Ct. 266. Usually, one who is an
“all purpose public figure” (like Muhammad Ali) also has access to the
media if defamed. Thus, he or she has a means of responding to defamation
other than merely a lawsuit: he or she can generate publicity him or herself.
Also, usually, he or she is a person who voluntarily came to public prominence
(Ali, as opposed to a vacationer who leaps into the ocean to save a
drowning child.)
Those who are not public figures for all purposes may be limited issue
public figures-persons who “have thrust themselves to the forefront of
particular public controversies in order to influence the resolution of the
issues involved.” Such a person is “an individual [who] voluntarily injects
himself or is drawn into a particular public controversy and therefore
becomes a public figure for a limited range of issues.” Gertz v. Robert Welch,
Inc., 418 U.S. 323, 345, 351 (1974).
What qualifies as a “public controversy” is a ripe subject for debate. The
court in Waldbaum says a “public controversy is not simply a matter of
interest to the public; it must be a real dispute, the outcome of which affects
the general public or some segment of it in an appreciable way.”
“If the issue was being debated publicly and if it had foreseeable and
substantial ramifications for non-participants, it was a public controversy.”
The fight to save a school from being closed would thus clearly qualify as a
“public controversy.” But what about debate on the best solution for the
Arab-Israeli impasse? How about whether Shakespeare’s works were
written by Bacon, Marlowe or the Earl of Oxford? With so narrow and
precise a definition as suggested by the Waldbaum court, the task becomes
both more difficult and more artificial and, inevitably, subjective.
One thing the Supreme Court has held in this regard, however, comes as
somewhat of a surprise. It has held that publicity surrounding litigation does
not by itself elevate the parties to the status of public figures (even limited
purpose public figures), even if they could anticipate the publicity, unless
they are using the court as a forum for espousing their views in other controversies
(e.g., a crusading atheist who sues to have “In God We Trust”
eliminated from U.S. currency). Wolston v. Reader’s Digest Ass’n, 443 U.S. 157
(1979); Time, Inc. v. Firestone, 424 U.S. 448 (1976), wherein a socially
prominent wife of a Firestone heir, who herself held press conferences and
kept a clipping service, was held not to be a public figure for purposes for
an item in Time about her divorce suit.
To be a public figure with respect to a public controversy, the plaintiff
“either must have been purposely trying to influence the outcome or could
realistically have been expected, because of his position in the controversy,
to have an impact on its resolution,” says the court in Waldbaum. Thus, presumably
the leader of the protest march, but not necessarily every picket,
would be a public figure (assuming that they were marching about some-
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thing that was the subject of real public debate and controversy, whatever
that might mean).
The haziness of these definitions becomes abundantly apparent when one
reviews the Waldbaum case itself. In a five-sentence item about Waldbaum’s
dismissal as president of the second largest consumer cooperative in the
world, a trade publication stated that the co-op had been “losing money the
last year and retrenching.” After elaborately explaining the need and tests
for “public controversy” and active participation, the court held Mr.
Waldbaum to be a public figure because “he was the mover and shaper of
many of the co-operative’s controversial actions. He made it a leader in unit
pricing and open dating. He supervised, or at least approved, the consumeroriented
views that appeared in Co-op Consumer...He became an activist,
projecting his own image and that of the cooperative far beyond the dollars
and cents aspects of marketing.”
However much one may agree that Mr. Waldbaum ought to have been a
public figure, it is difficult to draw the conclusion by applying the court’s
own tests. The article in question was a five-sentence item about
Waldbaum’s dismissal. So far as the court’s opinion discloses, this dismissal
generated no “public controversy” no “real dispute, the outcome of which
affects the general public or some segment of it in an appreciable way.”
There was no “issue...being debated publicly” which “had foreseeable and
substantial ramifications for non-participants.”
Waldbaum displays in one case setting the extraordinary difficulty in
determining who is or is not a public figures based on these Gertz tests. Far
easier, and far more intelligent in the view of many, was the now rejected
test set forth in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971), which
focused on the nature of the event, rather than the status of the plaintiff.
Rosenbloom held that any plaintiff had to show “actual malice” when suing
for libel about a defamatory falsehood “relating to his involvement in an
event of public or general concern.” The Rosenbloom justices (a plurality,
not a majority) reasoned as follows:
If a matter is a subject of public or general interest, it cannot
suddenly become less so merely because a private individual is
involved, or because in some sense the individual did not “voluntarily”
choose to become involved. The public’s primary
interest is in the event; the public focus is on the conduct of the
participant and the content, effect and significance of the conduct,
not the participant’s prior anonymity or notoriety.
