FIRST
AMENDMENT LAW LETTER, Summer 2001
Publications of Recorded Telephone Calls
Questions Asked - And Left Unanswered - By Bartnicki, Peavy
and Boehner
At its core, Bartnicki v. Vopper,
__ U.S. __, Nos. 99-1687 and 99-1728 (May 21, 2001), provides strong
support for the constitutional right of the press to publish truthful
information about matters of public interest. However, the United
States Supreme Court's concern with possible abuses of technological
advances, and the impact of those abuses on Americans' right to
privacy, was palpable. In the midst of these clashing interests,
Bartnicki made clear at least one important rule for newsrooms:
journalists and others cannot be punished for disclosing the contents
of an illegally intercepted telephone conversation so long as
(1) the information concerns an issue
of "public importance" (or perhaps "unusual" public importance),
and
(2) the press did not "participate"
in or "encourage" the interception of the phone call.
The parameters of these two important qualifications
remain unclear. How should reporters and editors proceed when faced
with the question of whether to publish tapes of - or information
gleaned from - secretly recorded telephone conversations? Two other
cases that percolated as far as the Supreme Court's door provide
some guidance, but no clear-cut answers. On May 29, 2001, just eight
days after announcing its decision in Bartnicki, the Supreme
Court denied certiorari in one of these cases, and granted
certiorari - vacating and remanding the Circuit Court opinion
- in the other.
The Court let stand the Fifth Circuit's
opinion in Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir.
2000), cert. denied, __ U.S. __ (May 29, 2001), a case that
should cause concern in any newsroom presented with a highly newsworthy
- but illegally intercepted - telephone recording. (Davis Wright
Tremaine filed a brief amicus curiae on behalf of several
print and television media organizations in the Fifth Circuit, arguing
that application of federal and Texas wiretap laws violated the
First Amendment.) While the Supreme Court's denial of certiorari
reveals little about how it viewed the media's conduct in Peavy,
it may be significant that in footnote 5 of Bartnicki, the
Court discussed the "similar" Peavy case, stating that the
media defendants there "in fact participated in the interceptions
at issue." As discussed below, however, the Texas television station
in Peavy did not directly intercept any conversations, nor
did it pay or induce others to do so. Thus, a detailed discussion
of the facts of Peavy is helpful for understanding when journalists
may face legal risk for "participating" or "encouraging" the illegal
interception of a telephone call.
The same day it addressed Peavy,
the Supreme Court also vacated and remanded the decision in Boehner
v. McDermott, 191 F.3d 463 (D.C. Cir. 1999), cert. granted,
vacated and remanded, __ U.S. __ (May 29, 2001). That decision
also focused on the Federal Wiretap Act's "use and disclosure" prohibition
and concluded that Congressman James McDermott had violated the
Act. While the appellate decision in Boehner directly conflicted
with Bartnicki in several respects, it is uncertain how the
non-media parties there will fare on remand in light of the complexities
presented by the three different Supreme Court opinions in Bartnicki.
As these three cases reveal, the legal landscape
regarding the use and disclosure of illegally obtained telephone
conversations remains unpredictable. How are journalists to determine
if a recorded conversation is "important" enough so that its publication
is protected by the First Amendment? What about conversations between
people who are not - as in Bartnicki - limited purpose public
figures? Reporters are shielded by the First Amendment if they know
only that a telephone conversation they intend to disclose was illegally
taped, but what about situations where the reporter knows the identity
of the unlawful interceptor and perhaps even spoke to her during
the period the conversations were being taped? Does the mere fact
that such conversations occurred mean the reporter "encouraged"
unlawful taping? These and other questions were not fully answered
by the unusual situation presented in Bartnicki, where it
was agreed for purposes of argument that the press truly was ignorant
of the facts surrounding the interception, and where the conversations
about threats of violence during a union dispute were so unquestionably
of public importance.
The Supreme Court's Bartnicki
Opinions
As is often the case, the guidance provided
by Bartnicki is obscured by the Justices' multiple opinions.
Five joined the majority decision authored by Justice Stevens. However,
two of them - Justices Breyer and O'Connor - also signed onto a
separate concurring opinion that more narrowly interprets the constitutional
protections for publication of the contents of illegally intercepted
telephone calls. A dissenting opinion by Chief Justice Rehnquist
was joined by Justices Scalia and Thomas.
