CENTRAL EUROPEAN AND EURASIAN LAW INITIATIVE
LEGISLATIVE ASSISTANCE AND RESEARCH PROGRAM
CONCEPT PAPER ON MEDIA LAW
CEELI Concept Paper Series
November, 1996
Central European and Eurasian Law Initiative (CEELI)
740 15th St., N.W., Washington, D.C. 20005-1022
<http://www.abanet.org/ceeli>
Table of Contents
I. Introduction.............................................................................................................1
A. The Purposes of Free Expression ...............................................................2
1. Discovery of Truth ............................................................................2
2. Meaningful Self-Governance ............................................................3
3. The “Safety-Valve” Function............................................................3
4. Individual Self-Fulfillment................................................................4
B. Implications for the Protection of Freedom of Expression.........................4
II. Defamation Law ....................................................................................................6
A. The History and Principles of Media Libel Law in the United
States......................................................................................................6
1. Introduction .......................................................................................6
2. Libeling the Government ..................................................................7
3. Criminal Libel .................................................................................10
4. Civil Defamation .............................................................................11
5. The Elements of a Civil Libel Law Claim ......................................11
a) Epithets, Name-Calling, and Hyperbole ...............................12
b) Parody and Satire..................................................................12
c) Opinion .................................................................................13
d) Falsity ...................................................................................14
e) Fault ......................................................................................15
f) Remedies: Injunctions ...........................................................19
g) Remedies: Relationship of Injury to Damages.....................20
h) Of and Concerning................................................................21
B. Libel Law and Defamation .......................................................................22
1. The Elements of Defamation...........................................................23
a) Publication ............................................................................23
b) A Statement of Fact ..............................................................23
c) False ......................................................................................23
d) Refer to Plaintiff ...................................................................23
e) Reputational Injury ...............................................................24
f) Fault Must Be Shown ............................................................24
2. Defenses ..........................................................................................24
3. Additional Issues .............................................................................25
a) Republication ........................................................................25
b) Rumor and Gossip ................................................................25
c) Confrontation ........................................................................26
d) Corrections............................................................................26
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AMERICAN BAR ASSOCIATION—CENTRAL AND EAST EUROPEAN LAW INITIATIVE
e) Confidential Sources.............................................................26
f) Corporations ..........................................................................26
g) Implication............................................................................26
h) Defamation of Governmental Institutions and Persons........27
i) Criminal Defamation and Prior Restraint..............................27
C. Defamation in Civil Law Countries..........................................................27
1. Interests Protected ...........................................................................28
2. Classification of Defamation Actions .............................................28
3. Issues Common to All Defamation Actions....................................29
a) Jurisdiction of the Courts......................................................29
b) Issues Specific to Legislative Drafting.................................30
c) Issues Specific to Judicial Analysis ......................................30
4. Issues Specific to Actions for Protection of Individual
Reputation .................................................................................31
a) Standard of Liability .............................................................31
b) Defenses................................................................................32
c) Critical Opinion ....................................................................33
d) Protection of Confidential Sources.......................................33
e) Remedies...............................................................................34
5. Issues Specific to Protection of Individual Self-Esteem.................35
6. Issues Specific to Protection of State Officials, Institutions,
and Symbols..............................................................................35
7. Issues Specific to Protection of Identifiable Groups.......................36
III. The Media and National Security, Censorship, and Freedom of
Information ....................................................................................................37
A. Censorship and National Security ............................................................37
1. Introduction .....................................................................................37
2. Prior Restraints ................................................................................37
3. Subversive Advocacy and Seditious Libel......................................38
4. “Fighting Words” and Hostile Audiences.......................................38
5. Symbolic Conduct ...........................................................................39
6. Access to Public Places ...................................................................39
7. Access to Government Information ................................................40
8. The Role of the Judiciary ................................................................40
9. Conclusions .....................................................................................41
B. The Rights of the Media Versus National Security ..................................41
C. Media Law in Central and Eastern Europe: Availability of Public
Information and Regulation of New Media ........................................46
1. Access to Public Information ..........................................................46
CONCEPT PAPER ON MEDIA LAW
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2. Licensing and Regulation of Media ................................................48
3. New Media ......................................................................................50
IV. Protection of Journalists’ Sources .....................................................................53
A. Guaranteeing the Rights of Journalists to Gather News and to
Protect Confidential Sources and Information: Considerations
for Emerging Democracies..................................................................53
1. Introduction .....................................................................................53
2. Newsgathering Rights .....................................................................54
3. Protecting Confidential Sources and Information...........................59
4. Checklist of Considerations When Drafting Shield Laws ..............60
5. The Role of the Independent Judiciary ...........................................62
6. Conclusion.......................................................................................62
B. The Constitutional Basis for Newsgathering Protections .........................63
1. Protections for News Sources .........................................................64
2. Access to Information .....................................................................67
3. Conclusion.......................................................................................69
V. Problems in Governmental Ownership, Control, and Regulation of the
Press and Media.............................................................................................70
A. Economic Censorship of the Press and Media .........................................70
1. Pre-Publication Controls .................................................................72
a) Monopoly of Materials .........................................................72
b) Licenses for Publications......................................................72
c) Licenses for Employees ........................................................73
d) Requirement for Security or Performance Bond ..................74
e) Restrictive Labor Laws .........................................................74
f) Restrictions or Subsidies on Gathering Information.............74
g) Government Advertising ......................................................75
h) Financial Dimension of Other Laws.....................................75
2. Post-Publication Actions .................................................................78
a) Confiscation, Distribution Requirements, or Subsidies .......78
b) Legal Nuisance Suits ............................................................78
c) Fines and Taxes.....................................................................79
B. Governmental Control and Regulation of the Press and Media ...............79
1. Introduction .....................................................................................79
2. Official Ownership or Control of Press and Media Entities ...........80
3. Licensing of Press and Media Entities ............................................80
4. Allocation of Resources by the Government ..................................81
5. Regulation of the Press and Media..................................................81
6. Taxation of Press and Media Entities..............................................82
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VI. Conclusion .........................................................................................................82
Biographical Statements of Experts Contributing to the Concept Paper.Appendix A
International Covenant on Civil and Political Rights, Article 19............ Appendix B
European Convention for the Protection of Human Rights and
Fundamental Freedoms, Article 10 ............................................... Appendix C
New York Times Co. v. Sullivan, 376 U.S. 254 (1963)............................Appendix D
Uniform Correction or Clarification of Defamation Act ......................... Appendix E
Fair Report Statutes for the States of California and New York ..............Appendix F
Standards of Conduct and Technology Governing Electronic Media
and Still Photography Coverage of Judicial Proceedings for the
State of Florida ..............................................................................Appendix G
Newsgathering Privilege Statute for the State of Nevada .......................Appendix H
Newsgathering Privilege Statute for the State of New Jersey .................. Appendix I
Newsgathering Privilege Statute for the State of New York .................... Appendix J
Submission of the Australian Press Council to the New South Wales
Attorney-General, Responding to the New South Wales
Commission Report 75, Defamation .............................................Appendix K
Discussion Paper on Protecting Confidential Communications from
Disclosure in Court Proceedings, Submitted by the Australian
Press Council to the New South Wales Attorney-General............ Appendix L
Peter Krug, Civil Defamation Law and the Press in Russia: Private
and Public Interests, the 1995 Civil Code, and the Constitution,
Part One, 13 CARDOZO ARTS AND ENTERTAINMENT LAW
JOURNAL 847, and Part Two, 14 CARDOZO ARTS AND
ENTERTAINMENT LAW JOURNAL 297 ............................................ Appendix M
Concept Paper on Media Law
I.
Introduction
This concept paper explores a fundamental question facing modern societies: Is it possible to
protect and encourage the right of citizens and the mass media to engage in free-wheeling, robust,
and wide-open debate and criticism and at the same time to organize an effective form of
governmental self-rule? Is it possible for virtually unregulated speech to coexist with the goal of
stable self-government? Does it follow that, in order to be strong and effective, government must
necessarily suppress certain forms of speech? If so, to what extent, and under what circumstances,
may government suppress forms of speech?
The views expressed in this paper represent a cross-section of commentary on four principal
themes. Part II addresses defamation law, notably when and how the mass media can be held
responsible, and punished, for controversial, embarrassing, or inaccurate information about public
officials, public figures, or private individuals. Part III looks at the mass media and issues of national
security. Most relevant to this inquiry is the ability of the government to censor or to restrict access
to information. Part IV narrows the inquiry to how journalists may protect their sources. Part V
focuses on government ownership, control, and regulation of the mass media. These four themes
offer valuable insights into how the American people have approached the question of the role of
free expression in achieving self-government. Americans have invested this role with an unusual
importance.
In the United States, freedom of expression is guaranteed by the First Amendment to the
Constitution, which provides that “Congress shall make no law...abridging the freedom of speech, or
of the press, or the right of the people peaceably to assemble...” It is from this short statement of
principle that the legal framework for protecting expression has been built.
This American experiment in securing to its citizens and the press the ability to speak freely
without fear of retribution as a constitutional right has succeeded for over two hundred years. The
Constitution is the supreme law of the land and can be amended only with great difficulty. The fact
that the words protecting free expression appear in this controlling document shows the fundamental
importance that Americans attach to this freedom.
The idea of “free expression” embraces within it a collection of individual rights, each of
which is an essential component of the freedom of expression. In the American canon, these rights
include:
•
the right of an individual to hold a set of beliefs;
•
the right to communicate freely on any subject;
•
the right to remain silent;
•
the right to receive communications from others;
•
the right to solicit and obtain information from all sources; and
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AMERICAN BAR ASSOCIATION—CENTRAL AND EAST EUROPEAN LAW INITIATIVE
•
the right to associate with others.
Each of these rights flows from the protection of “expression.” In various contexts, each
must be recognized and protected as a distinct right protected by general freedom of expression.
A.
The Purposes of Free Expression
In evaluating the wisdom of any proposed definition of protected expression, or any effort to
regulate these derivative rights, it is useful to start from a framework that identifies the goals or
values to society that flow from protecting expression. Many have eloquently stated the virtues and
rewards to a society that fosters the right of individual expression. Generally, at least four distinct
values are advanced by protecting free expression: (1) promoting a process for the discovery of
truth, (2) enabling a society to engage in meaningful self-governance, (3) creating a process for the
non-violent resolution of disputes, and (4) promoting the individual self-fulfillment of every member
of society.
1.
Discovery of Truth
Freedom of expression is essential to the advancement of knowledge and the discovery of
truth. Anyone who seeks knowledge and truth must be free to hear all sides of a question, to consider
all alternatives, to test his or her judgment by exposing it to opposition, and to make full use of
different minds in the community. As John Milton wrote in his AEROPAGITICA: “When there is much
desire to learn, there of necessity will be much arguing, much writing, many opinions; for opinion in
good men is but knowledge in the making.”1
Sometimes referred to as the functioning of a “marketplace of ideas,” the discovery of truth
requires the freedom to challenge even the most cherished beliefs. The legal system should protect
the free exchange of all ideas, allowing uninhibited, robust, and wide-open debate. History has
taught that “the best test of truth is the power of the thought to get itself accepted in the competition
of the market.”2
Thus, the expression of ideas and opinions must be free from suppression by government no
matter how certainly true a generally accepted opinion seems. Even the most widely held truths—
like the ancient belief that the world was flat or that the sun revolved around the earth—may turn out
to be erroneous. John Stuart Mill stated it eloquently:
[T]he peculiar evil of silencing the expression of an opinion is that it is
robbing the human race: posterity as well as the existing generation; those who
dissent from the opinion, still more than those who hold it. If the opinion is right,
they are deprived of the opportunity of exchanging error for truth; if wrong, they lose
what is almost as great a benefit, the clearer perception and livelier impression of
truth, produced by its collision with error.
1
John Milton, AEROPAGITICA: A SPEECH FOR THE LIBERTY OF UNLICENSED PRINTING (1644).
2
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
CONCEPT PAPER ON MEDIA LAW
2.
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Meaningful Self-Governance
Freedom of expression is also an essential prerequisite to meaningful participation by
citizens in decision-making. A self-governing society can make choices through a democratic
process only if its citizens have access to relevant information.
Freedom of expression in a democratic society is also crucial in uncovering and protecting
against abuses by public officials. Free speech, a free press, and the freedom to assemble can be
major forces in checking the potential abuse of power by elected representatives.3 Correspondingly,
it serves to make public officials more accountable to the public, more responsible, and less prone to
aggrandize power unlawfully.
For this reason, any attempt by the government to prevent a publication or a broadcast faces
the highest possible level of scrutiny. In 1931, the United States Supreme Court wrote, “[t]he fact
that for approximately one hundred and fifty years there has been almost an entire absence of
attempts to impose previous restraints upon publications relating to the malfeasance of public
officers is significant of the deep-seated conviction that such restraints would violate constitutional
right[s].”4
Forty years later, the United States Supreme Court reaffirmed this belief in even stronger
language. “Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic
errors. Open debate and discussion of public issues are vital to our national health.”5 The First
Amendment stands as a concrete wall against the possibility of government censorship of ideas,
beliefs, and especially criticisms of the state and its officials.
3.
The “Safety-Valve” Function
Freedom of expression also lends stability to society by providing an outlet for citizens to
vent frustration, outrage, and disaffection. History has taught that individuals will be less inclined to
resort to violence to achieve their objectives if they are free to express themselves through speech
advocating their ends. As Professor Thomas Emerson of the Yale Law School explained:
This follows because suppression of discussion makes a rational judgment
impossible, substituting force for reason; because suppression promotes inflexibility
and stultification, preventing society from adjusting to changing circumstances or
developing new ideas; and because suppression conceals the real problems
confronting a society. At the same time the process of open discussion promotes
greater cohesion in a society because people are more ready to accept decisions that
go against them if they have a part in the decision making process.... Freedom of
expression thus provides a framework in which the conflict necessary to the progress
3
Blasi, The Checking Value in First Amendment Theory, 1977 American Bar Foundation
Research Journal 521.
4
Near v. Minnesota, 283 U.S. 697, 718 (1931).
5
New York Times Co. v. United States, 403 U.S. 713, 724 (1971) (Douglas, J., concurring).
