The First Amendment Rocks!

Situation- You’re a reporter and you’ve just been assigned to write a story about drug use. While, with a story like that, the best way to tell it would be from the words of those who use drugs and know what they are talking about. So you go find said users, interview them and, after requested, tell them that they will remain annoymous in the story.

Soon after the story is published, you are approached by law enforcement agents who want to know the names of the people you interviewed for your story. eventually you get a subpoena to come to court, where you are ordered to give the names of your sources even though you promised them that their names would not be made public. What would you do? Do you have the right to protect the names of your sources even though it people who are breaking the law that you are protecting?

Legal Background- Branzburg v. Hayes (1972). Paul Branzburg was a reporter for the Louisville Courier-Journal. He wrote two articles that concerning drug use in Kentucky and during his research for the articles, he witness and interview several people who used marijuana. The sources all requested that not to be idenified. However, the articles soon reached the police, and soon Branzburg received a subpoena to appear before a grand jury. He was ordered to reveal the names, but refused. He citied privilege under the Press Clause, but was held in contempt for refusing to name the names.

The case went all the way to the Supreme Court. There the argument continued to be hotly debated until the Court finally made a decision. They voted 5-4 against the reporter and the existence of reporter privilege in the First Amendment. It was stated that this would have given newspaper writers testimonial privilege that other citizens did not have. However, the court also stated that the government “must convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.”

Justice Powell, who sided with the majority, expressed that the decision had a “limited nature.” He said “…there is a privilege analogous to evidentiary one, which courts should recongnize and apply on case by case to protect confidential information. My vote turned on my conclusion… that we should not establish a constitutional privilege.”

Since then several lower courts have interpreted those words as indicating that reporter privilege does exist, but must be decided on each individual case. This means that in the specific case of Branzburg, there wasn’t enough for the privilege to apply, but it could apply to other cases with different circumstances.

Links-

1) http://www.nytimes.com/2007/10/07/weekinreview/07liptak.html?_r=1&ex=1349496000&en=f6d6ce9bcf534225&ei=5088&partner=rssnyt&emc=rss&oref=slogin

2) http://scholar.google.com/scholar_case?case=11598860258825518787&hl=en&as_sdt=2&as_vis=1&oi=scholarr

Questions-

1) How do you think “Branzburg” would have been ruled today? The views toward drugs like marijuana have changed somewhat, with the access to medical weed.

2) While the court decided against reporter privilege. they left it somewhat open-ended. What cases since “Branzburg” have decided there is such a privilege and which ones have decided that there isn’t?

3) Do you think there are certain crimes and actions that reporters can cover and keep sources secret with the privilege? Are there cases that have defined what crimes, such as drug use, reporters can hold back their sources names and other crimes defined as not, such as more serious crimes like robbery or even murder?

Imagine you are covering a major story in which information was leaked to the public.
The court then issues a court order for you to reveal what you knew about the
incident, including the identity or your sources. Would you give the court the
names or stay true to protecting your source’s identity? If you decided to
protect the identities, how far would you go to do so?

This exact situation happened to Judith Miller, who at the time was a reporter for The New
York Times. Miller was investigated after the identity of a CIA agent was announced
and was ordered by the court to reveal her sources. She refused to do so and
was citied with contempt of court. Miller tried to appeal her case to the
Supreme Court, but they refused and allowed for the lower appeals court
decision to stand. This left Miller’s fate in the judge’s hands as to whether
she would be sentenced to prison or not.
Miller continued to keep the identity of her source confidential causing
her to be sentenced to prison until she testified or the grand jury’s term
expired in October 2005. After spending 85 days in prison, Miller finally
testified and revealed the identity, but only after her source told her it was
ok to do so.

Miller kept the identity of her source a secret to protect
her source, as well as keep the free flow of information going. If sources were
concerned that their safety may be in jeopardy if they talk to reporters than
the news that we hear and read would be very different.

1. Do you think that the 1^st Amendment
   provides some protection to journalist not wanting to disclose the identities
   of their sources?
2. Should the court be able to put journalists in
   jail for not providing the identities of their sources?
3. If you were in Judith Miller’s situation, what
   would you have done? Why?