The facts giving rise to Bartnicki
are straightforward. Gloria Bartnicki and Anthony Kane, both
union officials engaged in contentious collective-bargaining negotiations
with a local school board, sued Jack Yocum, a radio station and
a reporter for violation of the Federal Wiretap Act, 18 U.S.C. §
2511(1)(c) and (d) et seq., which proscribe the willful "disclosure"
and "use" of intercepted telephone conversations that one knows,
or reasonably should know, were illegally obtained. Similar provisions
of a Pennsylvania statute also were allegedly violated. An unknown
person had intercepted a cell phone conversation between Bartnicki
and Kane during which union negotiation strategy was discussed,
including Mr. Kane's remark "we're gonna have to go to [school board
members'] homes
to blow off their front porches, will have to do
some work on some of those guys." The unidentified interceptor left
the tape in the mailbox of Yocum, a known union adversary. Yocum,
in turn, provided the tape to local news media, including radio
commentator Frederick Vopper. Vopper and other media representatives
played the tapes in their news reports.
The district court denied the parties' cross
summary judgment motions. On interlocutory appeal, the Third Circuit
rejected the contention that Smith v. Daily Mail Publishing Co.,
443 U.S. 97 (1979), controlled, relying on footnote 8 in Florida
Star v. B.J.F., 491 U.S. 524 (1989), which "explicitly repudiated
any suggestion that [Daily Mail] answers
whether a statute
that limits the dissemination of information obtained by means of
questionable legality is subject to First Amendment scrutiny." (Emphasis
added.) A split Third Circuit went on to apply intermediate constitutional
scrutiny based on its holding that the "use and disclosure" prohibitions
were content-neutral. The Court, however, held that the federal
and state wiretap laws nonetheless were unconstitutional as applied,
in large part because it was not alleged that respondents participated
in, or encouraged, the interception. Thus, according to the Third
Circuit, the wiretap laws deterred more speech than was necessary
to protect the private interests at stake, and a remand was issued
with instructions to enter summary judgment for respondents.
The Supreme Court affirmed, but used the
framework of strict scrutiny, finding that even though the laws
at issue were content neutral, the highest level of constitutional
review was required because both Yocum's and the media's activities
amounted to "pure speech." The Supreme Court assumed four facts:
(1) the interception was unlawful;
(2) the media and Yocum knew - or had
reason to know - the conversation was unlawfully taped;
(3) the media and Yocum had obtained
the tape lawfully and "played no part in the illegal interception";
and
(4) the information disclosed on the
tape about the labor negotiations was truthful and of public
importance.
Justice Stevens' Majority Opinion
The "novel and narrow" issue Bartnicki
addressed was "what degree of protection, if any, the First Amendment
provides to speech that discloses the contents of an illegally intercepted
communication." The Court expressly avoided - as it has before -
the broader issue of whether the government ever can punish the
publication of truthful information of public concern where the
media obtained the information unlawfully.
Bartnicki presented a conflict between
interests of "the highest order," namely, the dissemination of information
about public issues and the interest in individual privacy and,
more specifically, in "fostering private speech." Because Constitutional
framers did not foresee "the advances in science that produced the
conversation," it was not surprising to the Court that judges and
justices had come to different conclusions about the application
of the First Amendment. The majority, however, was "firmly convinced"
that the disclosures in the unlawfully-obtained cell phone conversation
were constitutionally protected. Thus, as applied, the Federal Wiretap
Act was unconstitutional. Absent a need of the "highest order,"
the government's prohibition on the disclosure of truthful, publicly
important cell phone conversations could not satisfy constitutional
principles.
The Supreme Court majority rejected, out
of hand, the government's argument that punishing the disclosure
of information was necessary, even if the press did not participate
in the unlawful interception, so as to remove the incentive of others
to illegally record telephone conversations. The government's second
interest, protecting the sanctity of "privacy," was "considerably
stronger," in part because of the "fear of public disclosure of
private conversations might well have a chilling effect on private
speech." However, under the facts raised in Bartnicki, the
First Amendment right to publish the publicly important conversations
prevailed. The Court cautioned, however, that in other circumstances
- such as those where the telephone conversations at issue involve
"disclosures of trade secrets or domestic gossip or other information
of purely private concern" - First Amendment interests may not triumph.