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of society can take place without destroying the society. It is an essential mechanism
for maintaining the balance between stability and change.6
Another important objective of the system of freedom of expression, therefore, is to provide
an instrument for facilitating orderly change. As once described by Jeremy Bentham in FRAGMENT
ON GOVERNMENT, a key difference between a free and a despotic government is “the security with
which malcontents may communicate their sentiments, concert their plans, and practice every mode
of opposition short of actual revolt, before the executive power can be legally justified in disturbing
them.”
The doctrine of free speech is so revered in the United States that even radical forms of
expression are guaranteed. In 1989, the Supreme Court ruled that the burning of the American flag is
protected expression under the First Amendment. Justice William Brennan wrote, “[i]f there is a
bedrock principle underlying the First Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself offensive or disagreeable.”7
Another member of the Supreme Court explained, “[i]t is poignant but fundamental that the flag
protects those who hold it in contempt.”8
4.
Individual Self-Fulfillment
Finally, freedom of expression is critical as a means of assuring that every member of society
reaches his or her maximum potential. Again, Professor Emerson stated it succinctly:
The proper end of man is the realization of his character and potentialities as
a human being. For the achievement of this self-realization, the mind must be free.
Hence, suppression of belief, opinion, or other expression is an affront to the dignity
of man, a negation of man’s essential nature.
The Supreme Court has noted, “[i]f there is any fixed star in our constitutional constellation,
it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion.”9 Governmental censorship of expression is inimical to
individual self-worth and self-fulfillment.
B.
Implications for the Protection of Freedom of Expression
If these are the true objectives of a system of free expression, the goals compel certain
implications for the legal system created to protect that freedom. First, to enable the goals of free
expression to be met, expression must receive optimum protection against infringement by the
government even where the expression conflicts with other social interests.10 Those seeking to limit
6
THOMAS I. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1970).
7
Texas v. Johnson, 491 U.S. 397, 414 (1989).
8
Texas v. Johnson, at 421 (Kennedy, J., concurring).
9
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).
10
EMERSON at 12.
CONCEPT PAPER ON MEDIA LAW
5
speech should bear the heavy burden of justifying the restraint, and no limitation should be allowed
unless compelling evidence of an immediate threat to some equally valuable right is at stake. To
allow expression to be restrained on any lesser showing will defeat the ability of expression to aid in
the search for truth, reach democratic decisions, minimize violent tendencies, and maximize human
potential.
Freedom of expression is the right of all members of society and must apply not only to
those who support the government but also to those who do not. Again, the Supreme Court: “The
vitality of civil and political institutions in our society depends on free discussion.... The right to
speak freely and promote diversity of ideas and programs is therefore one of the chief distinctions
that sets us apart from totalitarian regimes.”11
Moreover, any limitation on expression should be based on “content-neutral” criteria. No
suggestion of policy should be denied a hearing because it is on one side of the issue rather than
another. The Supreme Court has ruled, “[u]nder the First Amendment, there is no such thing as a
false idea. However pernicious an opinion may seem, we depend for its correction not on the
conscience of judges and juries, but on the competition of other ideas.”12
This means that, while citizens may, on sufficient grounds, be limited in the time, place, or
manner of their speaking, citizens may not be barred from speaking because their views are thought
to be false or dangerous. This is most relevant when society or the government may be considering
the censorship of unpopular ideas. “[I]f there is any principle of the Constitution that more
imperatively calls for attachment than any other, it is the principle of free thought—not free thought
for those who agree with us, but freedom for the thought that we hate.”13 Thomas Paine feared that
censorship today might lead to even greater restrictions tomorrow: “He that would make his own
liberty secure, must guard even his enemy from oppression, for if he violates this duty, he establishes
a precedent that will reach himself.”
The sections of the concept paper that follow are testimony to a legal system that has
evolved to realize the goals of truth-seeking, self-governance, true stability, and individual selffulfillment. The paper describes a system of laws that fosters coexistence between free expression
and self-governance. The workings of that system suggest that the reality of self-governance is
measured by the extent that debate and criticism remain unregulated.
11
Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
12
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974).
13
United States v. Schwimmer, 279 U.S. 644, 654-55 (1929) (Holmes, J., dissenting).
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II.
Defamation Law
A.
The History and Principles of Media Libel Law in the United
States
1.
Introduction
The legal rules that govern a nation are often derived in a number of manners. There may be
an overriding constitution, setting out in broad strokes the most fundamental of norms by which the
society has chosen to rule itself; statutes; administrative agency rules and regulations; and common
law, that product of judges and courts that often defines the law even when the initial source is a
statute or a constitution. The United States legal system, of course, uses all of these means of
defining the legal obligations of its citizens and its government and officials. To complicate matters,
each state has its own constitution, statutes, administrative body of law, and common law. In each
system, state or federal, the constitution is dominant. No statute, administrative rule or regulation, or
judicial decision can stand in the face of a contrary position in the constitution. Shared by the
citizens of each of the states is the overarching federal Constitution and, for purposes of this
discussion, the First Amendment to that Constitution. It provides a unifying set of principles and
guidelines to which the legal systems of each of the states must conform.
Because “the law” can and is derived from so many sources in America, this paper tries to
set out what are believed to be the most fundamental objectives and options that exist in the United
States for various issues that arise in defamation law. Until 1964, libel law in the United States, as in
England, was governed by common law. Some states had statutes as well that laid out the elements
of libel law. In 1964, the Supreme Court of the United States imposed limitations on the ability of
the states to allow libel claims, finding that the First Amendment of the Constitution of the United
States applied to libel law.14 Prior to 1964, the nation’s highest court had not addressed libel law.
Thus, the discussion below often notes the common law and the modifications imposed by the
constitutionalization of libel law.
Libel law, now no less than other speech-related issues, has developed under the arch of the
First Amendment and generalized notions of free speech and its values. Those values, those reasons
why a society might choose to adopt free speech principles, generally divide into two categories: (1)
self-fulfillment and development of the individual, i.e., the individual’s dignity within a society, and
(2) societal benefits, i.e., the protection and development of the society. Interpretations of
constitutional principles and the common law themselves develop consistent with the society’s
rationales for issues such as free expression.
The notion of self-fulfillment has less to do with the media and the rights afforded the
institutional press than it does the individual citizen and his or her rights vis-à-vis the government
and his or her fellow citizens. Of greater import when looking at how the media is treated under free
expression principles is the rational of societal benefits from free speech. These arguments in favor
of free speech as a societal benefit include:
14
New York Times Co. v. Sullivan, 376 U.S. 254 (1964), included in Appendix D.
CONCEPT PAPER ON MEDIA LAW
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(1) The marketplace of ideas: Individuals are better able to function as citizens if they are
exposed to a wide range of views, and “the best test of truth is the power of the thought to
get itself accepted in the competition of the market.”15
(2) Promotion of a stable and adaptable society: Suppression of speech creates not only an
inflexible society but one in which repression has replaced the logical debate, discussion, and
development of new ideas. Coercion does not change views. Coercion makes views more
rigid. Frustration and fragmentation develop as ideas move underground. Free expression
allows change of perspectives and views within a society to develop more slowly and
naturally, out in the open, and with extensive debate.
(3) Self-governance: If the people, and not the institutional government, are sovereign, then
free speech is necessary in order to allow the sovereign citizenry to govern themselves. The
United States system, and particularly the Constitution, sets up limits on the institutional
government primarily to prevent it from imposing on the true sovereigns: the individual
citizens. Under this analysis some legal philosophers have concluded that speech regarding
government and political and social issues should receive virtually total protection, while
speech about private matters should be subject to lesser protections.
These theories on free expression play out in different manners in the various aspects of
media law in the United States. Some, of course, are derived from or may be found as well in the
laws of England and Commonwealth countries, among other nations. The theories are mentioned
here, and only in the most summary and headline of fashion, because they are critical to
understanding how United States law makes choices within the body of libel laws. In determining
how a nation’s laws are going to develop, the philosophical basis—the assumptions (even in their
most elemental stages of development) about the goals of free expression—undoubtedly always play
a critical role. As the above demonstrates, a society need not depend upon only one theory.
2.
Libeling the Government
The first issue is whether or not the law of libel authorizes a claim against an individual or
publication as a result of its criticism of the government or one of the government’s agencies or
offices. The laws of the United States have rejected such a cause of action, both on a civil and
criminal basis.16 Moreover, as noted below, no official or employee of the government can sue for
libel based upon statements that are, in essence, criticism of the action of a governmental body or
function.17 This principle—that the government as an institution may be subject to unfettered
criticism by the citizenry—is one of the most basic and fundamental aspects of American libel law.
The notion of seditious libel, criminal libel against the government, while in existence in
England and in the United States prior to the Revolutionary War, did not survive the independence
of the states from the English Crown and the adoption of the Constitution and the First Amendment.
15
Abrams v. United States, at 630 (Holmes, J., dissenting).
16
New York Times Co. v. Sullivan, at 273 et seq.
17
New York Times Co. v. Sullivan, at 273 et seq.
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Seditious libel was a crime used, if not created, by the court of the Star Chamber as a means
to protect the elite. De Scandalum Magnatum, a 1275 law, jailed “gossipers” who disparaged the
king and his lords in order to induce them to lead the court to “the first author of the tale.”18 Trials
for seditious libel were dangerously efficient—publication was the only element and truth
aggravated rather than avoided the punishment.
Transplanted to colonial America, seditious libel took root, with critics of government
punished by act of court or legislature throughout the 17th and 18th centuries. Following the
American Revolution, seditious libel was still law in the state courts, but the press largely ignored its
existence, until Congress passed the Sedition Act of 1798, making criticism of the federal
government a crime.
Born out of the bitter political disputes between Federalists and Republicans in the early
years of American political life, the act punished “false, scandalous and malicious” political
criticism.19 The Federalists, who at the time controlled the presidency and Congress, believed that
the law could keep Republican criticism at bay. In its brief existence, the law expired by its terms in
1801, fourteen men were tried for the crime, including the editors and owners of the leading
Republican newspapers.
As a political tactic, however, the law was a dismal failure. It was not a Supreme Court
decision but rather the weight of public opinion that brought the law’s life to an end. Public outrage
resulted in the Federalist loss of control of both the presidency and Congress in the election of 1800.
Upon assuming the presidency, Thomas Jefferson pardoned all those charged with the crime.
Commentators have noted that the law “made large numbers of Americans appreciate the
importance of free speech and freedom of the press in a democracy.”20 As far as the public was
concerned, seditious libel was simply “inconsistent with the American constitutional system.”21
In fact, it was not until 1964, in New York Times Co. v. Sullivan, that the Supreme Court
finally declared seditious libel as anathema. It was the “court of history,” wrote Justice Brennan,
which had declared the Sedition Act unconstitutional. The fact that the fines imposed were repaid by
the government, Jefferson’s pardons, and the assumptions of past Supreme Court justices all
reflected that seditious libel was simply “inconsistent with the First Amendment.”22
To permit the government, or its agencies, to sue over criticism is to foreclose the possibility
of having a free and open society. Under such a system, one critic noted, “political discussion
exist[s] by sufferance of the government.”23 In the view of James Madison, allowing the government
18
See BRUCE W. SANFORD, LIBEL AND PRIVACY 25 (2d ed. 1993).
19
See ANTHONY LEWIS, MAKE NO LAW 58 (1991).
20
ANTHONY LEWIS, AT 65.
21
ANTHONY LEWIS, AT 65.
22
New York Times Co. v. Sullivan, at 276.
23
JAMES MORTON SMITH, FREEDOM’S FETTERS: THE ALIEN AND SEDITION LAWS AND AMERICAN
CIVIL LIBERTIES 425 (1956).
CONCEPT PAPER ON MEDIA LAW
9
redress “ought to produce universal alarm, because it is levelled against the right of freely examining
public characters and measures, and of free communication among the people thereon, which has
ever been justly deemed the only effectual guardian of every other right.”24
In a democracy, “the censorial power is in the people over the Government, and not in the
Government over the people,”25 as it is “the people, not the government, [who] possess the
sovereignty.”26 Political speech is at the core of First Amendment protection, as Justice Brandeis
wrote:
Those who won our independence believed ... that public discussion is a
political duty; and that this should be a fundamental principle of the American
government. They recognized the risks to which all human institutions are subject.
But they knew that order cannot be secured merely through fear of punishment for its
infraction; that it is hazardous to discourage thought, hope and imagination; that fear
breeds hate; that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed remedies; and that
the fitting remedy for evil counsels is good ones. Believing in the power of reason as
applied through public discussion, they eschewed silence coerced by law—the
argument of force in its worst form. Recognizing the occasional tyrannies of
governing majorities, they amended the Constitution so that free speech and
assembly should be guaranteed.27
Indeed, as one commentator has written:
The concept of seditious libel strikes at the very heart of democracy. Political
freedom ends when government can use its powers and its courts to silence its critics.
My point is not the tepid one that there should be leeway for criticism of the
government. It is rather that defamation of the government is an impossible notion
for a democracy. In brief, I suggest, that the presence or absence in the law of the
concept of seditious libel defines the society. A society may or may not treat
obscenity or contempt by publication as legal offenses without altering its basic
nature. If, however, it makes seditious libel an offense, it is not a free society no
matter what its other characteristics.28
Justice Brennan in New York Times Co. v. Sullivan wrote that the libel case before the court,
involving as it did statements allegedly defamatory of government officials and acts of government
24
New York Times Co. v. Sullivan, at 274 (quoting 4 ELLIOT’S DEBATES
CONSTITUTION 546-580).
ON THE
25
New York Times Co. v. Sullivan, at 282.
26
New York Times Co. v. Sullivan, at 274.
27
Whitney v. California, 274 U.S. 357, 375-76 (1927) (J. Brandeis, concurring).
28
FEDERAL
Harry Kalven, The New York Times Case: A Note on “The Central Meaning of the First
Amendment,” 1964 THE SUPREME COURT REVIEW 205.
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AMERICAN BAR ASSOCIATION—CENTRAL AND EAST EUROPEAN LAW INITIATIVE
agencies, was to be considered “against the background of a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may
well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public
officials.”29
3.
Criminal Libel
Related to the concept of libel of the government is the question of whether or not a state’s
laws should ever allow for criminal libel prosecutions. There have been few criminal libel
prosecutions in the United States, at least in modern times, and it would appear that most of these
handful of cases involve private individuals allegedly defaming other private individuals over
private disputes. A number of states, however, do retain criminal libel laws on the books. Because of
the power of the state in enforcement of criminal laws, criminal libel can produce terrifying, clearly
anti-expression, results.