*Link to Miller v U.S. court case: http://www.jprof.com/law/inregjmiller21505opn.pdf

1. Situation

Since the popular nighttime reality show “Cops” began in 1989, television shows aiming to expose criminals in their “natural habitats” have become a mainstream in the world. Shows like “Cops,” “To Catch a Predator,” and even “Dog the Bounty Hunter” (yes, I said it) have made a success out of filming their arrests of criminals. Though, when it comes to search and seizure laws, there are certain rules the media must obey to avoid any lawsuits or legal violations.

As in the case of Tyler Hodson v. Al Roker Entertainment, there have been court cases in which someone has sued a media organization for violating privacy rights by filming a search and seizure without obtaining written consent.

So, should a media organization have to obtain written consent from the suspect filming him or her?

2. Legal Background

In the case Hodson v. Al Roker Entertainment, plaintiff Tyler Hodson issued a lawsuit against Al Roker Entertainment for unlawfully filming and broadcasting his arrest and a search and seizure of his home on January 29, 2009. Al Roker Entertainment was presenting a show for Spike TV titled “DEA,” in which a film crew would follow drug enforcement agents as they obtain warrants and make arrests.

The episode of "DEA" aired on January 29, 2009.

On January 29, the film crew documented the DEA while it was surveying Hodsons home. When the arrest was made, Al Roker Entertainment followed agents into the home and took footage of the search, seizure and arrest. Six pounds of marijuana was found at the plaintiff’s home that day when he was arrested for drug possession.

Al Roker Entertainment and the Spike TV network returned to the residence on March 9, 2009 to take additional footage and argued that the plaintiff (Hodson) provided written consent. Though, Hodson denied expressing written concent.

In this case, Hodson had a subpoena issued so he could obtain the audio and video clips of his segment because he was involved in the criminal drug case that stemmed from his arrest on “DEA.” Hodson and his attorney believed that the footage could be beneficial to his defense in the possession case because it would show that he was wrongfully arrested. Even though Spike TV and Al Roker Entertainment provided Hodson with a “four-minute excerpt” of the footage, Hodson issued an order requesting the rest of it and Al Roker Entertainment sought an order to squash the subpoena.

In the end, the New York State Supreme Court ruled in favor of Al Roker Entertainment due to the Shield Law. The plaintiff (Hodson) failed to show that the footage was completely beneficial to his criminal defense (that his defense could not be a success without it). Therefore, Al Roker Entertainment’s order to squash the subpoena was granted.

3. Questions

• Do you agree with the court’s decision? Should the court have reversed its decision and ordered Al Roker Entertainment to provide all of the footage from the show?
• Was it necessary for the plaintiff (Hodson) to have to prove that his criminal defense was in dire need of all of the footage?
• How would you feel if a film crew or news organization came into your house and filmed you being arrested or having your home searched? Do you feel it is constitutional?

1. Facts

This trial took place from February of 1972 till it was decided on June 29,1972. The facts of this case as listed on http://law2.umkc.edu/faculty/projects/ftrials/conlaw/Branzburg.html are that reporter Paul Branzburg witnessed the making and distributing of marijuana in Louisville, Kentucky of which he reported for the Courier-Journal. He used these unnamed sources in his articles promising them that he would keep their names anonymous. When the local authorities were made aware of this illegal activity the case was sent to a grand jury and they subpoenaed Branzburg in hopes that he would reveal his sources.

2. Legal Issue

The issue in this case is whether having newsmen testify in the court of law abridges the freedom of speech and press rights guaranteed in the first amendment. The court states that average citizen is not free to skip out on grand jury subpoenas and there is no legal issue that allows members of the press to do the same. The reporters argue that by forcing them to reveal their sources will hamper them as journalists by deterring potential future sources from giving them information under fear of their names being disclosed.

3. The Decision

The Supreme court ruled 5-4 against the existence of the free press clause in the constitution in allowing a member of the press to avoid subpoena based on his general reporting privileges. In regards to the claim that it will damage the way newsgathering is conducted in the future, the supreme court stated that for years the press has operated without any constitutional protection for its informants and has “flourished.”