The majority was swayed not only by the
enormous public importance of the content of the conversation in
Bartnicki - a discussion of possible physical threat to opponents
in a union dispute - but by the fact that the parties to the conversations
had participated in public affairs, and thus had an "attendant loss
of privacy." More broadly, the Court's opinion is based on the pronouncement
in New York Times v. Sullivan, 376 U.S. 254, 270 (1964),
endorsing the "'profound national commitment to the principle that
debate on public issues should be uninhibited, robust and wide-open.'"
Justice Breyer's Concurrence
Justices Breyer and O'Connor not only joined
in the Court's majority opinion, but also wrote and joined, respectively,
a concurring opinion. Specifically, they joined in the majority's
"narrow" holding, which was limited to the special circumstances
Bartnicki presented: the media acted lawfully, at least until
the time of final public disclosure; the public interest in the
conversations was "unusually high"; and the privacy expectations
of the limited purpose public speakers was "unusually low." (Emphasis
added.) Justice Breyer carefully stated his view that the Court
was not implying "a significantly broader constitutional immunity
for the media." He noted that "the Constitution permits legislatures
to respond flexibly to the challenges future technology may pose
to the individual's interest in basic personal privacy."
Furthermore, Justice Breyer's concurrence
did not endorse the majority's application of the strict scrutiny
test, finding it "out of place." Instead, he advocated a balancing
approach under which important constitutional privacy and free speech
interests are weighed. Indeed, the concurring opinion goes so far
as to state that "[a]s a general matter," statutes such as the Federal
Wiretap Act, which pose "direct restrictions on speech," must be
tolerated because of the importance of the "privacy and speech-related
objectives." "Nonetheless,
as applied in these circumstances,"
the wiretap laws "disproportionately interfere with media freedom."
Justice Breyer based this conclusion on several facts, including
that the media did not encourage or counsel the interceptor, or
directly or indirectly participate in the interception. In addition,
the speakers "had little or no legitimate interest in maintaining
the privacy" of their conversations because wrongful acts were discussed,
because the subject of the conversations were "far removed" from
"truly private matters," and because each speaker was a limited
purpose public figure.
Thus, according to the concurrence, Bartnicki
does not create a "public interest exception that swallows up the
statutes' privacy-protecting general rule. Rather, it finds constitutional
protection for publication of intercepted information of a special
kind."
The Chief Justice's Dissent
The three-Justice dissent in Bartnicki
focuses on the First Amendment rights of persons not to speak. Chief
Justice Rehnquist - who would have upheld the application of the
wiretap laws under an intermediate scrutiny analysis - was especially
concerned about chilling the speech of Americans who use "electronic
technology to communicate each day." The dissent characterizes the
majority's "public concern" test as "an amorphous concept that the
Court does not even attempt to define."
THE PEAVY AND BOEHNER DECISIONS
Just days after rendering its Bartnicki
decision, the United States Supreme Court denied certiorari
in another case dealing with the media's publication of unlawfully
intercepted phone conversations, and granted certiorari in
another interception case where the media is not a party. The ambiguity
journalists face in the post-Bartnicki world may largely
be resolved by the litigation surrounding these other two disputes.
Of particular concern for the media is the Fifth Circuit decision
in Peavy that the Supreme Court let stand, at least for now.
It provides ample grounds for reporters to be wary anytime they
are presented with tapes of illegally intercepted telephone conversations.
Peavy v. WFAA-TV, Inc.
In Peavy, the "use" and "disclosure"
provisions of the Federal Wiretap Act were at issue, as was a similar
Texas law. In addition, it was alleged that the media defendants
illegally "procured" and "obtained" a third party to make the telephone
recordings at issue. It was not disputed that plaintiff Carver Dan
Peavy's cordless telephone conversations were illegally recorded
by his neighbor, Charles Harman, who provided them to reporter Robert
Riggs and WFAA-TV.
The district court granted the media's summary
judgment motion on the ground that the First Amendment trumped the
federal and state wiretap laws. The Fifth Circuit, however, in large
part disagreed. In light of the Supreme Court's May 29 decision
declining review, the case will now be remanded to the trial court
for further proceedings consistent with the Fifth Circuit's decision.