One of the few recent examples of that is found in the case of Fitts v. Kolb.30 Fitts, president
of a weekly newspaper in South Carolina, published an article accusing two local politicians who
were up for election of being “black traitors” who participated in “corrupt dealings.” The politicians
obtained warrants for Fitts’ arrest under the South Carolina criminal libel statute. A state magistrate
set bond at $40,000, eight times the maximum fine provided for in the criminal statute. Fitts spent
two nights in jail before being released on his own recognizance. As a condition of his release,
however, he was required to agree not to write any further derogatory articles about the
complainants. While indicted for the crime of criminal libel, his case was never prosecuted. The two
complaining politicians were reelected and, after the election, asked that the charges be dismissed,
stating, not unreasonably from their perspective, that justice had already prevailed.
While the federal court found the state statute to be unconstitutional—it was inconsistent
with the requirements of the First Amendment—an editor of a newspaper spent two days in jail and
his newspaper was silenced during the remainder of the campaign.
While civil suits can be expensive and that cost, or fear of cost, can chill and even destroy a
publication or speaker, pre-conviction detainment or a jail term, or even the threat of imprisonment,
is more restraining still. Indeed, if the government officials subjected to criticism also hold the reins
of the criminal justice system—as, for example, law enforcement, prosecutors, or judges—then the
system cannot help but diminish any true sense of free expression within the community. If a goal of
the system of laws is to promote free exchange of ideas, then criminal libel laws are antithetical to
that goal.
Civil litigation allows for a more deliberate response and damages where appropriate to
compensate the plaintiff for actual harm. While subject to abuse certainly, civil litigation has less of
an appearance of injustice in those instances in which the remedy is sought by those in power than
does the use of the criminal justice system.
29
New York Times Co. v. Sullivan, at 270.
30
779 F.Supp. 1502, 20 Media Law Reporter 1033 (D.S.C. 1991).
CONCEPT PAPER ON MEDIA LAW
4.
11
Civil Defamation
A number of justices of the United States Supreme Court have taken the position that the
First Amendment to the United States Constitution bars any form of libel law31 or that it bars, at the
least, any suit by a government official for statements made about his or her official conduct.32
These views do not represent the majority position in the United States nor, apparently, in
any nation. However, these views are serious and thought-provoking support for the values of free
expression and the assumption that government interference in speech-related matters is a worse evil
than abuse of freedom of speech.
5.
The Elements of a Civil Libel Law Claim
At common law, both in the United States and in England, the elements of a civil defamation
suit were a false, defamatory, and unprivileged statement concerning the plaintiff that was published
to a third party.33 A defamatory communication was defined as one that was calculated to injure the
reputation of another, by exposing him or her to hatred, contempt, or ridicule.34
Because the essence of a defamatory statement is its effect on the plaintiff’s standing in the
community, it has followed that not every statement to which a person might object could form the
basis of a defamation suit. How a legal system defines what is or is not defamatory for purposes of
suit depends upon the extent to which it is determined that the weight of the state should be used to
limit unpleasant or unkind speech. For example, “unflattering, annoying, irksome, or embarrassing”
comments about a person are generally regarded as insufficient to state a claim for defamation.35
31
See, e.g., New York Times Co. v. Sullivan, at 293 (Black, J., with Douglas, J., concurring).
32
See, e.g., New York Times Co. v. Sullivan, at 297 (Goldberg, J., concurring).
33
See Triggs v. Sun Printing and Publishing Association, 179 N.Y. 144, 71 N.E. 739 (1904).
34
Parmiter v. Coupland, 6 M. & W. 105, 109, 151 Eng. Rep. 340, 342 (1840). See also
RESTATEMENT (SECOND) OF TORTS Section 559. (“A communication is defamatory if it tends so
to harm the reputation of another as to lower him in the esteem of the community or deter third
persons from associating or dealing with him.”) Although both American and English common
law agree that the essence of a defamatory communication is that it lowers the plaintiff’s
standing in the community, they differ with respect to the nature of the community. Whereas
English common law requires that the plaintiff show his or her reputation has been injured
before the community at large, under United States common law, the plaintiff need only show
injury before “any substantial and respectable group,” even though that group was a minority
within the community. See Peck v. Tribune Co., 214 U.S. 185, 189-190 (1909) (Holmes, J.) (“If
the advertisement obviously would hurt the plaintiff in the estimation of an important and
respectable part of the community, liability is not a question of a majority vote.”).
35
See ROBERT D. SACK AND SANDRA S. BARON, LIBEL, SLANDER,
(2d ed. 1994) (citing cases).
AND
RELATED PROBLEMS 69
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AMERICAN BAR ASSOCIATION—CENTRAL AND EAST EUROPEAN LAW INITIATIVE
a)
Epithets, Name-Calling, and Hyperbole
Certain categories of speech were wholly exempted from liability. For example, epithets and
insults, however vituperative or tasteless, are ordinarily not actionable at common law.36 In part, this
is due to a belief that a person’s reputation could not be damaged by such language, as it would
unlikely be understood as factual statements about the plaintiff’s character.37 Indeed, any adverse
imputation would be more likely to fall upon the character of the user rather than the subject of the
epithet.38
The related category of “rhetorical hyperbole” is also protected because it will be clear to the
listener or viewer that the hyperbolic language is not intended to be understood in its literal sense.
For example, so long as the terms of the underlying dispute are set forth, the use of the word
“traitor” to describe someone who crosses a picket line during a labor strike is unlikely to be
understood as an assertion that he or she is selling secrets to the enemy.39
b)
Parody and Satire
Parody and satire are related forms of speech that generally are not actionable in defamation.
To the extent that they are not understood as stating actual facts about the plaintiff or are
insusceptible of a defamatory meaning, they are protected under common law principles.40
Moreover, parody and satire are also afforded constitutional protection under the First Amendment.41
36
See Bartow v. Smith, 149 Ohio Statute 301, 305, 78 N.E.2d 735 (Ohio 1948) (“It is axiomatic
that opprobrious epithets, even if malicious, profane and in public, are ordinarily not
actionable.”).
37
See PROSSER & KEETON ON TORTS Section 111, at 776 (5th ed. 1984) (“A certain amount of
vulgar name-calling is tolerated, on the theory that it will necessarily be understood to amount to
nothing more.”).
38
See Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 348 (F.2d 1966).
39
Old Dominion Letter Carriers v. Austin, 418 U.S. 264 (1974). See also Greenbelt Cooperative
Publishing Association v. Bresler, 398 U.S. 6 (1970) (word “blackmail” applied to real estate
developer who used ownership of land sought by city to obtain a zoning variance on other
property was not an accusation of criminal activity).
40
41
RESTATEMENT (SECOND) OF TORTS Section 566, comment d.
In Hustler Magazine v. Falwell, the United States Supreme Court explicitly recognized the
prominent role played by parodies in public and political debate in the United States, concluding
that “our political discourse would have been considerably poorer without them.” 485 U.S. 46
(1988). The court conceded that the parody at issue in Falwell (a mock advertisement in which a
well-known religious leader describes his first sexual encounter as having been an incestuous
relationship with his mother in an outhouse) was “at best a distant cousin ... and a rather poor
relation at that” of the political cartoons that had contributed to public debate. Nevertheless, the
court unanimously rejected the plaintiff’s suggestion that the nature of the parody somehow
stripped it of protection, reasoning that it would be both impractical and constitutionally suspect
CONCEPT PAPER ON MEDIA LAW
c)
13
Opinion
Statements of opinion long have been protected in the common law of England and the
United States, at least with respect to matters of public concern. Whether based upon the view that
freedom of expression of opinion is a prerequisite to self-fulfillment and individual liberty, or on the
quest for truth in the marketplace of ideas, or because it was felt that opinions tend to reflect more
about the speaker than the subject and thus have less impact on the subject’s reputation than factual
statements, the common law has protected statements of opinion. These rationales, of course, are
found in the protection of epithet, name-calling, hyperbole, parody, and satire.
It is conceded that opinion can be hurtful. Opinion can even cause harm if the speaker is
respected and his or her views are accepted by his or her listeners. However, determining what and
how to regulate the expression of opinion is generally felt to be beyond the ability or the correct
jurisdiction of the courts. While courts may be capable of determining the truth or falsity of factual
statements, opinion is, by its nature, not subject to such evaluation. While opinion can be disagreed
with, disputed, or disdained, its dissemination is generally considered to be the baseline price for
adopting free expression in a society.
For example, in an English decision in 1808, the court noted that “[l]iberty of criticism must
be allowed, or we should have neither purity of taste nor of morals. Fair discussion is essentially
necessary to the truth of history, and the advancement of science.”42
At common law, the privilege of “fair comment” was developed by courts to afford some
protection for statements of opinion. This privilege generally was limited to commentary on matters
of public concern. In addition, the privilege often was limited to expressions that were based upon
“true facts” stated with the opinion that “fully and fairly justified” the opinion43 or facts that would
be readily known to the listener or reader, e.g., a comment on an on-going and widely reported news
story would not require the repetition of the entirety of the news coverage that preceded it, or that
could be readily obtained, e.g., a book or movie that is subject to review cannot possibly be summed
up in its entirety in the review but is available for sampling by the reader himself or herself. This
requirement allows the reader or listener to evaluate the opinion expressed. To the extent that the
facts are provided with the comment, most jurisdictions require that the facts be stated accurately or,
at least, substantially so.
Thus, not only limited in scope, the fair comment privilege suffers from a lack of uniformity
to condition liability on such a subjective standard as the “outrageousness” or offensiveness of
the particular parody at issue. See also King v. Globe Newspaper Co. 12 Media Law Reporter
2361 (Mass. 1986) (mock press release by governor of Massachusetts in which governor
criticized his press secretary and named himself as his new press secretary); Hannon v.
Timberline Publishing Inc., 19 Media Law Reporter 1245 (Colo. Dist. Ct. 1991) (humorous
article referring to plaintiff’s real estate company as “Ruth-Less Securities Company” and
suggesting plaintiff intended to close popular bar and restaurant, replacing them with a halfway
house for mental patients and providing a hangout for terrorists).
42
See Tabart v. Tipper, 170 Eng. Rep. 981, 982 (1808)
43
Tabart v. Tipper, at 982.
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AMERICAN BAR ASSOCIATION—CENTRAL AND EAST EUROPEAN LAW INITIATIVE
at common law, varying from state to state. This has left much uncertainty as to the extent of
protection available, particularly to a speaker or publisher on a national scale—a problem that arises
in any area of the law where the parties may be acting on a national platform while the rules can
vary from locale to locale within the nation. To a certain extent, the federalism of the United States
does not lend itself to national law in certain areas where state laws have previously governed. In
other countries, that may not be the case and uniformity of rules in an area that has both vast import
and national reach, such as publishing and speech, may be desirable.
First Amendment protection does provide some degree of national uniformity in the United
States. In 1974, the United States Supreme Court suggested that statements of opinion receive full
constitutional protection: “Under the First Amendment there is no such thing as a false idea.
However pernicious an opinion may seem, we depend for its correction not on the conscience of
judges and juries but on the competition of other ideas.”44
Although the court subsequently held that it had not intended “to create a wholesale
exemption for anything that might be labeled ‘opinion,’”45 the rationale for that later decision was
that expressions of opinion were already protected under a variety of existing constitutional
principles, such as the requirement that plaintiffs bear the burden of proving the falsity of allegedly
defamatory statements that involve matters of public concern. As opinions are by their nature
incapable of being proven false, they thus retain full constitutional protection.46
d)
Falsity
While falsity is one of the elements of a defamation claim, at common law the falsity of a
defamatory statement is presumed, and it is the defendant who bears the burden of proving truth as
an affirmative defense.47 In evaluating the truth defense, however, courts tolerate minor inaccuracies,
not requiring defendants to prove the precise literal truth but only the “substantial truth” of the
allegedly defamatory statement.48 Often framed in terms of the “gist” or “sting” of the alleged
44
Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974).
45
See, e.g., Milkovich v. Lorain Journal 497 U.S. 1, 18 (1990).
46
See, e.g., Hickey v. Capital Cities/ABC Inc., 19 Media Law Reporter 1980 (D. Or. 1992)
(words “low,” “rotten,” and “repulsive” used to describe plaintiff’s buying and selling of stolen
pets were nonactionable expressions of opinion because incapable of being proven false.).
47
See RODNEY A. SMOLLA, LAW OF DEFAMATION Section 5.01[2], at 5-3 (1996). Indeed, in some
jurisdictions this affirmative defense was unavailable if the statement were made with ill will or
an intent to injure the plaintiff. Id. Even following the constitutionalization of libel law, at least
one jurisdiction continues to adhere to this common law rule in cases where the dispute is purely
private and presumed not governed by New York Times and its progeny. See, e.g., Johnson v.
Johnson, 654 A.2d 1212, 1215 (R.I. 1995) (“while truth is a defense, if it is uttered maliciously,
it is then actionable”).
48
See Masson v. New Yorker Magazine, 111 S. Ct. 2419, 2432–33 (1991) (“The common law of
libel takes but one approach to the question of falsity …. It overlooks minor inaccuracies and
concentrates upon substantial truth.”) See also SACK AND BARON, at 183 n.46 (citing cases).
CONCEPT PAPER ON MEDIA LAW
15
defamation, the test is whether the statement as published “would have had a different effect on the
mind of the reader from that which the pleaded truth would have produced.”49
Who must prove falsity, or truth as the case may be, is an important free expression matter.
The Supreme Court of the United States, when it finally addressed libel law and applied
constitutional principles in its earliest decisions to libel claims of public officials and public figures
(see discussion of Fault below), shifted the burden in those cases to the plaintiff to plead and to
prove falsity of any statements alleged to be defamatory.