4. The Analysis

The court in this case looked at whether the press was being hindered there rights of the First amendment that give them a freedom of speech and press. But in this case being that the story this reporter was writing was about illegal activity this information if kept anonymous a threat to the public. In regards to the claim that it will damage the way newsgathering is conducted in the future, the supreme court stated that for years the press has operated without any constitutional protection for its informants and has “flourished.”

5. Questions

1. Does the reporter have the right to keep his sources anonymous?

2. Why did the court feel that Branzburg should have to testify in court?

3. Does this ruling have an effect on how journalists gather their news?

 A hypothetical situation

 Imagine spending almost six months in jail away from family, friends and loved ones, as punishment for reporting and refusing to give your information to the government. Now see this as a choice, something that you intentionally decide to do in order to uphold a specific right of people all over the nation. You are the source that the government needs to solve a murder case. Instantly, you find yourself becoming part of your work instead of observing it. Instead of advancing as a journalist, you must face the decision of handing over your notes or spending time in the slammer. Quickly, the choice becomes a reflection of not only your character, but also your values and commitment to people all over the nation.  

  The Legal Background

Vanessa Leggett on the cover of The News Media and the Law Magazine. Photo from rcfp.org.

 For a writer named Vanessa Leggett, this situation became a reality.  In the case Leggett v. U.S., Leggett, an aspiring “true crime” writer, was held in civil contempt as a non-complying witness. Leggett had collected notes and information concerning the murder case of Doris Angleton of Houston by her husband Robert and his brother Roger. Leggett wanted to write about the situation, so she did interviews of the people involved for her own use. The government decided they wanted the information she obtained, because they hoped it would give them enough information to solve the murder mystery. When she refused to give up her notes, she was put in jail for six months. She was sent to jail on July 19, 2001 and was not let out until January 4, 2002, when the grand jury’s investigation of the Angleton family had ended without any indictments.

 This case has brought up many questions by journalists and groups such as the Reporters Committee for Freedom of the Press. Should journalists be provided shield laws, or laws which protect journalists from revealing their sources? While there are shield laws in certain states, not every state is required to have them. By many, this case is seen as a step backwards for reporters’ privileges and could be seen as a situation that would cause a chilling effect.  Also, the court did not investigate the actions of the U.S. Department of Justice, or weigh the First Amendment rights against the government’s want for Leggett’s work.

1. If you were on the jury for Leggett’s case, what would you say?
2. What would you do if you were reporting and the government asked you for your notes? Would you face jail time to protect your sources?
3. What are some arguments in support of the government obtaining journalists’ notes?

1. Facts of Case
The U.S. Supreme Court case of U.S. Department of Justice v. Reporter’s Committee for Freedom of the Press (1989) started in the District Court but was then taken to the Court of Appeals for the District of Columbia Circuit and finally to the Supreme Court where a decision was made March 22, 1989. A CBS news correspondent and the Reporters Committee for Freedom of the Press filed suit in the District Court seeking the rap-sheet for a man named Charles Medico and his three brothers as it contained “matters of public record.” Medico’s family company had previously been identified as a legitimate business dominated by organized crime figures and had allegedly done work with a corrupt congressman. Respondents said that any information regarding “a record of bribery, embezzlement or other financial crime” would potentially be a matter of special public interest.
They decided to sue after the FBI denied their requests under the Freedom of Information Act. This information would have provided criminal identification records on millions of people and descriptive information as well as a history of arrests, charges, convictions and incarcerations. It was argued that Medico’s record of financial crimes would be of public interest. The District Court ruled that the rap-sheet was protected by Exemption 7(C) of FOIA. It excludes information compiled for law enforcement purposes where production of these records could be expected to cause an unwarranted invasion of personal privacy. When it was taken to The Court of Appeals, it was reversed and ruled that district courts should limit themselves to making factual determinations by finding whether the subject’s privacy is of bigger importance than the public interest because the original information is public record. When the case was heard again by the Supreme Court, the Court of Appeals ruling was then reversed as it was determined that the interest in people’s personal privacy will always be high and that it is protected by Exemption 7 (C).