The Circuit Court's seemingly hostile characterization
of the media's activities in Peavy does not intuitively follow
from the reporter's seemingly well-intended actions. Peavy was an
elected trustee for the Dallas Independent School District who controlled
its insurance purchases; thus, like the cell phone users in Bartnicki,
he likely was a limited purpose public figure. One of Peavy's friends
and business associates was Eugene Oliver, an insurance agent who
had been convicted as an accomplice to murder. Part of Peavy's background
included several long-term disputes he had with Harman.
In 1994, Harman and his wife bought a police
scanner to check on law enforcement activity in their neighborhood.
One of the first conversations they overheard was between Peavy
and another neighbor talking about filing a class action against
the Harmans. Before reporter Riggs ever got involved, the Harmans
had locked their scanner onto the Peavys' cordless phone frequency
and continued listening to their conversations, which the Harmans
claimed involved threats to their safety and "public corruption"
on Peavy's part in connection with the District's insurance purchases.
The record is in conflict about whether
the Harmans were told by police that their interception of the cordless
phone conversations was legal. What is clear is that the Harmans
became frustrated that police failed to act on their reports of
Peavy's conversations. So, like many other Americans, the
Harmans turned to their local television station. WFAA's investigative
reporter Riggs was assigned to follow-up with Harman's allegations
that Peavy was threatening to harm Harman, and was involved in insurance
kickbacks.
When he met in person with the Harmans for
the first time, Riggs was told about cordless phone conversations
that had been incepted but not recorded. During this meeting, the
reporter also heard - and was provided with a copy of - a tape-recorded
conversation, and he was shown the Harmans' scanner. Riggs responded
affirmatively to the Harmans' inquiry about whether he wanted tapes
of Peavy's conversations that the Harmans might make in the future.
Over the next month reporter Riggs received 17 more tapes from the
Harmans; in total, 188 conversations between the Peavys and others
were recorded.
At his first meeting with the Harmans, Riggs
instructed them to leave the tape recorder on while recording and
not to edit the tapes, so as to better ensure their authenticity.
When he returned to the newsroom with the first tape of Peavy, it
was agreed among those involved at WFAA that Peavy's activities
should be investigated further before any news report would air.
The record is not consistent about whether
the Harmans told Riggs that law enforcement officials had approved
of the taping. Riggs claims he did not consult with WFAA's counsel
until a few days later. He and others at the station were told it
was permissible to record cordless telephone conversations, and
to broadcast that information. However, a short while later, Riggs
learned that his attorney had erred and that just six weeks before
his first meeting with the Harmans, the Federal Wiretap Act had
been amended to cover cordless, as well as cell phone interceptions.
Upon learning this, Riggs and the station decided not to accept
any more tapes from the Harmans, even though the station's attorney
told them that in his opinion the First Amendment trumped the wiretap
laws and protected the publication of the tapes since they had been
lawfully obtained by the station. The media's attorney, however,
advised WFAA that the more "conservative approach" would be not
to accept any additional tapes, not to broadcast the contents of
the tapes, and not to confront individuals about the conversations
unless the same information was available from other sources. The
media's attorney further advised that the station could continue
investigating Peavy and the District's insurance practices
using other means of investigation.
Shortly before learning that federal law
prohibited the taping of cordless phone conversations, and in an
effort to preserve the integrity and accuracy of its investigation
into Peavy's public affairs, the television station had portions
of the tapes they believed evidenced public corruption and racial
discrimination transcribed by a court reporter. The station also
took steps to keep the tape and transcript confidential. Of the
188 conversations that were recorded, most were not transcribed.
According to the Fifth Circuit, "[g]enerally, they concern [District]
insurance and Peavy's conduct as a [District] trustee, a plan to
sell cancer insurance to an entity other than [the District], and
Peavy's relationship with Oliver." The tapes also had "intensely
personal matters" and included "offensive language."
After learning that federal law prohibited
the interception of cordless phone conversations, and as advised
by their attorney, WFAA continued its extensive investigation of
Peavy and the District using other sources, including government
records, personal interviews, campaign contribution lists and meeting
minutes. Also, after learning that the interceptions of Peavy's
conversations were illegal, reporter Riggs told law enforcement
agents about the tapes' contents and other information he had learned.