In Philadelphia Newspapers v. Hepps,50 the United States Supreme Court extended that
requirement, at the least, to any plaintiff in cases involving a media defendant and speech of public
concern. The court reasoned that, because some speech is incapable of being proven true or false,
assignment of the burden of proof in such cases necessarily involved a choice between shielding
from liability speech that in some abstract sense was false or imposing liability on speech that in
some abstract sense was true. The court concluded that “placement by state law of the burden of
proving truth upon media defendants who publish speech of public concern deters such speech
because of the fear that liability will unjustifiably result.”51
To the extent that defamation claims are intended to redress statements that are defamatory
and false, then placing the obligation to prove falsity on the plaintiff seems no more than a logical
allocation of proof. One would not impose liability on a defendant in a battery claim, for example,
without requiring proof that the defendant actually hit the plaintiff. The common law probably
always had it backwards, having developed initially from a notion of protecting society not from
falsity but from breaches of the peace brought on by insult. Under the earliest common law, libel
claims could be brought simply for defamatory statements. No falsity was required. Indeed, it was
thought that the greater the truth, the greater the libel. However, once the law no longer is seen as an
alternative to dueling to protect one’s honor, but only to redress real reputational injury—something
that requires that the defamation be false—and once society agrees that truth can never be punished
under libel laws, then placing the burden on the plaintiff of proving that the statements at issue are
false seems eminently correct.
e)
Fault
Prior to the 1964 landmark United States Supreme Court decision in New York Times v.
Sullivan, libel was, in many respects, a strict liability tort. In most instances, and unlike most other
torts, the plaintiff did not need to prove that the defendant acted with any fault, unless the defendant
could show that his or her statements were within a “privilege.”
Privileges were developed within the common law because, in various instances, strict
liability undoubtedly seemed too harsh or was in opposition to other significant social policies or
goals.
49
Masson v. New Yorker Magazine, at 2433.
50
475 U.S. 767 (1986).
51
Philadelphia Newspapers v. Hepps, at 777.
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AMERICAN BAR ASSOCIATION—CENTRAL AND EAST EUROPEAN LAW INITIATIVE
Absolute privileges provided total immunity from liability but were granted on the basis of
the speaker’s position or status.52 Thus, certain public officials and individual citizens acting
pursuant to civic duty, whose actions require complete freedom to speak, are insulated from tort
liability. The protection, however, is limited to statements made in the course of the performance of
their duties and does not provide protection to those who repeat or report on those proceedings.
Conditional privileges, on the other hand, are not defined by the identity of the person
speaking but rather by the occasion on which the defamatory statement is made. The allowance of
conditional privileges recognizes that on certain occasions the good that may be accomplished by
permitting an individual to make a defamatory statement without fear of liability for misinformation
outweighs the harm that may be done to the reputation of others.53
The first Restatement of Torts enumerated five occasions on which a defamatory
communication would be considered privileged, namely, when the speaker seeks to protect “the
speaker’s own interest, the interest of the recipient of the communication or a third person, an
interest the speaker holds in common with others, the interest of a member of the speaker’s
immediate family, or of the immediate family of the recipient or of a third person, and the interest of
the public in general.”54 The Restatement (Second) of Torts added a sixth category providing
protection for low level public officials who have been held not to be entitled to absolute immunity
but who make defamatory communications required by or permitted in the performance of their
official duties.55 Unlike the absolute privileges, however, these privileges can be defeated by proof of
abuse, such as publication with common law malice (e.g., ill will, spite, or hatred) or excessive
distribution. While tremendously important in developing libel law as it applies to the relationships
of private individuals and entities, these conditional privileges are not as often invoked by media in
their free expression and publishing role.
American courts, and subsequently state legislatures, have also provided protection to the
press (and all other individuals and entities as well) in the form of a qualified privilege known as the
“fair report” privilege. Although, at common law, republishers of libel are just as liable as the
original publisher—meaning that if one repeats a defamatory statement made by another, the
repeater is as liable as the original source—the fair report privilege creates an exception. According
52
Specifically, absolute privileges are extended to pertinent statements (i.e., relates to the
proceeding) made by participants in judicial proceedings, including judges, other judicial
officers, attorneys, parties, witnesses, and jurors. In addition, the Speech and Debate Clause of
the Constitution provides absolute immunity to congressional legislators for statements made
while in debate or engaged in legislative hearings and related legislative acts. State constitutions
provide similar immunity for state legislators. The Supreme Court also held in Barr v. Mateo,
360 U.S. 564 (1959), that federal executive officials are protected by an absolute immunity for
defamatory statements made while they are acting within the scope of their authority. On the
state level, however, some jurisdictions only extend absolute immunity to the highest ranking
officials while other states apply the absolute privilege to all public officials.
53
See SACK AND BARON, at 411.
54
RESTATEMENT OF TORTS Sections 594 through 598 (1938).
55
RESTATEMENT (SECOND) OF TORTS Section 598A (1977).
CONCEPT PAPER ON MEDIA LAW
17
to the Restatement (Second) of Torts, “the publication of defamatory matter concerning another in a
report of an official action or proceeding or of a meeting open to the public that deals with a matter
of public concern is privileged if the report is accurate and complete or a fair abridgment of the
occurrence reported.”56
The fair report privilege actually affords greater protection than the other qualified privileges
as it even extends to situations where the republisher does not believe the defamatory statements
reported or, indeed, knows them to be false.57 Thus, in some jurisdictions the fair report privilege is
nearly absolute, denying recovery once the defendant has met both the fairness and accuracy tests of
the privilege.58 In other jurisdictions, however, courts continue to treat fair report as they do the other
conditional privileges—by examining whether the defendant is guilty of malice in the common law
sense of spite, ill will, or a purpose to harm.59 Further, in some, the privilege can be defeated if the
plaintiff can show that the defendant published the statements with “actual malice,” that is, knowing
the statement was false. 60
Because the privilege was created in order to allow the public, via publication, to know what
its government officials are saying and doing, it is illogical that the privilege can be defeated on any
grounds other than lack of fairness and accuracy. Because of the importance of the privilege in
affording the public information about its officials and government operations, courts regularly
expand the scope of the privilege to cover a broad scope of government actions or documents that
reasonably can be characterized as “official.” Examples of the issues of inclusion within the
privilege that have divided the courts in recent years are press conferences by public officials and
documents not generally available to the public (e.g., confidential FBI reports). However, the scope
of the privilege ultimately depends upon the commitment of the society to open government,
including the judiciary, and a willingness to allow the reportage of government acts and statements,
even if, on occasion, those acts and statements are unreasonable and defamatory.
As previously noted, the common law also provided protection for defamatory statements
through a “fair comment” privilege. The fair comment privilege permitted statements of opinion
about matters of public interest to be freely made, provided that the statements were based upon
facts fairly stated or known to the recipients of the communications. Fair comment was applied to
political affairs, specifically commentary on public officials and candidates for public office.
A minority of jurisdictions felt that the importance of fair comment in this context went so
far as to protect even opinion based upon expressed or implied mistakes of fact. As one court noted,
“occasional injury to the reputations of individuals must yield to the public welfare, although at
56
RESTATEMENT (SECOND) OF TORTS Section 611 (1977).
57
RESTATEMENT (SECOND) OF TORTS Section 611 comment a.
58
See SACK AND BARON, at 371 n.48.
59
See SACK AND BARON, at 371 n.50.
60
See SACK AND BARON, at 371.
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AMERICAN BAR ASSOCIATION—CENTRAL AND EAST EUROPEAN LAW INITIATIVE
times such injury may be great.”61
In 1964, against the background of the Civil Rights movement, the United States Supreme
Court agreed and cited the minority view of fair comment as grounds for its decision in New York
Times Co. v. Sullivan. Citing “a profound national commitment to the principle that debate on public
issues should be uninhibited, robust and wide-open,”62 the court noted that “erroneous statement is
inevitable in free debate, and ... must be protected if the freedoms of expression are to have the
‘breathing space’ that they ‘need to survive.’”63
The “breathing space” provided by the court was “a federal rule that prohibits a public
official from recovering damages for a defamatory falsehood relating to his official conduct unless
he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was
false or with reckless disregard of whether it was false or not.”64 In subsequent cases, the court
would expand the freedom provided by the actual malice standard to cover libel suits brought by
public figures.65 Thus, American libel law soon gave the greatest protection to those critics of public
officials and public figures who would have faced the greatest punishment under a regime of
seditious libel.
The effect of the actual malice standard may be described in two different ways. On one
hand, it can be said that Sullivan and its progeny “imposes a limitation on the action so that the
plaintiff cannot maintain it unless he shows that his cause of action does not come within the
limitation.”66 On the other hand, the actual malice standard can be viewed as affording a
constitutional “privilege to the defendant so that he is not liable if he comes within the scope of the
privilege and does not exceed or abuse the privilege.”67 Unlike the other common law conditional
privileges, the “constitutional privilege” does not have to be raised and proved by the defendant,
rather, the plaintiff has the burden of alleging and proving that the defendant had knowledge or acted
in reckless disregard.
Regardless of how it is characterized, the actual malice standard changed libel law by
61
Coleman v. MacLennan, 78 Kan. 711, 724, 98 P. 281, 286 (1908), quoted in New York Times
Co. v. Sullivan, at 281.
62
New York Times Co. v. Sullivan, at 270.
63
New York Times Co. v. Sullivan, at 271-72 (quoting NAACP v. Button, 371 U.S. 415, 433
(1963)).
64
New York Times Co. v. Sullivan, at 279-80.
65
See Gertz v. Robert Welch Inc. (“Those who by reason of the notoriety of their achievements
or the vigor and success with which they seek the public’s attention, are properly classed as
public figures and those who hold governmental office may recover for injury to reputation only
on clear and convincing proof that the defamatory falsehood was made with knowledge of its
falsity or with reckless disregard for the truth .”).
66
RESTATEMENT (SECOND) OF TORTS, SECTION 580A, comment e.
67
RESTATEMENT (SECOND) OF TORTS, SECTION 580A, comment e.
CONCEPT PAPER ON MEDIA LAW
19
introducing a highly subjective fault standard that had to be proved by public official and public
figure plaintiffs in order to recover.
In Gertz v. Robert Welch, Inc., the Supreme Court struck another blow at strict liability,
holding that “so long as they do not impose liability without fault, the states may define for
themselves the appropriate standard of liability for a publisher or broadcaster of a defamatory
falsehood injurious to a private individual, at least where the content of the defamatory statement
‘makes substantial danger to reputation apparent.’”68 Thus, the states now had a constitutional
mandate to require at least negligence in cases involving private figure plaintiffs and publishers or
broadcasters of defamatory falsehoods.
The requirement that the plaintiff prove that the defendant acted with varying degrees of
fault, at least in cases in which the defamatory matter deals with subjects of public interest or
concern, is consistent with all of the various philosophical underpinnings for free expression.
Moreover, it actually brings libel law more in line with ordinary tort law, which, as a general
proposition, requires that the defendant act with some fault, or at least negligence, before he or she
can be found liable for plaintiff’s injury.
f)
Remedies: Injunctions
One of the most firmly entrenched principles of libel law, and certainly as applied to the
press, has been the common law axiom that equity will not enjoin a libel. A number of rationales
have been cited to support this principle, including: 1) equity will afford protection only to property
as opposed to personal rights, 2) equity will not enjoin a crime, 3) damages provide an adequate
remedy at law for defamation, and 4) the defendant would be deprived of a right to a jury trial. As
one commentator has noted, however, the best support for not permitting the enjoining of libel is
based upon the First Amendment; to enjoin defamation is to employ an unconstitutional restraint on
freedom of speech.69
As the Supreme Court held in Near v. Minnesota, prior restraints of speech are presumed to
be invalid. Indeed, the court in Near noted that prior restraints would be permitted in only
“exceptional cases,” such as speech that threatens the nation’s military security by revealing the
location of sailing troopships.70
Derived from English legal principles, United States law abhors the notion of a government
body, including the courts, barring speech. If the speech is unlawful, subsequent punishment should
suffice. Those favoring injunctive relief disagree, believing that once a libel has been published, the
damage is irreparable.
As a practical matter, in cases involving allegedly defamatory material, an absolute rule
68
Gertz v. Robert Welch, Inc., at 348 (quoting Justice Harlan in Curtis Publishing Co. v. Butts,
388 U.S. 130, 155 (1967)).
69
See SMOLLA, at 9-37, Section 9.13[1][b].
70
Near v. Minnesota, at 716.
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against injunctions forecloses the possibility of frequent lawsuits based upon a person’s mere
suspicion or fear that adverse commentary is about to be published. Thus, it lessens the concern that
rich or powerful plaintiffs could prevent publishers, and particularly smaller and weaker publishers,
from reporting adversely about them simply by tying them up in injunctive action. Any lesser degree
would also have the unfortunate consequence of encouraging reporters to limit their number of
sources in an effort to keep knowledge of an impending derogatory article away from potential
plaintiffs, thereby avoiding litigation.
g)
Remedies: Relationship of Injury to Damages
At common law, in contrast to traditional tort principles, damages in a defamation action
were “presumed” to result from the act of publication and were thus recoverable without a showing
of pecuniary loss, reputational damage, or any other form of injury. Although the rationale was the
difficulty of proving injury despite the likelihood that a serious injury had occurred, presumed
damages were also an invitation to juries to punish unpopular opinions.71
As noted above, the issue of draconian damage awards was at the heart of the decision in
New York Times. By limiting liability to instances in which actual malice was proven by clear and
convincing evidence, the Supreme Court restricted the availability of any damages in defamation
cases involving public officials or public figures.
In Gertz v. Robert Welch, Inc., the court declined to extend the actual malice standard to
cases involving private figure plaintiffs, permitting such plaintiffs to establish liability upon a
showing of negligence.72 Nevertheless, concern about “[t]he largely uncontrolled discretion of juries
to award damages where there is no loss” led the court to limit recovery in private figure cases to
“actual injury,” with presumed and punitive damages unavailable absent clear and convincing
evidence of actual malice.73
While this served as an important restraint on the availability of damages unconnected to any
real harm, the court made clear in Gertz that what it characterized as “actual injury” was “not limited
to out of pocket loss” but included “impairment of reputation and standing in the community,
personal humiliation, and mental anguish and suffering.”74 Although Gertz required that all awards
be supported by competent evidence, the failure to limit plaintiffs to recovery of pecuniary loss had
the effect of allowing recovery for damages scarcely more concrete than the presumed damages
available under common law.
Indeed, in Time, Inc. v Firestone, decided only two years after Gertz, the Supreme Court
71
Gertz v. Robert Welch, Inc., (“the doctrine of presumed damage invites juries to punish
unpopular opinion rather than to compensate individuals for injury ...”).