That view, as noted, was rejected by Gertz, which established the “all purpose”
and “limited purpose” public figure categories, relegating all other
non-public officials to private figure status, (though the Supreme Court
later revived it in setting standards of proof for presumed or punitive damages.
Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749 (1985)). The
advantage of being a private figure is, of course, that his or her burden of
proof is less in libel cases. A private figure must still prove that the statement
was false and that it was defamatory, (a false but flattering statement would
usually not be actionable). And he or she must still show some element of
fault; the mere fact of having published a false and defamatory statement
will not suffice for liability.
But the degree of fault is significantly less than
“actual malice.” Precisely what it is up to each state, by court decision or
statute, to decide. Some states have adopted “gross negligence” as a standard.
Others have adopted simple negligence. Connecticut’s Supreme
Court has not yet had the occasion to deal with this issue, but one superior
court decision has assumed that simple negligence would be what plaintiff
must prove. And even damages for “actual injury” are available only where
the substance of the defamatory statement warns a reasonably prudent
editor of its defamatory potential.
In addition to constitutional defenses such as “actual malice,” a defendant
in a libel case may have other defenses that have developed in the
common law. For example, an accurate report of the proceedings of executive,
legislative, administrative and judicial bodies is absolutely privileged
from liability, even if what is quoted from these proceedings is false and
defamatory.
COMPELLED DISCLOSURE
In the absence of a state shield law, a reporter can be subpoenaed to come
to court and to testify or supply materials gathered in the course of covering
a story under certain circumstances. Branzburg v. Hayes, 408 U.S. 665
(1972) held that reporters have no constitutional right to disobey grand jury
subpoenas and to answer questions relevant to an investigation into the
commission of a crime. This general holding has been interpreted to include
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criminal trial juries as well. The inquiry must be conducted in good faith,
however, and the questions must be relevant and material and not asked for
purposes of harassment or disrupting the reporter’s relationship to his or
her news sources.
As Justice Powell stated in his concurring opinion:
If the newsman is called upon to give information bearing only
a remote and tenuous relationship to the subject of the investigation,
or if he has some other reason to believe that his
testimony implicates confidential source relationships without
a legitimate need of law enforcement, he will have access to the
court on a motion to quash and an appropriate protective
order may be entered.
The law in this state is further amplified by Baker v. F & F Investment, 470
F.2d 778 (2 Cir.; 1972) which held that before a reporter (in a civil trial, at
least) could be required to divulge the identity of his or her source, the person
seeking the answer had to show he or she had exhausted other sources
that could supply the same information and that the information the person
sought to elicit went to the heart of the case. The reasoning of Baker
was adopted by the superior court in Connecticut in Conn. Labor Relations
Board v. Fagin, 33 Conn. Sup. 204 (1976).
What may be protected unless this test is met are not only the identity of
a reporter’s confidential sources, but his or her nonconfidential sources as
well, and also a reporter’s notes, tapes and other materials gathered or
prepared as part of the reportorial or newsgathering work. von Bulow v. von
Bulow, 811 F.2d 136 (2 Cir.; 1986), cert. den., 107 S.Ct. 1891 (1987).
When a reporter is a witness in a libel action in which plaintiff is a
public figure and must thus bear the heavy burden of proving “actual
malice,” the Supreme Court in Herbert v. Lando, 441 U.S. 153 (1979) has
held that the reporter may be compelled to disclose the “editorial
process”-discussions that occurred about what to include and leave out,
which source was credible and which was not, and the reporter’s thoughts
and impressions.
CONCLUSION
The lesson to be learned from this brief exposition of press law is that
nothing is certain or ever will be about the subject. Given the longstanding
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view that the First Amendment is not an absolute, the degree to which
restrictions and restraints and sanctions concerning access, publication, liability
and disclosure will be imposed upon members of the press will always
be subject to uncertainty. Common law-constitutional law-is made up of
individual decisions in specific cases. It may be that the particular facts of a
certain case may so impress the courts that they will broaden or contract the
rights of the press; and that decision, and the reasoning of the opinion
announcing it, will cause the press pleasure or pain until the next decision
comes along.
The right of the press to see, hear and publish freely-or as freely as possible
in a society where others have constitutional rights in competition with
those of the press-is a precious right, and the more precious because it is
so fragile, so subject to the changing winds of popular mood and the unpredictable
vagaries of particular cases, particular courts and particular judges.
Like any precious, fragile and constantly threatened right, its only hope for
life rests in the constant and unrelenting vigilance of those who understand
it best and most appreciate its value-the members of the press themselves.
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