Three broadcasts resulted from WFAA's investigation
of District trustee Peavy's alleged wrongdoing in connection with
insurance purchases. The actual tapes were not aired, although the
district court held that the contents of some of the tapes were
"disclosed." The media defendants strenuously disagreed, insisting
that the broadcasts contained information based on sources entirely
independent of the tapes. The Fifth Circuit said that the evidence
on this subject created a question of fact that should be litigated
on remand. Less than one year after the broadcasts, Peavy and Oliver
were indicted for bribery and other charges. They were acquitted
and, not surprisingly, a few months later sued Riggs and WFAA.
The case wound its way to the Fifth Circuit,
which last July held that a question of fact was presented about
whether the television station and reporter Riggs "obtained" the
Harmans to unlawfully intercept the phone conversations under Texas
law, and whether the media defendants violated the "use and disclosure"
provisions of federal and state law. Unlike Bartnicki, the
Fifth Circuit employed intermediate scrutiny, perhaps consistent
with the Supreme Court's Bartnicki decision given that it
is possible that more than "pure speech" was at issue vis-ΰ-vis
the Peavy media defendants.
What is most troublesome about Peavy
is that the reporter's conduct does not appear out of line when
examined in the context of traditional newsgathering techniques.
Despite this, the trial court will now be faced with deciding whether
the media violated the prohibition on "obtaining" another to intercept
a telephone conversation based on Riggs' receipt of tapes made after
he had contacted the Harmans. 18 U.S.C. § 2511(1)(a). This question,
according to the Fifth Circuit, may depend on the extent of the
media defendants' knowledge of the Harmans' illegal interceptions,
even though there was no dispute the television station was not
involved in the Harmans' purchase of the scanner or their initial
interceptions of Mr. Peavy's conversations. Furthermore, the media
defendants face liability under the Federal Wiretap Act's "use and
disclosure" prohibition, which the Fifth Circuit held was violated
"as a matter of law" in "contexts other than" defendants' television
broadcasts.
Thus, even in situations where the media
contends that they did not cause, instigate, enlist, or participate
in efforts by others to make illegal telephone interceptions, they
may face civil liability under federal and state wiretap laws. For
example, the risk of liability may exist if the media's investigation
about a particular matter merely encourages a third party to continue
taping, even when other motivations for this illegal activity exist.
In this circumstance, at least according to the Fifth Circuit, the
application of the content-neutral Federal Wiretap Act might not
violate the First Amendment. While portions of the Circuit Court's
rationale are certainly in conflict with the Supreme Court's Bartnicki
opinion, it is uncertain what the country's high court would say
if presented with a more fully developed factual record in Peavy.
Boehner v. McDermott
On May 29, 2001, the District of Columbia
Circuit's opinion in Boehner was vacated, and the case remanded
in light of Bartnicki. The vacated opinion had held that
the Federal Wiretap Act did not violate the First Amendment rights
of Congressman James McDermott, who had delivered an illegally-recorded
tape of a cell phone conversation to a newspaper (which was not
sued). Using a radio scanner, a Florida couple - John and Alice
Martin - had intercepted conversations between Republican Congressmen
John Boehner and Republican Party leadership. The couple gave the
tape to McDermott, the then-ranking Democratic member of the House
Ethics Committee, along with a cover letter stating that the tape
contained a conference overheard on a "scanner" and that the Martins
understood they would be granted immunity.
Indeed, McDermott was not as uninvolved
with the interceptors as the respondents in Bartnicki. A
woman from his staff allegedly had had a discussion with the Martins
- after they intercepted the telephone call but before they delivered
the tape to McDermott - during which immunity for the Martins' illegal
interception was discussed.
Significantly, the tape at issue involved
a matter of enormous public importance; it was made during a time
that then-Speaker Newt Gingrich was being investigated for alleged
ethics violations and the conversations were about Republican strategy
over an expected announcement of Gingrich's agreement to accept
a reprimand and pay a fine in exchange for avoiding a public hearing.
After McDermott received the tape, he delivered
it to three newspapers. When the Martins publicly confessed their
role in the recording, McDermott resigned his post on the Ethics
Committee and provided other Committee members with a copy of the
tape. The Martins were prosecuted by the Justice Department and
- as reported in Bartnicki - were fined only $500 because
they did not eavesdrop "for purposes of direct or indirect commercial
advantage or private financial gain."