72
In so doing, the court overruled its plurality opinion in Rosenbloom v. Metromedia, Inc., 403
U.S. 29 (1971), which had applied the actual malice standard in all cases involving issues of
public concern, regardless of the status of the plaintiff.
73
Gertz v. Robert Welch, Inc., at 349–50.
74
Gertz v. Robert Welch, Inc., at 349–50.
CONCEPT PAPER ON MEDIA LAW
21
further undermined its previously stated goal of limiting speculative damages. Affirming a sizable
award based on mental anguish alone, the court held in Firestone that the First Amendment does not
require proof of injury to reputation as a prerequisite to an award of “actual damages,” leaving
resolution of this issue to state common law.
Because a defamation claim is predicated upon an injury to reputation, it would seem logical
to require the plaintiff to prove damage to reputation as a prerequisite to an award of actual damages.
Nevertheless, a number of states permit recovery for mental anguish alone, adopting the common
law position that it is often difficult for plaintiffs to prove reputational injury.
In these states, the practical effect of Firestone has essentially been to resurrect presumed
damages even in cases governed by Gertz.75 Moreover, allowance of recovery for emotional distress
standing alone in a defamation action obscures “the fundamental difference between a right to
privacy and a right to freedom from defamation ... [, namely] that the former directly concerns one’s
own peace of mind, while the latter concerns primarily one’s reputation.”76
h)
Of and Concerning
Inherent in a cause of action for defamation is the requirement that the alleged defamatory
statement be “of and concerning” the particular plaintiff. This does not mean, however, that the
statement must specifically name the plaintiff. Rather, if it can be shown either that the implication
of the article was that the plaintiff was the person meant or that he or she was understood to be the
person spoken about in light of the existence of extrinsic facts not stated in the article, then it is “of
and concerning” the plaintiff as though he or she were specifically named.77 On this issue, the
plaintiff must bear the burden of pleading and proof, by way of “colloquium” that the defamatory
meaning attached to him or her.
While it is clear that a single publication may defame two or more persons, the situation
becomes more problematic when the alleged defamatory statement is directed at a group or class of
persons rather than an individual. In these instances, liability often turns on the size of the group
seeking recovery. For instance, a statement defaming all lawyers in the United States would be held
to be such a general broadside that no individual lawyer could sue.78 On the other hand, defamatory
statements made about a small group may be held to defame all members of the group.79 The general
75
See SMOLLA, at 9-14, Section 9.06[5][b].
76
Themo v. New England Newspaper Publishing Co., 306 Mass. 54, 57, 27 N.E.2d 753, 755
(Mass. 1940).
77
See SACK AND BARON, at 151.
78
SACK AND BARON, at 154.
79
The classic illustration is Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y. 1952). In that case,
the defendant had written that “all” of a department store’s saleswomen were prostitutes while
“most” of the salesman in the store were homosexuals. There were 382 saleswomen and twentyfive salesmen employed by the department store. The court permitted the salesmen to proceed
with their cause of action, while it dismissed the saleswomen’s action because of the size of the
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rule in American courts is that if the group is so large that “there is no likelihood that a reader would
understand the article to refer to any particular member of the group,” it is not libelous of any
individual.80
This rule has resulted in a consensus of courts permitting recovery in cases involving
numbers of twenty-five or fewer.81 This number, however, is by no means set in stone and some
courts have opted to focus on an “intensity of suspicion test” rather than mere size.82
Closely related to the issue of group libel is the notion of vicarious defamation. The general
rule provides that a statement about a person is only “of and concerning” that person and does not
extend to friends, relatives, or associates.83 Conversely, in cases involving statements defaming
organizations or entities, recovery should not extend to the members of the organization.84 Of
particular importance is the situation where the government is criticized, but it is a governmental
officer who seeks redress. This problem gained constitutional dimension in New York Times Co. v.
Sullivan, where the Supreme Court found that to permit an individual government official to claim
recovery for defamatory statements that did not name him, but rather addressed governmental
conduct in general, “has disquieting implications for criticism of governmental conduct.”85
Permitting recovery in such a case would, according to the court, “transmut[e] criticism of
government, however impersonal it may seem on its face, into personal criticism, and hence
potential libel, of the officials of whom the government is composed.”86 Accordingly, given the
history of seditious libel in the United States, the court held that “such a proposition may not
constitutionally be utilized to establish that an otherwise impersonal attack on governmental
operations was a libel of an official responsible for those operations.”87
B.
Libel Law and Defamation
The First Amendment of the United States Constitution guarantees the people’s rights of
free speech and of a free press. The free flow of information is central to a democracy, which
depends upon an informed public. Thus, in its landmark libel ruling in New York Times Co. v.
Sullivan, the United States Supreme Court emphasized the importance of “uninhibited, robust
and wide-open debate on public issues.”
class.
80
See SACK AND BARON, at 154.
81
RESTATEMENT (SECOND) OF TORTS Section 564A, comment b.
82
See SACK AND BARON, at 157 citing Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226, 233,
445 N.Y.S.2d 786 (2d Dep’t 1981).
83
See SACK AND BARON, at 159 n.378.
84
See SACK AND BARON, at 160 n.386.
85
New York Times Co. v. Sullivan, at 291.
86
New York Times Co. v. Sullivan, at 292.
87
New York Times Co. v. Sullivan, at 292.
CONCEPT PAPER ON MEDIA LAW
23
However, balanced against this constitutional protection of speech is another important
interest: the protection of the individual’s right to his or her reputation. Thus, each state’s
common law, inherited from England, protects every person from the publication or
dissemination of libelous or defamatory statements to third persons. It is the struggle between
these two interests that American libel law is all about.
1.
The Elements of Defamation
Libel is (1) the publication of (2) a statement of fact (3) that is false and (4) that
reasonably refers to the plaintiff (5) in a manner that tends to injure his or her reputation or to
discredit him or her in the estimation of the public, (6) and which is published with the requisite
degree of fault. A brief discussion of these six elements may be helpful.
a)
Publication
Libel (or slander) can arise from a writing, an oral statement, or a broadcast. The
communication must, however, go to a third person, i.e., someone other than the subject of the
statement.
b)
A Statement of Fact
Defamation only arises from statements of fact. Because they must be false, and because
opinions are neither true nor false, statements of opinion cannot be libelous. The difference
between fact and opinion is not easy to define. If a statement can be determined as clearly true or
false (e.g., John Smith was found guilty of murder), it can be libelous; if the statement cannot be
demonstrably false (e.g., John is a bad guy), it cannot be libelous. The context of where the
writing appears also is a factor in determining whether a statement is fact or opinion. If it is
written in a letter to the editor of a newspaper or on an editorial page or a music review, readers
probably will assume those statements are opinion; if the same statement appears in a news
article, it may be more likely to be considered as fact.
c)
False
Not only must the statement be false, but the plaintiff has the burden of proving falsity.
The defendant or publisher does not have the burden of proving truth. Moreover, the statement
must be materially or substantially false. That is, if the statement is technically false, but the gist
of the statement in eyes of the reader is no different than the truth, no legal cause of action will
lie. Thus, a case would be dismissed where a newspaper wrote that John Doe was found guilty of
stealing $20,000, when in fact he was found guilty of stealing $15,000. The difference would not
have a significant impact on the mind of the reader.
d)
Refer to Plaintiff
The statement must be about the plaintiff, such that readers can reasonably identify
plaintiff as being the subject of the defamation. This does not mean that the plaintiff has to be
named: identifying someone as the captain of the local football team or the local police chief,
even if his or her name is not used, will identify him or her. On the other hand, saying that one of
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the policemen in town is a crook, where there are one hundred policemen in town, does not
identify anyone and is not actionable.
e)
Reputational Injury
The statement must injure a person’s reputation. This injury does not have to lead to
financial damage. As long as plaintiff can show that some people in the community think less of
him or her because of the false statement, he or she can sue. A few people have such low
reputations already that they are deemed libel-proof, in that their reputations are so low they
cannot further be damaged.
f)
Fault Must Be Shown
Because of the constitutional interests involved on the side of free speech, a publication
of a false and defamatory statement about an individual is not, by itself, sufficient to pin liability
against a publisher or speaker. There must be a showing of fault on the part of the media
defendant. Thus, unlike the normal tort suit against a business defendant, the law does not
require the media to be faultless and completely accurate. Further, the media are judged by the
care and professionalism that is used in the publication process.
The United States Supreme Court has decided that there are two categories of plaintiffs
and that each has a different standard of fault to prove. The first group of plaintiffs consists of
public officials (e.g., elected officials, government workers, and so forth, including policemen
and maybe even public school teachers), public figures (e.g., celebrities, sports and movie
figures, and the like), and limited purpose public figures (private people who have thrust
themselves into the public limelight on a certain controversial issue, in which case they are
public figures for the purpose of speech about that issue). Because these people generally have
sought public attention, because they generally have access to the media to respond to critical
statements against them, and because speech about them generally is important to the public,
these plaintiffs have a difficult standard of fault to prove in bringing a defamation case. They
must show that the statement was made with “actual malice”: this means that the publication was
made with serious doubts as to the truth or with a high awareness of probable falsity. Thus, a
plaintiff has to prove that, when the speaker made the statement, the speaker had serious doubts
that what he or she was writing or saying was true.
The other class of plaintiffs, private figures, have a somewhat easier test. Although they
have to prove some degree of fault, they only have to prove negligence: that the publisher did not
use the ordinary care that a reasonable journalist would use in publishing an article. Thus, one
would ask questions such as whether the journalist interviewed sufficient people with
information about the charge, whether those people were reliable (or had prejudices against the
subject), and whether there were documents at which the journalist had an opportunity to look.
2.
Defenses
Even if plaintiff can meet all of the above elements of a defamation case, there are certain
defenses available to the publisher. The most well-known, of course, is truth. Since libel is a
false statement of fact, truth is an absolute defense. Nevertheless, truth is sometimes elusive and
CONCEPT PAPER ON MEDIA LAW
25
very difficult to prove; many libel cases are won by the media without a final determination of
the truth of an article.
The second defense is the privilege for statements of opinion. As explained above, a
statement of opinion is not actionable. However, to qualify for this privilege, it is important to
give the reader the facts that support the opinion being rendered.
For most journalists, the most important privilege is one for the fair and accurate account
of an official proceeding or record. Thus, if one is reporting on a legal action, an official
meeting, a legislative document, official charges, or the like, it does not matter whether the
charges are true or false. As long as the media’s summary of the official document or meeting is
fair and accurate, it is privileged. This privilege exists because it is thought to be in the public
benefit to summarize official proceedings and official government action for the public
regardless of the underlying truth of the statements.
Finally, although it is not a privilege, it should be noted that the dead have no reputation,
hence their estate cannot bring a libel action.
3.
Additional Issues
In light of this quite short outline, it is important to discuss some of the issues not
covered above and some of the problem areas that often occur.
a)
Republication
A publisher is not protected from a defamation action even if he or she can demonstrate
that he or she accurately quoted someone else making a libelous statement. Unless it comes from
an official document or meeting (see the privilege above), the media are responsible for
republishing the statements of others. Of course, if the publisher had good reason to rely on the
source, then, in the end, it would be very difficult for plaintiff to meet the fault standard, i.e., the
media will not have acted negligently or with serious doubts about the truth. However, if the
media correctly quotes someone making a serious charge against someone else, without having a
basis to rely on the source, they will not be immune from a lawsuit. There is one slight exception
to this rule, the neutral reportage principle. That privilege would allow reporting the terrible
things that one responsible public official or figure says about another, and vice versa, regardless
of the truth. However, both speakers must be responsible, prominent persons, and the reporting
must be fair to both sides.
b)
Rumor and Gossip
The rules as to rumors and gossip are similar to republication. One cannot communicate
rumors or gossip unless the communicator has a good defense with respect to the underlying
allegations being made. The fact that the rumor exists is insufficient. Thus, even if it is true that
there is a rumor around town that the mayor is an alcoholic or has had an affair, one cannot
publish that such a rumor exists, unless the publisher has researched the underlying question as
to the alcoholism or the affair and determined it is fit to print.
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c)
Confrontation
Good journalistic practice demands that the subject of a damaging statement be
confronted with it and given a chance to air his or her side of the story or to deny the charges.
However, giving an opportunity for such a response is not a defense to a libel action. The
libelous statement remains a valid basis for a lawsuit, whether or not the subject has had a
chance to issue a denial. Similarly, just because he or she does deny, that is not a reason not to
publish the charge. The denial should be weighed in the balance with the other evidence the
publisher has gathered. A decision based on all the factors should be made as to whether or not
the charge is publishable.
d)
Corrections
When the media becomes aware that it has libeled someone, or made another form of
mistake, it has the journalistic duty to print a correction. The correction does not immunize it
from a libel suit, however. In most American jurisdictions, a correction does serve to
significantly limit the damages plaintiffs can win in libel actions. For example, in many states,
punitive damages cannot be awarded if the publisher has printed a timely correction. In a few
states, a correction eliminates even general reputational damages, allowing plaintiff to win
nothing other than out-of-pocket monetary damages.
e)
Confidential Sources
American law recognizes a privilege between reporter and source such that only in the
most extreme of circumstances must a reporter divulge a confidential source. While that
privilege stands strong if the identity of a source is sought by a third party, for example, if the
government wanted to know who leaked a newspaper certain information, the privilege can
easily be overcome in a libel case. Thus, if a newspaper is sued because of a defamatory charge
made because of information given it by a confidential source, the plaintiff will likely want to
know who that source was. Cross examination of the source will help the plaintiff argue that the
newspaper should not have relied on the source because of an unreliable background, bias, and
so forth. If the journalist does not divulge the name of the source, many judges allow a jury to
assume that no source exists or allow the jury to give such a source very little weight inasmuch
as the jury will not have had the opportunity to see the source.
f)
Corporations
Corporations, partnerships, associations, and the like have reputations that can be
protected by law. Accordingly, they can be plaintiffs in defamation actions.
g)
Implication
Sometimes a libel claim can be made even if the exact facts stated are not false. Thus, if
two sentences are connected so as to give a defamatory implication, even where the statements
are true, a libel action might lie. Similarly, the statement such as “the mayor didn’t have an affair
last night” may be libelous, since it implies the mayor often does have affairs. Some
CONCEPT PAPER ON MEDIA LAW
27
jurisdictions’ laws do not allow such an “implication” or “innuendo” claim against public
figures, especially where the publisher doesn’t appear to endorse the implication being made.