2. Legal Issue
The legal issue is with this case is the idea of what makes information private versus what makes it public record. It deals with protecting privacy and restricting the distribution of government information. This case asks: Has a legitimate privacy interest of the subject in his rap-sheets faded because they appear on the public record? What types of government information should be public record?

3. Decision
The Supreme Court reversed the Court of Appeals ruling and stated that personal privacy must be protected and shouldn’t be considered public record. A request for law enforcement records or information about citizens can be seen as invading a person’s privacy. Requesting information must be for a purpose and must deal with finding official information about the government agency, for example, instead of information that is just stored by the government agency.

4. Analysis
The court made the decision that protects personal privacy. In the case at the Court of Appeals, public record took more precedent because it seemed to be what was in the public’s best interest, but at a closer look, the court examined the rights of the individual people this could affect and said the affects on these people could not be measured against the public interest. Their rights needed to be more consistently protected than that. This case helped to more clearly define what is and isn’t public record.

5. Questions
1. What is the significance of this case?

2. Do you think there are cases where public interest should be more important than personal privacy?

3. What are other restrictions of the government on information that would seem to be public record?

Wilson v. Layne (1999)

Situation:

Since early American history, issues of unlawful searches and seizures have been a common and rising trend. However, the Fourth Amendment protects Americans from these unlawful searches and seizures. But what happens when those searches and seizures become public on a greater scale? If a search is lawful, is it constitutional for a reporter to ride-along with the police officers on duty? Reporters are welcome to any information about arrests made through public record, but do they have the right to witness the arrest and report on it from a first-hand account?

Legal Background:

The U.S. Supreme Court granted certiorari to address the lower courts’ disputes. The Court decided that ride-along media coverage of an arrest in a private home violates the Fourth Amendment. In this case, officers invited a reporter and a photographer from the Washington Post to accompany them as they searched the home of Dominic Wilson. When police entered the home, they mistakenly tried to restrain Dominic’s father, Charles Wilson, as Dominic was not present during the intrusion. The reporter observed and the photographer took several photographs during this incident, none of which were published. Wilson claimed the media being inside his home violated his Fourth Amendment rights.

The courts agreed that the police officers should not have brought the media with them when issuing a warrant for the arrest of Dominic Wilson.

Questions:

1. Do you agree with the Court’s decision? Why or why not?

2. If the police restrained the right person, do you think the case would have turned out differently?

3. When is it appropriate for journalists to follow cops on ride-alongs? Or is it unconstitutional at all times?

Wilson V. Layne (1999)

1. Facts of Case

In the Supreme Court Case Wilson v. Layne , in May 24, 1999 the court looked at a case appealed in lower courts, thus sent to The United States Court of Appeals for the Fourth District.  In April of 1992, the Circuit Court for Montgomery County issued three arrest warrants for Dominic Wilson, one for each of his probation violations. He was classified under the authorities as a violent criminal and a danger. Around 6:35 a.m. deputy federal marshals and local sheriff deputies, a Washington Post reporter and cameraman went to make their arrest at Wilson’s parents household. They entered the household, though none of the warrants stated that the media could be present and enter the household. Dominic was not even there. Various pictures were taken of the confrontation between officers and the father of Dominic Wilson. Yet, the Washington Post did not publish the pictures taken at the Wilson’s home. Geraldine and her husband Charles sued the law enforcement officials in their personal capacities for money damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 38. The district agreed their Fourth Amendment Rights had been violated, but the district court denied a motion of summary judgment on their ruling of qualified immunity. At the Court of Appeals, the case was heard twice and the court declined on deciding whether law enforcement violated the Fourth Amendment. They stated that no court to this time had made a ruling or precedent was not clearly established, therefore granting qualified immunity.  Government officials have a shield of liability, holding plaintiff’s to a higher burden of proof.

2. Legal Issue

Were the officers’ actions in bringing the media to observe and record the attempted implementation of the arrest warrant a violation of the Fourth Amendment? Even if the law in 1992 was not clear in establishing laws of “media ride along”?

3. Decision

The Supreme Court ruled that while carrying out an arrest warrant in a private home, a “media ride along” does violate the Fourth Amendment. Yet, because the state of the law was not clearly established at the time, the officers are permitted to use the defense of qualified immunity.