The trial court had held that the First
Amendment barred Congressman McDermott from being found liable under
the federal law's "use and disclosure" prohibition, primarily because
McDermott did not act unlawfully when he obtained the tape from
the Martins, and because the tape was of public importance. A split
Circuit Court reversed, holding that despite the public importance
of the conversations at issue in Boehner, intermediate scrutiny
should be applied because the Federal Wiretap Act's provisions were
content neutral. Of course, this contrasts with Bartnicki,
where the Supreme Court held that strict scrutiny must be applied
because not only the media's conduct - but also the conduct of the
intermediary who delivered the tape to the press - was "pure speech."
Punishing Congressman McDermott, and not intermediary Yocum, would
appear inconsistent, unless a court were to heavily rely on the
immunity discussions the Martins had with a representative of McDermott's
staff before the Congressman received the tapes. Because of this
circumstance, the Circuit Court had held that McDermott did "participate
in" the Martins' illegal conduct and their "transaction may have
involved a quid pro quo," given the Martins' alleged belief
that they had been promised immunity for their illegal conduct.
The Supreme Court's vacating the Circuit
Court's decision in Boehner likely is based on the enormous
public importance of the intercepted political conversations at
issue in that case. In both Boehner and Bartnicki,
the defendants/respondents were deemed to have known that the tapes
at issue were illegally recorded, and both the conversations at
issue were about timely and controversial public issues. As the
Supreme Court pointed out in footnote 5 of Bartnicki, however,
the defendant in Boehner "knew both who was responsible for
intercepting the conversation and how they had done it." However,
the Court - in another Bartnicki footnote - endorsed the
view of the dissenting Third Circuit Justice in Boehner,
agreeing that what was being punished was speech, dependent on the
nature of its contents.
WHAT THIS MEANS FOR REPORTERS NOW
The ambiguity that results from this overlay
of opinions addressing the disclosure of illegally recorded telephone
conversations will make for difficult decisions in newsrooms across
the country. Some of the most problematic issues are discussed below.
How "Publicly Important" Must The Conversation
Be?
The only completely secure safe harbor for
journalists who wish to publish illegally intercepted telephone
conversations involves a situation where the discussions are of
enormous public importance and relate to governmental affairs. It
simply is unknown if Justice Breyer's "unusual" public concern standard,
or some lesser standard, will prevail. The media most obviously
faces risk for disclosure of unlawfully intercepted gossip-flavored
conversations about private individuals and perhaps celebrities,
or about private matters such as family, children, sex and medical
treatment. Disclosing trade secrets also may be troublesome, even
where the media did not participate in, encourage, or even know
about the unlawful recording at issue.
Can Conversations Between Private Individuals
Be Published?
Apart from the content of the conversations,
courts may look to the role of the speakers whose conversations
are illegally intercepted. If Justice Breyer's concurrence becomes
the standard, more constitutional safety may be accorded the press
when the speakers are not private individuals or perhaps even celebrities,
but instead government figures or officials of some kind, especially
if - as in Bartnicki - they are entwined in a public controversy.
What Does It Mean For the Press To Impermissibly
"Participate In," Or "Encourage," An Illegal Interception?
None of the decisions hold that reporters
can actually intercept - or aid in the interception of - telephone
conversations without the consent of one of the speakers. At least
where the conversation concerns a matter of great public importance,
however, the press can publish recorded conversations so long as
they are truly uninvolved in any aspect of the unlawful interception.
It is uncertain when a reporter will be deemed to have been "indirectly"
involved in the recording, an unlawful circumstance that may be
triggered if the reporter merely knows the interception is occurring
and has contact with the third party making the recordings.
Consequently, the safest situation for a
journalist is one in which he or she is an innocent and unexpected
recipient of an illegally recorded conversation. Bartnicki
makes clear that reporters will not face liability even if they
know, or should know, that the tape was illegally intercepted. Potential
liability may exist, however, where a reporter "encourages" an illegal
interception, which a future court may find has occurred simply
because the reporter had discussions with the interceptor before
all the conversations were taped, and perhaps provided guidance
about the taping itself. In short, the uncertainty in the case law
mandates that reporters be extremely cautious when they become aware
that others are intercepting telephone conversations in violation
of state and/or federal law. Few cases will readily fit the Bartnicki
paradigm of a truly "innocent" press.