Other jurisdictions treat implication cases like any other claim, even if technically all the facts
are true.
h)
Defamation of Governmental Institutions and Persons
As a general matter, the government and governmental departments cannot sue for libel.
This is consistent with the underlying purposes of the First Amendment, which is to invite
criticism of government. Individual government employees and officials can sue for libel. As
noted above in the discussion of the fault standard, they have a difficult burden in winning a libel
case, since they have to prove actual malice, i.e., that the publisher made the communications
with serious doubts about the truth.
i)
Criminal Defamation and Prior Restraint
All of the above discussion relates to civil cases, where one person or entity sues another
for monetary damages. Under the American Constitution, it is virtually impossible for a plaintiff
to restrain publication, even if the plaintiff knows that what will be printed or broadcast about
him or her is libelous. Such “prior restraints” are very disfavored and are not a proper remedy in
a libel case. Indeed, even if confidential government information is at stake, as in the Pentagon
Papers case, the publication of truthful and newsworthy information cannot be restrained.
Similarly, libel is not a crime. There have been no prosecutions by the government for libel or
defamation in the recent past. This, too, is consistent with the notion that government ought not
be punishing speech.
In general, American defamation law is a balance between protecting energetic
communication on public issues and defending the reputations of citizens. However, American
law recognizes the “chill” on speech if libel rules are unduly strict: if publishers are constantly
worried about libel cases, they would not publish controversial material or anything but
government speeches or corporations’ public relations releases. This would unduly penalize the
public’s ability to get information about their leaders and their society, particularly information
that may be critical about government. Thus, in order to protect such communication and give
the media an incentive, rather than a disincentive, to publish newsworthy and controversial
materials, the balance tends to be struck slightly in favor of protecting the speech and the press.
However, it should be recalled that these are all legal standards. Good journalistic
standards may be stricter. In a free market system, the quality of the journalism ought to be more
of an incentive towards responsible journalism than legal standards. The reputation of journalists
and the public perception that each publication is reporting fairly and accurately ought to be
more of an incentive towards good journalism than the law.
C.
Defamation in Civil Law Countries
This paper attempts to identify certain defamation law issues in countries with civil law
systems and to offer proposed methods of analyzing them. These comments consider the
following types of actions that fall under the broad heading of “defamation law”: civil remedies
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pursued by individuals and criminal sanctions for expressive acts against individuals, groups, or
state officials, institutions, and symbols. This paper assumes that the countries are parties to the
International Covenant on Civil and Political Rights and are either parties to the European
Convention for the Protection of Human Rights and Fundamental Freedoms or seek to accede to
it. It also assumes that the countries have political systems grounded in a commitment to
pluralistic democracy.88
1.
Interests Protected
An analysis of defamation law must take into account and examine the nature of the interests affected and
protected by it. On one side are the interests associated with the preparation, publication, and dissemination of
information and ideas: the self-fulfillment interest of the speaker and the public interest in the free flow of
expressive content. The latter is often cited as essential to an effective system of human rights protection and to the
proper functioning of democratic society.89 These interests are incorporated in constitutional guarantees of free
speech and free press, as well as similar provisions in international human rights instruments such as the European
Convention and International Covenant.
On the other side of the equation are the countervailing interests. In some cases, these are personality rights
expressly guaranteed in constitutions and international human rights instruments. For example, protection of
individual honor and reputation90 is often expressly identified either as a right protected by fundamental
guarantees91 or as an express limitation on the exercise of free expression rights.92 At other times, they are either
expressly stated in legislation or are treated as inherent in general legislative provisions. Thus, although not recited,
statutes providing criminal liability for defamation of state officials, institutions, and symbols have as their
underling rationale the promotion of respect for, and therefore the ultimate preservation of, the prevailing system of
government and the state itself.
These considerations are essential for the legislative and judicial processes of balancing these various
interests. Among other reasons, this is necessary because fundamental guarantees of free expression rights generally
establish that restrictions on the exercise of those rights are impermissible unless they seek to advance identified
countervailing interests.93
2.
Classification of Defamation Actions
The broad heading of “defamation” includes within it several different types of actions. Because they apply
to different types of expression and seek to serve different interests, it is important for analysis to classify these
88
For more information, see International Covenant, Article 19 in Appendix B and European
Convention, Article 10 in Appendix C. See also ARTICLE 19, PRESS LAW AND PRACTICE: A
COMPARATIVE STUDY OF PRESS FREEDOM IN EUROPEAN AND OTHER DEMOCRACIES (1993).
89
For this reason, Article 10(2) of the European Convention limits permissible restrictions on the exercise of
rights of free expression to those that are “necessary in a democratic society.”
90
“Honor” (or “self-esteem”) is related to a plaintiff’s subjective opinion of himself or herself, whereas “reputation”
is an appraisal by others of that person.
91
Russian Federation Constitution, Article 21 and Article 23; International Covenant, Article 17.
92
German Basic Law, Article 5; European Convention, Article 10(2).
93
Russian Constitution, Article 55(3); International Covenant Article 19(3); European Convention, Article
10(2).
CONCEPT PAPER ON MEDIA LAW
29
types of actions. It is useful to classify them based on the interests protected:94
•
Actions for the protection of individual reputation: these protect against dissemination of false
allegations of fact. These can be civil or criminal actions.
•
Actions for the protection of individual self-esteem: these protect against statements, whether
disseminated to third parties or not, that injure individual self-esteem. It does not matter whether these
allege facts or whether they state opinions. These can also be civil or criminal actions.
•
Actions for the protection of state officials, institutions, or symbols: these protect the respect of the
state institutions, and it does not matter whether the statements allege facts or are expressions of
opinion. These are criminal actions.
•
Actions for the protection of groups identifiable on the basis of race, ethnicity, religious affiliation,
gender, or other grounds: these are based also on criminal statutory provisions.
Below, certain issues common to all of these categories, and then questions specific to each of them, will be
discussed.
3.
Issues Common to All Defamation Actions
a)
Jurisdiction of the Courts
The allocation of judicial competence over defamation actions is an important consideration. Should
jurisdiction be limited to the courts of general jurisdiction or assigned as well to specialized tribunals?95 For
example, in states with separate systems of administrative or commercial courts, it is possible that such courts might
be granted competence to hear such cases. Another possibility would be the use of specialized media law tribunals.
Proposals might also be made to assign competence to special emergency courts—a step that should be viewed
with the highest possible scrutiny.
On the positive side, such diffusion of competence would permit the application of greater expertise in
particularized cases, such as claims of injury to business reputation. On the other hand, the more that jurisdiction
over defamation cases is dispersed among different branches of the judiciary, the greater the threat that is posed to
the goals of uniformity and equality—i.e., different results might accrue to different parties under similar factual
circumstances depending upon the forum in which the cases are decided. This is particularly true if the separate
judicial branches have their own appellate courts.
Regardless of the resolution of these questions, it would seem that certain fundamental considerations must
be satisfied: that defamation cases must be decided in public proceedings before decision-making bodies that are
independent of external influences and where decisions are subject to review but only by higher-level bodies within
that institutional branch.
A related set of considerations concerns possible jurisdictional confusion between specialized
94
Meanwhile, it can also be said that all of these might also serve the broad goal of promoting civility in public
discourse.
95
Another option would be to assign competence to non-judicial institutions. If such bodies were empowered to
make binding decisions, it would represent a significant revision of existing civil and criminal statutory schemes
and would still raise the issue of whether some sort of judicial review of final decisions might be required—a matter
that would once again raise the question of judicial competence.
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constitutional tribunals and the ordinary (general jurisdiction, administrative, or commercial) courts. Legislation—
perhaps the constitutional tribunal’s statute—should carefully articulate the various courts’ competence and
jurisdictional boundaries, lest sensitive cases with constitutional dimensions be deprived of proper review. An
example of this problem is demonstrated by the Russian Federation Constitutional Court’s decision to deny the
application of Andrei Kozyrev in a civil defamation case, on the grounds that the court lacks competence to review
acts of law application by ordinary courts.96
Finally, another jurisdictional question concerns the availability of judicial remedies for anyone upon
which a restriction or penalty on the exercise of free expression is imposed. A mass media statute should set forth
what avenues of recourse are available for defense of free expression rights in such circumstances. In keeping with
the principle of judicial independence, it would appear that access to the judicial system for this purpose should be
given serious consideration and, where fundamental rights are at issue, an opportunity for individual complaint to
the judicial body competent to decide constitutional questions.
b)
Issues Specific to Legislative Drafting
Because defamation is often a matter of both civil and criminal law, any revisions of defamation law must
take into account the often fragmentary nature of its rules, which will often be found in various places in civil and
criminal codes as well as a mass media statute. Therefore, consideration should be given as part of any review to the
possibility of consolidating these provisions.
Certain generally applicable legal principles are pertinent to the drafting of defamation legislation and the
balancing of interests which it entails:
•
Provided by law. A statute should embrace the notion that restrictions on the exercise of free
expression are not enforceable unless they are based on transparent (i.e., publicly expressed in readily
obtainable form), expressly stated, statutory provisions.97 Inherent in this concept is also the principle
of statutory supremacy over other sources of non-constitutional legal rules.
•
Proportionality. Also stated as the concept of “necessity,”98 the proportionality principle requires that
any restriction on the exercise of a fundamental right must bear a direct relationship in severity to the
purpose that the restriction seeks to achieve. Article 10(2) of the European Convention, in
addition, requires that restrictions on the exercise of free expression must be necessary “in a
democratic society.”
c)
Issues Specific
to Judicial Analysis
Because of the complexity of the issues involved, particularly in the clash of countervailing
constitutionally-protected interests, many issues in defamation law ultimately will be decided by the courts. Of
particular significance here will be the determination by the courts as to the proper means and level of application of
96
See the discussion of the Constitutional Court’s decision in Peter Krug, Civil Defamation Law and the
Press in Russia: Private and Public Interests, the 1995 Civil Code, and the Constitution, Part
Two 14 CARDOZO ARTS AND ENTERTAINMENT LAW JOURNAL 297, pages 303-307, included in
Appendix M. The Russian ordinary courts, including the Supreme Court, have apparently not yet accepted the
Constitutional Court’s invitation to develop the constitutional contours applicable to defamation cases, and
particularly those involving critical opinion.
97
Both European Convention, Article 10 and International Covenant, Article 19 include this requirement.
98
See European Convention, Article 10 and International Covenant, Article 19.
CONCEPT PAPER ON MEDIA LAW
31
the goals of pluralistic democracy.99
A threshold question in judicial analysis of civil defamation law will be whether constitutional free
expression guarantees are applicable—i.e., whether they operate with third-party effect to bind private plaintiffs.
The question for the courts will be whether the exercise of free expression, as a matter of public interest, is
implicated by the availability of civil defamation remedies against mass media defendants.100
4.
Issues Specific to Actions for Protection of Individual
a)
Reputation
Standard of Liability
Should there be a statutory provision setting forth a standard of liability? An expressed standard of liability
puts a burden on the plaintiff to prove not only that the defendant made a defamatory statement, but also did so in
some manner that permits the imposition of liability.101 In those systems where such a statement is absent from the
applicable legislation, one of two things will occur: (1) the standard of liability will be viewed as strict liability,
meaning the defendant will be liable in all circumstances if the plaintiff proves the basic elements, regardless of
whether the defendant knew the asserted facts were false or whether the defendant was in any way at fault (this
means the defendant will not have as a defense the fact that it did not know the information was false or that it
exercised proper care in attempting to determine the question of truth/falsity), or (2) the courts, on the basis of
constitutional or international norm grounds, will fashion a fault-based standard of liability that requires a
successful plaintiff either to prove that the defendant knew the asserted facts were false or did not exercise proper
care to determine truth or falsity.
Therefore, for the purposes of this concept paper, the questions are whether there should be a statutory
standard of liability, and, if so, what that standard should be. The benefit of having a statutory standard would be
the presence of clarity and certainty.
If it is determined that statutory articulation of a standard is warranted, several options exist. The first
option is a requirement that the defendant knowingly made a false statement. This is frequently found in criminal
defamation statutes. The second option is a requirement that the defendant should have known that the
statement was false. A standard such as this would have to be stated carefully, so as to express whether the standard
is objective (under prevailing standards of reasonableness or professional care, the defendant should have
discovered that the information was false) or subjective (whether the defendant purposefully did something to avoid
concluding that the information was false). The third option is a statement that the standard of liability is strict
liability (i.e., no burden on the plaintiff other than to prove the three basic elements).
Obviously, these options are listed in descending order of weight to the free expression interest. Option
three essentially states that under no circumstances will a defendant who has made a defamatory, publicized
statement identifying the plaintiff escape liability unless it can prove a defense or privilege.
Other factors, such as the status of the plaintiff or the nature of the interest protected, might also be
considered in determining the standard of liability. For example, if the plaintiff is a public official, and the
defamatory statement relates to performance of his or her public duties, then a higher standard might be imposed
than that imposed on other plaintiffs. Under the case law of the European Court of Human Rights, interpreting and
99
See the discussion in Krug article, Part II, pages 327-331.
100
See the discussion in Krug article, Part II, pages 316-322 (including citation to studies regarding the German
Federal Constitutional Court’s 1958 decision in Lüth).
101
Thus, this should be distinguished from defenses available to a defendant, such as truth, good faith, or public
interest. See discussion below.
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applying Article 10 of the European Convention, the status of the plaintiff plays a role in determining the extent
of critical speech that must be tolerated. In Lingens v. Austria (1986) and its progeny, the court has consistently
declared that elected public officials must tolerate critical opinion to a greater degree than other citizens. The
question in actions based on allegations of fact is whether the Lingens principle should be extended to apply to all
defamation actions and not just those where value judgments are at issue.
It is also possible that different standards might be imposed depending on whether the reputational interest
protected is that of a natural person or a business entity. Such considerations might rest on identification of societal
values regarding the importance of free flow of business-related information to the functioning of a market economy
and, ultimately, to pluralistic democracy.
In addition to the balancing of the respective free expression and reputational interests, another
consideration might be judicial economy. Option three above offers the simplest test for establishing liability.