4. Analysis

The court reached the decision that although Fourth Amendment rights were violated, due to the time and law uncertainty that law enforcement immune in Wilson v. Layne through applying basic principles of the Fourth Amendment to situations, like those similar to the case, where police entered a home under and arrest warrant to take a suspect into custody and noted that although common-law tradition during the time it was drafted was irrelevant to the present day circumstances of the case. Thus, the Supreme Court decided that an arrest warrant founded on probable cause completely carries with it a notion to allow law enforcement to enter where they feel a suspect may be present at. Making a decision peering at the court ruling in United States v. Lanier in 1997, the court stated that for the purposes of qualified immunity meaning, the official must be incredibly clear that a reasonable official would understand what he is doing is a violation of rights. Therefore, they are in question concerning what’s previously been deemed unlawful, which must be apparent. In this case, they found that at the time of the incident in Wilson v. Layne there was no judicial opinion present concerning “media ride-alongs”, furthermore, leading to the law enforcement’s immunity in this case.

5. Questions

1. Do you find this case, contrary to the court’s ruling and facts, in violation of the Fourth Amendment?

2. How has legal precedent changed since this case was decided in 1999?

3. Do you think news media should have access to the issuing of warrants to          violent criminals?

Millions of bits of information are collected and stored in files by the Federal Government.
This information includes divorce papers, mortgage documents and banking
history, as well as criminal arrest records.

You are a reporter for the BG News and you hear rumors that a professor has sexually
assaulted one of his students. You also hear rumors that this professor was
accused of this crime in the past. You send in a request for the rap sheet of
this professor. Your request is denied, saying that releasing this information
would be an assault on the professor’s right to privacy. Do you pursue the acquirement of the information in court, knowing that this information is very important to your fellow students?

If the government collects this information and the information is considered public
record who should have access to it and who should hold the keys to the access
of it?

Legal Background.

In Department of Justice v. Reporters Committee for Freedom
of the Press., reporters at CBS requested rap sheets from the FBI on four
brothers with known mob connections who received a number of defense contracts
from a corrupt Congressman. They requested these documents  under the Freedom of Information Act, which is supposed to respond by releasing public records to the press and the public unless the information falls under one of the nine exceptions.  The Department of Justice said it had no records of financial crimes on the four brothers, but refused to release and non-financial criminal history to the reporters. The reporters claimed this
information was in the public interest, and filed suit.

The Supreme Court sided with the Department of Justice
saying that the exemption used for the decision in the Freedom of Information
Act was created in order to protect a person’s privacy.

Questions.

1. Do you think all public records should be available to the public when requested? Why or why not?
2. Do you think government agencies should have to power to refuse to release requested documents? Could one of the reasons you gave fall under one of the FOIA’s exemptions?

3. Do you think that the government should keep mass collections of information about your personal life?

Someone asked in class about the Libby Sue Chumley case. She was the teen-aged girl pictured in an ad in TV Guide for an upcoming series on teen pregnancy. The ad said, “Guess what Lori found out today.” It then showed a diary that read, “Dear Diary: I found out today that I’m pregnant. What do I do now?” Below that was a photo of Chumley embracing a young man.

Chumley sued the publisher of TV Guide for falsely implying that she was pregnant. She said she was not pregnant and had never had sex with the young man in the photo or anyone else. She also said neither she nor anyone acting on her behalf had given permission for her photo to be used.

Chumley originally sued for invasion of privacy and libel. A lower court did not grant the privacy claim but did rule the publisher was liable for libel. (How’s that for a tongue-twister?) The Georgia Supreme Court upheld the libel claim. The publisher argued the ad was not “of and concerning” Chumley, since it didn’t use her name. The court didn’t accept that argument, saying the photo clearly identified her and implied it was her, even though the ad used the name “Lori.”

What I can’t tell from information I can find about the case is how Chumley’s photo came to be in the ad. Was she a model, or did someone simply take her photo on the street? It appears she was not a model. If you can find out, let me know!

If Chumley had been a model and had given permission for her photos to be used in ads, do you think she would have won her case?