Government
Discrimination Aimed at Individual Journalists or News Organizations
The governor of Hawaii reportedly complained
about a reporter's coverage and got her fired. During the recent
Seattle newspaper strike, the mayor declined to speak with editors
and reporters from the city's two dailies. In Tennessee, a city
refused to place a hyperlink from its official website to a tabloid
paper, even though the website linked to other organizations. In
May 2001, the mayor of Cleveland held a press conference announcing
he would not seek re-election, but prohibited any reporter or photographer
from that city's daily newspaper from attending.
In all these situations, the reporters and
media organizations contend they were discriminated against because
of their views and were denied access afforded to other media organizations.
The Cleveland case is a classic example.1
Mayor Michael R. White complained that the Cleveland Plain-Dealer
was not giving his administration fair coverage. He complained,
for example, about the newspaper's publishing only a photograph
and caption about a groundbreaking ceremony of a new airport runway,
and filing freedom of information requests with his office, but
not the office of other county politicians. Thus, during a press
conference held in a public elementary school, where the mayor announced
he would not seek re-election, the mayor's staff escorted out the
Plain-Dealer's reporter and photographer. When the newspaper
attempted to send other reporters instead, they too were escorted
out. The local chapter of the Society of Professional Journalists
released a statement saying the mayor acted "irresponsibly and unconscionably."
The Plain-Dealer so far has declined to take legal action.
The Supreme Court has never decided whether reporters have a constitutional
right to equal access. In general, courts agree that if a government
agency holds a general press conference, it must be open to all
members of the media. However, it is an open question if reporters
have equal access rights to a "particular interview, exclusive story,
or off the record statement."2
Public employees cannot treat some news
organizations and media personnel different from others. Particularly
when the discrimination is based on viewpoint, courts have prevented
government officials from maintaining official policies of speaking
to only certain reporters or providing access to one media organization
over another. As the First Circuit noted, "The danger in granting
favorable treatment to certain members of the media is obvious:
it allows the government to influence the type of substantive media
coverage that public events will receive. Such a practice is unquestionably
at odds with the First Amendment." Anderson v. Cryovac, Inc.
805 F.2d 1, 9 (1st Cir. 1986). Nonetheless, not every reporter
will be dealt with equally or have the same amount of access; government
officials give official and unofficial exclusive interviews, reports
and communications in the regular course of business.
What courts have rejected is any discrimination
against a news organization or a specific reporter for viewpoint
reasons. Such discrimination is not "content neutral" and cuts against
long-recognized protection.
The courts have found violations of the
First Amendment where a mayor excluded a particular newspapers'
reporters from major press conferences to which the press generally
was invited,3
where a district attorney required reporters for a disfavored newspaper
to obtain advance appointments not required of other reporters,4
where a racetrack reporter was forbidden to carry a camera into
paddock areas otherwise open to the press,5
where a sheriff directed his staff not to respond to questions from
reporters of the plaintiff newspaper unless they were submitted
in writing,6
where a district court provided access to certain discovery materials
to one newspaper but not to competing newspapers,7
and where only one television network was excluded from primary
election events.8
One of the most recent related decisions came in Putnam Pit,
Inc. v. Cookeville, 221 F.3d 834 (6th Cir. 2000). A website
operator brought suit against a small Tennessee city and its city
manager for, in part, a violation of its First Amendment rights
because the town refused to place a link on the official city website
to the plaintiff's website, even though the city's official website
linked to other for-profit and nonprofit websites. The plaintiff's
website was highly critical of the city and its political officials,
and the city declined to link to the news website, even though the
city had never before declined a request to link. Instead, the city
drafted a policy requiring all links "promote the city's tourism,
industry, and economic welfare." The Sixth Circuit found that the
city did have legitimate interest in limiting the types of weblinks,
but because the policy apparently was established in response to
the Putnam Pit's request, there was a question of fact as
to whether the city unconstitutionally discriminated based on viewpoint.
Thus, the lower court's grant of summary judgment was improper.
While the Sixth Circuit did not make any sweeping pronouncements
regarding government discrimination in general, it did continue
to recognize long-established precedent requiring governments to
treat all media outlets equally.