Option two, on the other hand, would entail considerable evidentiary questions; in particular, choice of an objective
standard based on professional care would probably entail the presentation of evidence based on expert testimony as
to prevailing journalistic standards.
b)
Defenses
Most legal systems make available to defendants a certain number of defenses that, if established by the
defendant who has the burden of proof as to them, allow the defendant to escape liability even though the plaintiff
has successfully proven all the basic elements. These defenses are usually set forth in the applicable legislation but
could also be established by the courts in the absence of statutory defenses.
Among the defenses or privileges might be found the following:
•
Truth. Most legal systems establish truth of the defamatory statement102 as an absolute defense to a
claim based on injury to individual reputation.103 In most systems, the burden of proof is on the
defendant to prove the truth of the statement; however, certain others place the burden on the plaintiff
to prove that it was false.104
•
Good faith. A number of legal systems provide this defense, which might be construed to mean either
that the defendant did not willfully intend to injure the plaintiff or that it made a conscious effort to
determine whether the statement was false. Such a defense might incorporate a standard of journalistic
due care. As a result, even though the statement in question might have been false, the defendant might
not be held liable because it satisfied the professional care standard. In some legal systems, this
102
Note that this means that part of a statement that gives the statement defamatory meaning. A false statement
that accompanies another expression of defamatory meaning that is nonetheless truthful should not make a
defendant liable.
103
In other words, a true statement cannot be subject to sanctions even if it is defamatory (lowers the plaintiff’s
reputation). The defense of truth is in keeping with the notion that individual or business reputation is an interest
deserving of legal protection only when it is lowered by the expression of false allegations of fact and not by the
publication of any set of injurious facts. The common law criminal action of seditious libel, on the other hand, did
not permit truth to serve as a defense. This concept is incorporated in the actions for protection of individual selfesteem and state institutions, discussed below.
104
Austria does this in civil actions, and Germany does so in the case of mass media defendants. The United
States Supreme Court has ruled that a private plaintiff must prove falsity when the defendant is a mass medium,
and that a public plaintiff must show falsity as part of its burden to show that the defendant acted knowingly or with
reckless disregard as to falsity.
CONCEPT PAPER ON MEDIA LAW
33
defense also requires a showing by the defendant that the matter in question was one of public interest.
•
Public interest. This showing that the subject matter of the statement at issue was a matter of public
interest might serve as a defense in itself, or it might be required in conjunction with the defense of
good faith: i.e., the defendant to establish a defense must show that it acted in good faith and that the
statement concerned a matter of public interest. As in the case of the standard of liability, this defense
might be made available depending upon the status of the plaintiff.
•
Responsible persons. As a matter of public policy, the legislature might consider exempting certain
persons from personal liability in defamation. For example, some mass media statutes provide that
liability will be imposed only on explicitly defined “responsible persons,” such as the mass media
entity itself or the chief editor.
•
Miscellaneous privileges. Some statutory schemes list absolute privileges105 that, if present, prevent
the imposition of liability on the defendant. For example, among these are situations where the
defendant published without change a statement obtained from a governmental source (a government
report or governmental official).
c)
Critical Opinion
Difficult questions arise when the statement at issue was one purely of opinion or an expression of opinion
suggesting the knowledge of underlying facts. In the former case, the matter should not be analyzed as an action
based on protection of individual reputation; instead, it would not be actionable or would belong in the categories of
actions based on alleged injury to self-esteem or protection of the state.106 This is a particularly difficult problem
because it entails the problems of: (1) determining whether the opinion was based on underlying asserted facts,107
which are then susceptible to an objective assessment of truth or falsity; and (2) establishing which party bears the
burden of proof on these questions.
Any country which is party to the European Convention or aspires to become a party ought on this
question to consider conforming its legislation to the rules set forth by the European Convention in a line of
decisions beginning with Lingens v. Austria. Under the standards articulated by the court in those cases, a defendant
in a suit brought by a public official on the basis of stated value judgments cannot be forced to bear the burden of
proving that the allegations were true.108 This purpose is, of course, served in those legal systems that require the
plaintiff to bear the burden of proving that the statement in question alleged facts, and that the facts were false.
d)
Protection of Confidential Sources
In cases where the question of liability might turn on analysis of the truth or falsity of the statement, the
105
Civil law systems do not appear to provide for the kind of “qualified privileges” created by courts in common
law systems. A qualified privilege is one that will apply to a particular case unless the plaintiff is able to show why
it should not be applied under the particular facts of the case.
106
Of particular note are the high number of defamation actions in the Russian Federation arising out of statements
that plaintiffs are “Fascists” or have “Fascist-like” political views or tendencies. In such cases, the courts have
treated contested expression of value judgments as if they were susceptible to factual determinations under the
category of actions based on allegations of fact. See Krug Article, Part I, pages 858-863.
107
If not, then in reality the claim is one that should not be actionable in defamation, but only in “insult” if such a
tort or crime is established in legislation.
108
The Lithuanian Parliament has been considering the codification of this principle in its mass media statute.
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defendant’s use of professional care, or its possible intent to injure, a problem can arise if the defendant claims to
have received its information from a confidential source.109 Because of this problem, lawmakers must determine
whether fundamental norms or statutory provisions protect defendants from forced disclosure. In some legal
systems, such protections are available to journalists if they are third-party witnesses in litigation but not defendants
in a defamation action.110
e)
Remedies111
In civil defamation, statutory remedies available to a successful plaintiff might include retraction, right of
reply, and monetary damages. Regarding retraction and right of reply, statutory provisions should attempt to
articulate the conditions that a defendant must satisfy in complying with a court order: i.e., must a retraction or
reply be placed in a part of the newspaper or broadcast that corresponds to that in which the defamatory statement
was made? Must a right of reply be made available without charge to the plaintiff? Is a right of reply available even
if the statement in question was not false? These considerations are related to the notion that retraction and right of
reply remedies seek to restore the plaintiff to the position that he or she enjoyed before publication of the
defamatory statement.
Regarding monetary damages,112 most civil law systems do not accept the notion of punitive damages, but
many do provide for moral damages, i.e., damages for harm that cannot strictly be measured in monetary terms.113
A threshold question, of course, is whether moral damages should be included among the available remedies or
whether monetary damages should be limited to actual pecuniary loss that can be proven by the plaintiff, i.e., to
which a specific monetary value can be assigned. Perhaps a distinction could be made here, depending on the status
of the plaintiff, such as a public official limited to recovery of pecuniary loss. If moral damages are made
available, then the legislature should consider whether the applicable statute should include any criteria to limit or
guide the court’s discretion, such as the degree of the defendant’s fault, the extent of the public interest in the
subject matter of the defamatory statement, or a requirement that the plaintiff must prove the infliction of an actual
injury. Regarding this last option, a further criterion for the court could then be an assessment of the extent of moral
damage based on the nature of the injury. This is, of course, a particularly sensitive area because of the potential for
self-censorship posed by the threat of monetary damage awards unrelated to compensation for actual out-of-pocket
losses.
109
This problem is inherent in systems where the burden of proof as to truth is on the defendant. If the defendant
relied on a confidential source for its information, it faces the dilemma of remaining silent, thereby risking liability,
or of breaking a promise of confidentiality.
110
Examples are France and Austria. In the United States, this is true in many jurisdictions (i.e., states and
localities) but not universally. A recent European Court of Human Rights decision in this area is Goodwin v. United
Kingdom.
111
Many of these comments about remedies might be applicable to the other defamation actions, as well as those
based on allegations of false facts. An underlying theme throughout the consideration of remedies, particularly
money damages, is that media organizations in many countries have stated that the overall costs of litigation, win or
lose, pose a greater threat to them than the question of liability in specific cases. This might be of particular
relevance in many European civil law countries, where the tradition has been to assess monetary damages at much
lower levels than in countries such as the United States and United Kingdom. These considerations would appear to
place a high premium on establishing the proper balance of countervailing interests throughout the many aspects of
defamation law, rather than concentrating primarily upon damages.
112
In many countries, monetary damages awards to victims can also be assessed in criminal defamation actions, as
well as civil.
113
In civil actions, Austria limits monetary recovery to out-of-pocket losses, thereby excluding moral damages.
CONCEPT PAPER ON MEDIA LAW
35
In criminal defamation, in addition to payment of damages to the victim, the state’s sanctions might
include retraction, right of reply, monetary fine, and imprisonment. In determining both the wisdom of including
such sanctions and the degree of their severity, the legislature should be guided by consideration of the
countervailing interests involved as well as the goal (punishment or deterrence) of the sanctions. Is the statute
expected to protect personal reputation, the level of public discourse, ethnic or racial harmony, or the sanctity of
state officials and symbols? Do these vary as to the severity of sanctions that are justified? Do they vary as to the
purpose that the sanctions are intended to serve?
5.
Issues Specific to Protection of Individual Self-Esteem
In the category of issues specific to the protection of individual self-esteem belong statutes such as
criminal114 or civil115 provisions that penalize statements, whether or not they allege facts, that are to some degree
offensive and therefore constitute “insult” as well as civil torts that establish liability for offensive statements that
might or might not allege facts. In insult, as distinct from actions for the protection of reputation from allegations of
fact, the question of truth or falsity is not at issue, and, therefore, truth is not available as a defense.
The absence of truth as a defense means that there is not a quantifiable standard in insult actions that is
susceptible to an objective determination. Furthermore, considerable potential exists for a blurring of the lines
between insult and strict defamation actions based on allegations of fact; when the statement is question is totally or
primarily a value judgment, the placement of a burden of proving truth on the plaintiff in essence turns the action
into one of insult. Therefore, this is an area of particular legal uncertainty in which defendants could be vulnerable
to subjective determinations and arbitrary decision-making. As a result, in order to preserve a balance that affords
recognition of fundamental free expression guarantees, lawmakers should consider the inclusion of some of the
elements or defenses discussed above regarding actions based on allegations of fact. Particularly necessary in this
regard would appear to be the inclusion of an “intent to injure self-esteem” element among those that a successful
plaintiff would be required to satisfy.116 This would insure that the insult action serves to protect the interests
protected—individual self-esteem and perhaps the maintenance of civility in public discourse—and nothing more,
such as a public official’s standing among the electorate.
Indeed, it is perhaps in insult actions that the status of the plaintiff assumes particular importance. Because
insult encompasses actions against both statements that might be based totally on true facts (and yet still be
injurious to self-esteem) and statements that are purely critical opinion or value judgments, public officials could
employ criminal or civil actions as a means to penalize and stifle the dissemination of information or criticism that
lies at the heart of public debate in a democratic society. Such a purpose would call into question the legitimacy of
protecting such an interest at the expense of free expression interests and particularly would not appear to be
consistent with the requirement that it be “necessary in a democratic society.”
6.
Issues Specific to Protection of State Officials, Institutions, and Symbols
The same considerations apply to criminal statutes penalizing statements, whether alleging facts or
expressing opinion, that single out state officials, institutions, and symbols. In addition, because they single out a
special class of victims, such statutes cannot be viewed as furthering the interests of individuals based on notions of
the sanctity of the dignity of the individual. A question also exists as to whether the protection of state institutions
114
For example, see Article 131 of the current Russian Federation Criminal Code.
115
For further discussion, see Krug Article, Part I, at pages 861-862 (including references to the tort in German
and Swedish law).
116
This would be consistent with the requirements of the International Covenant regarding protection of
individual honor and reputation. See Krug Article, Part II, pages 324-326.
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from expressive attack is among those interests enumerated in the European Convention and International
Covenant as permissively furthering restrictions on free expression.117
Although the historical roots of such statutes are diverse, at least one basis for their enactment lies in the
experience of fledgling democratic regimes threatened by abuse of free expression rights.118 Thus, it can be argued
that there is naturally a public interest, along with maintenance of civility in public discourse regarding public
institutions, that supports enactment and application of such statutes. While this might be correct, it should also
follow that the nature of these interests should be consistent with application of the following restrictions, as
required by Article 10 of the European Convention and the provisions of many constitutions:
•
That application of such statutes is permissible only if it furthers the preservation of the democratic
order; and
•
That it must be proportionate to the ends sought.
Without such stringent standards, the application of such criminal “defamation of the state” statutes would
unduly threaten the interests and democratic values inherent in fundamental free expression guarantees.119 The
“democratic order” not only makes the crucial distinction between preservation of fundamental democratic values
and those interests associated with the state itself but also incorporates the principle that the free flow of information
and ideas is essential to the democratic system.
7.
Issues Specific to Protection of Identifiable Groups
Statutes regulating so-called “hate speech” are also intended to serve a public interest and, indeed, are
required of parties to the International Covenant to the extent set forth in Article 20.120 Much, of course, has
been written about the difficulty of striking a proper balance between such legislation and the rights of free
expression. However, it seems that application of the same “democratic order” and “proportionality” restrictions
provides a reasonable means of approaching such questions.
117
Article 10(2) of the European Convention permits restrictions in the “interests of national security,” and
Article 19(3) of the International Covenant permits restrictions for the same purpose or for protection of
“public order (order public).” Meanwhile, however, these are not in the same category as personality rights that are
themselves guaranteed in other articles of the European Convention and International Covenant.
118
An excellent discussion of these issues is found in a three-part article by David Riesman in 42 COLUMBIA LAW
REVIEW (1942) (describing in particular the use made by the Nazis of defamatory speech to undermine the
democratic institutions of Weimar Germany).
119
One example of a case presenting these issues is the 1995 decision by the German Federal Constitutional Court
in the “Soldiers are Murderers” case. Among newspaper accounts concerning this decision and its reception in
Germany, see Stephen Kinzer, In Berlin, Hot Talk on Free Speech, INTERNATIONAL HERALD TRIBUNE, January 16,
1996 [on Lexis, NEWS Library, CURNWS File].
120
Article 20 is set forth in the Krug Article, Part II, page 340. In acceding to the International Covenant, the
United States has taken a reservation to this article on grounds that it would be inconsistent with the First
Amendment to the Federal Constitution.
CONCEPT PAPER ON MEDIA LAW
III.
37
The Media and National Security, Censorship, and Freedom of
Information
A.
Censorship and National Security
1.
Introduction
The First Amendment of the United States Constitution provides that “Congress shall
make no law ... abridging the freedom of speech, or of the press; or the right of people peaceably
to assemble, and to petition the government for a redress of grievances.”121 The First Amendment
is a pivotal constitutional mandate designed to curtail general governmental power.