This protection extends to quasi-government
agencies as well. In the late 1980s, officials at Pacific Gas &
Electric - the monopoly electricity provider for most of Northern
California - refused to recognize an individual reporter no matter
what trade publication she worked for, alleging that she had a conflict
of interest due to her prior work with an environmental group. A
California state court held that PG&E was a government-authorized
monopoly and a state-actor for First Amendment purposes. "Because
its monopolistic position extends over a large and economically
vital geographical area, PG&E wields considerable power over the
press covering its activities. Without access to PG&E as a news
source, a journalist in this field is severely handicapped in the
competitive search for news. Its power was dramatically illustrated
by the present case. [The plaintiff reporter] lost two successive
jobs covering the public utilities industry on the west coast after
[a] PG&E executive, ..., informed her editors that she was persona
non grata with corporate management." Savage v. Pacific Gas &
Electric Co., 21 Cal.App.4th 434, 454 (1993). The court recognized,
"Unquestionably, PG&E has wide latitude to choose the forum, manner,
and extent of its disclosures to individual journalists. But the
facts of the present case do not present any issue of reconciling
PG&E's own First Amendment rights with the public interest in free
debate. PG&E's action in effectively blacklisting appellant served
no legitimate First Amendment purpose." Id. at 455.
In addition to a pure First Amendment analysis,
courts also have examined government discrimination against specific
media outlets or reporters under an equal protec-tion lens.
In Quad-City Community News Service,
Inc. v. Jebens, 334 F. Supp. 8 (S.D.Iowa 1971), city officials
had denied reporters for an underground newspaper access to police
files generally available to other reporters. After finding that
the action violated the First Amendment, the court addressed the
equal protection issue: "No showing merely of a rational relationship
to some colorable state interest suffices to justify a classification
between media permitted access to the reports and others which are
not so permitted. Any classification which serves to penalize or
restrain the exercise of a First Amendment right, unless shown to
be necessary to promote a compelling governmental interest is unconstitutional."
Id. at 15.
However, some courts have allowed government
regulations that discriminated against a single reporter's ability
to get additional access or information. The Fourth Circuit examined
this distinction in Snyder v. Ringgold, 133 F.3d 917, 1998
WL 13528, *4 (4th Cir., Jan. 15, 1998), on remand to 40 F.Supp.2d
714 (D. Md. 1999). In Snyder, a public information officer
for the Baltimore City Police Department refused to talk with a
specific reporter and complained to her editor about her lack of
objectivity. The PIO did grant interviews and access to the reporter's
newspaper and television station, however. The reporter brought
suit against the PIO, alleging First and Fourteenth Amendment violations.
The Snyder court found that the police department could not
"selective[ly] restrict[ ]
plaintiff's access to information freely
given to other members of the news media" but the court noted, "no
reporter has a right to access to a particular interview, exclusive
story, or off the record statement." While declining to determine
if a "constitutional right to equal access for members of the press"
exists, "extending the right to encompass preferential treatment
would completely change the longstanding relationship and understanding
between journalists and public officials." Therefore, because the
PIO only excluded the plaintiff reporter from exclusive interviews
and special access, these discriminatory actions were upheld.
It is uncertain how this distinction would
be treated in other courts, given the general principle of "equal
access." It will be interesting to see whether Snyder ultimately
is regarded as a guide or an aberration.
FOOTNOTES:
1
See Felicity Barringer, Disliking Coverage, Cleveland's
Mayor Retaliates, N.Y. Times, May 28, 2001 at C2.
2
Snyder v. Ringgold, 40 F. Supp.2d 714 (D.Md.
1999).
3
Borreca v. Fasi, 369 F.Supp. 906 (D. Hawaii 1974).
4
Southwestern Newspapers Corp. v. Curtis, 584 S.W.2d 362 (Tex. App. 1979).
5
Stevens v. New York Racing Ass'n., Inc., 665 F.Supp. 164 (E.D.N.Y. 1987).
6
Times-Picayune Publishing Corp. v. Lee, 1988 WL 36491, 15 Med.L.Rptr. 1713, 1719
(E.D. La. 1988).
7
Anderson, 805 F.2d at 9.
8
American Broadcasting Companies v. Cuomo,
570 F.2d 1080, 1083 (2d Cir.1977).
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