Amongst the most serious issues relating to freedom of expression is the degree of
permissible constraint upon the contest of opinion that conflicts with national security and
preservation of a peaceful state. Even within a democratic framework, where the will of the
majority reigns supreme, the minority’s right to dissent and advocate alternatives must be
equally protected. The objective, then, is not harmony but rather the safeguarding of political
discourse, predicated upon the unwavering notion that, without an informal and free press, there
cannot be an enlightened citizenry. To that end, those citizens who wish to thwart the very
governmental system that has created and sustained their forum for discourse must be permitted
to so advocate.
2.
Prior Restraints
Particularly repugnant to a democratic society founded upon free speech are prior
restraints on speech. Accordingly, the government may not establish a system of censorship to
regulate speech in advance; redress to legitimate claimants lies not in suppressing the speech
before it is uttered but in compensating for cognizable harm subsequently suffered. Any system
of prior restraints of expression bears a heavy burden against its constitutional validity.
Only the most exceptional situations will overcome the heavy presumption of
unconstitutionality that prior restraints bear. Injunctions or censorship will be tolerated
exclusively when the unprotected speech is so inimical to the public welfare that traditional
remedies will be rendered inadequate. There can be no restraint predicated upon the surmise that
untoward consequences may result. Indeed, one Supreme Court justice believed that the express
language of the First Amendment prohibiting Congressional enactments which “abridg[e] the
freedom of speech or of the press” left “no room for governmental restraint on the press.”122
Another justice suggested that even an interim restraining order must be supported by proof that
the publication will “inevitably, directly, and immediately cause the occurrence of an event
121
This provision has been held applicable to the states through the due process clause of the
Fourteenth Amendment.
122
New York Times Co. v. United States (Douglas, J., concurring).
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kindred to imperiling the safety of a transport already at sea.”123
In 1971, THE NEW YORK TIMES began publishing a secret compilation of the history of
involvement in Vietnam from the U.S. Department Defense. The Supreme Court ruled that the
government had not shown the requisite justification for restraining future publication. As one of
the concurring opinions declared:
In the First Amendment the Founding Fathers gave the free press the
protection it must have to fulfill its essential role in our democracy. The press was
to serve the governed, not the governors. The Government’s power to censor the
press was abolished so that the press would remain forever free to censure the
Government. The press was protected so that it could bare the secrets of
government and reform the people. Only a free and unrestrained press can
effectively expose deception in government.124
3.
Subversive Advocacy and Seditious Libel
When governmental objectives are jeopardized by subversive advocacy, it initially would
appear defensible to exclude such speech from conventional First Amendment protections, either
by constructing a utilitarian argument for deeming such advocacy as beyond the scope of
“speech” or by rendering the test for tolerance of such speech sufficiently elastic to invalidate the
promotion of illegal conduct. Ultimately, however, a free society must recognize that freedoms
of speech and press are the matrix from which virtually all other freedoms flow.
Notwithstanding the preferred position that free speech is accorded in American society,
First Amendment rights do not unqualifiedly protect all expression. In order for governmental
limitations on speech to pass constitutional muster, however, they must satisfy a stringent test
and overcome the presumption of unconstitutionality that speech burdened because of content
bears.
Specifically, there must be a substantial governmental interest and a showing that the
prohibited advocacy was aimed at promoting the forceful overthrow of the government. Thus,
the government may not penalize advocacy of the use of force or of violation of law unless such
advocacy is directed to inciting or producing imminent lawless action and is likely to incite or
produce such action. In order to justify differential treatment of speech, the government must
demonstrate that the regulation is necessary to serve a compelling state interest and is narrowly
tailored to achieve that end.
4.
“Fighting Words” and Hostile Audiences
While speech may not be abridged even when it is patently offensive to the community,
certain expression may be prohibited when it intolerably interferes with the public peace. For
example, “fighting words” generally are deemed repugnant to First Amendment interests
123
New York Times Co. v. United States (Brennan, J., concurring).
124
New York Times Co. v. United States (Black, J., concurring).
CONCEPT PAPER ON MEDIA LAW
39
because they are intended, through their very utterance, to incite an immediate breach of the
peace. Such “fighting words” are subject to prohibition because their minimal social value is
deemed to be outweighed by the public interest in preserving order. To survive constitutional
scrutiny, however, regulation of “fighting words” may not be directed to any particular content
of speech, lest such regulation encroach upon protected views on disfavored subjects.
A corollary of these principles is that a speaker who does not employ specific “fighting
words” nonetheless may be subject to constitutionally-permissible prosecution if his or her
expressions produce imminent danger of uncontrolled violence by his or her audience. Again, to
be tolerated, regulation of such speech must be content-neutral and imposed on speech that
threatens immediate, uncontrolled harm.
5.
Symbolic Conduct
“Symbolic speech” refers to expression which incorporates conduct, such as the display
of a flag. First Amendment protections may extend to conduct that is undertaken to communicate
an idea. Regulation of such conduct is permissible when there is an important state interest
independent of the speech aspects of the conduct, and a less restrictive means is not available to
accomplish the regulatory purpose.
Thus, American jurisprudence has upheld prohibitions on draft card burning on the
ground that the governmental interest was not simply to suppress the communicative component
of the conduct but rather in the independent interest in facilitating the draft card system.
However, a prohibition on students wearing black armbands in schools to protest the Vietnam
War was deemed invalid on the ground that the government had no independent regulatory
interest in the prohibition; its sole interest was in denying the import of the conduct. A
prohibition on the desecration of the American flag likewise is invalid when it is expressive
conduct and devoid of actual or imminent breach of the peace. Underlying these conclusions is
the fundamental principle that speech may not be punished merely because society deems it
offensive or disagreeable, or even because the citizenry in question has failed to show proper
respect for the national emblem that tolerates its dissent.
6.
Access to Public Places
A society committed to free speech recognizes the right to express views in public places.
Certain types of public property have been traditionally associated with the exercise of free
expression. Streets, sidewalks, and parks have often been rendered ready forums for speeches
and demonstrations. Such forums may be subject to valid “time, place, and manner” regulations
that are content neutral; that is, where the regulation is not based on the subject matter of the
speech unless necessary to serve a compelling state interest and is narrowly drawn to achieve
that end. Further, the state must have a significant interest in any such restraint, such as
protecting residential privacy from picketing in front of a particular house. In addition, the
regulation must be narrowly tailored so as not to substantially burden speech. It also is
appropriate to consider whether alternative media are available for the protected expression.
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7.
Access to Government Information
Consistent with the promotion of unfettered flow of dialogue and information is access
by the public and the press to government information. One context in which access is of
particular significance is in criminal proceedings. The press traditionally has been deemed to be
the surrogate for the public and, therefore, should be admitted to criminal courts in order to
scrutinize the administration of justice. Exclusion of the press is justifiable only under very
limited, compelling circumstances; for example, the press may be denied access to a pre-trial
hearing on a motion to suppress illegally seized evidence when there are no reasonable
alternatives to protect the accused’s right to a fair trial, on the ground that reporting of
prejudicial evidence that would be inadmissible at the subsequent criminal trial might jeopardize
the fairness of the trial.
The government must tread cautiously when it seeks to restrain press reports of judicial
proceedings. Before such an injunction may interpose, the court must find that there is a clear
and present danger that pretrial publicity would threaten a fair trial. Mere speculation about
potential jeopardy to a fair trial should be deemed inadequate. Additionally, the imposition of
alternative measures, such as extensive voir dire of prospective jurors about their familiarity with
the case, must be found to be inadequate to preserve the defendant’s due process rights. Finally,
there must be a finding that, if an injunction were issued by the court, the rights of the accused
effectively would be protected.
8.
The Role of the Judiciary
In constructing a framework for freedom of expression, the paramount obstacle remains
defining the limitations that may be imposed. For free expression principles to prevail, the law
and legal institutions must be designed to support them. The legal process thus functions to
delineate, control, and sanction impermissible constraint upon these cherished rights. In
American jurisprudence, the judiciary functions in several ways to ensure that the government
does not encroach upon free speech.
First, the courts may define free speech to exclude certain types of expression so as to
permit abridgment. Such expressions typically may be categorized as libelous, obscene, or
“fighting words” speech.
Second, the courts have developed procedural techniques designed to evaluate regulatory
devices to ensure that rigorous standards are satisfied. For example, judicially-imposed
procedural safeguards help to ensure that prior restraints are imposed with constitutional vigor.
Thus, absent a showing that time is of the essence, an injunction will issue only after an
adversarial hearing upon notice to all interested parties. As a corollary, publications such as
books and films should not be seized for the purpose of destroying them or preventing their
distribution or exhibition unless a full adversarial hearing has been conducted and the
appropriate judicial determinations of impermissibility have been made.
In addition, the government may not impose sanctions upon speech when the proscribed
conduct is not delineated with sufficient clarity, rendering the legislation “void for vagueness.”
Such statutory proscriptions are not tolerated because they fail to adequately guide the officials
CONCEPT PAPER ON MEDIA LAW
41
charged with their enforcement. When these officials effectively are vested with excessive
prosecutorial discretion, society risks that such discretion will be exercised based on the content
of the speech.
Similarly subject to invalidation are statutes that could proscribe unprotected activity
under a more narrow scheme. When the potential sweep of the statute is “overbroad,” it will not
be countenanced. Such statutes not only motivate officials to discriminatorily institute
proceedings based on content, but they also risk chilling speakers for fear of prosecution.
9.
Conclusions
The essence of free speech and press principles lies in its checking function on
governmental abuses. To execute this function efficaciously, communicative speech must be
protected from restraints that proscribe or mandate content, even when such content seemingly
contravenes significant societal interests or thwarts governmental objectives.
B.
The Rights of the Media Versus National Security
In the best of all possible worlds, there would be no need to develop a system of law and
policy to create a balance between a media freely able to collect critical information and dispense it
intelligently to the public and the national security needs of a nation. The media would responsibly
report the news without breaching national security or weakening the nation in any manner. The
well-informed, concerned public, without which a democracy cannot survive, would, by virtue of the
information provided by the media, be able to intelligently determine which political figures would
be best able to lead the nation in the direction it should go and which issues the elected officials
should be supporting. In this world, dissent would never be confused with disloyalty and the line
separating investigation from persecution would never be breached. No one would question the
secrecy of certain information needed to protect the nation’s security, and no one would ever think
that the national security issue was raised to distract reporters from other, potentially politically
damaging, issues. Finally, should a dispute arise, a totally impartial court system would wisely
adjudicate; the decision would be respected and would be treated as if the courts had grasped onto a
universal truth.
However, the best possible world is a fantasy found in Voltaire’s CANDIDE. Unfortunately,
the ideal of the perfect balance between information gathering and dispersion and national security is
also just an idea.125 In this world, and even in this United States—a country whose governmental
philosophy and whose constitution were based upon the eighteenth century enlightenment’s belief
that a judiciary, legislature, and administrative branch, all “balancing” each other’s powers, produces
democracy—no consensus on how to create the perfect balance between an open free press and the
need to protect national security has been reached. Under the protection of the First Amendment of
the Constitution, a doctrine also a product of the “rational” thought of the eighteenth century, the
United States Congress is barred from promulgating any law that abrogates freedom of speech.
However, there are many pressures against “pure speech,” especially in the area of national security.
125
See B. SCHMIDT, JR., FREEDOM
Publishers 1976).
OF THE
PRESS VERSUS PUBLIC ACCESS (New York: Praeger
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AMERICAN BAR ASSOCIATION—CENTRAL AND EAST EUROPEAN LAW INITIATIVE
Relations between allied nations, for trade or for security purposes, for which trade is often a
component, often depend upon maintaining some aspects of the relationship hidden from public
scrutiny. The attempt to negotiate serious international agreements in any way other than in absolute
secrecy arose from the first of Woodrow Wilson’s Fourteen Points, which called for “[o]pen
covenants of peace openly arrived at.” Even in the era before missiles and fast jets, when the United
States’ national security was described as based upon geography, fish on two sides and weak
neighbors to the north and south, American foreign policy has been formed quietly and “sold” to the
American people in a public manner, with the public rational often having little or nothing to do with
the actual reason for the policy. Thus, a constant tension exists between the need to inform and the
need to dispense information to shape policy.
This raises an additional problem. While the ideology has stated that the United States is
made up of peoples of various backgrounds who “melt” into one unified culture, and these people
then respect the differences that remain, the differences have encouraged a variety of opinions about
what information should be concealed in order to protect the nation and its interests and what
information should be part of the protection of our nation and its boundaries. Thus, the decision to
cover a particular issue has resulted in major disagreements when one group of individuals found a
particular policy to be in the national security and another honestly dissented from that. The
information that the latter encouraged the media to cover and that the media did cover then was used
by many of those same individuals to sway the public against the policies cherished by the former
group and were considered by them to damage national security.126 This problem could be even more
acute in those nations that do not even have a philosophy, let alone a structure, of society that allows
for the tolerance of other, differing groups, be the differences of a political, a religious, or a national
nature. Thus, going into the process, there must be an understanding that differences between
peoples will be respected and every effort will be made to continue to respect the other even while
disagreeing with a proposal or an idea made by the other.
Another tension in the United States and other democratic countries exists between this need
for an informed, concerned public in a democracy and the obvious profitability of the media. This
means that media outlets could develop news and programming designed more to increase the
profitability of those controlling the media outlet than to intelligently disseminate information
needed to create an informed, involved public. This becomes an even more probable occurrence
when the entities dispensing the news not only depend upon commercial interests via advertising for
the revenue needed to exist but also are owned and operated by entities that could gain or lose profit
given the existence of particular national or international situations. Pressure applied by the
government or by financial supporters of the media could “chill” those who would produce stories
counter to particular interests. At the same time, the airing of a particular policy or piece of
information, perhaps supplied by an opposed insider, could destroy a beneficial governmental
policy. Should the media be owned and operated by the government, then that presents a situation
where the government could determine what would be the news covered and what would be ignored,
126
The relatively uncensored Vietnam War produced stories like Seymour M. Hersh’s on the My
Lai massacre that shocked the nation, see D. HALLIN, THE “UNCENSORED WAR”: THE MEDIA
AND VIETNAM (1986), and compare that to the U.S. led push of Iraq after it invaded Kuwait,
which was so tightly controlled and staged by the authorities that it started in time to be covered
“live” on the evening news.
CONCEPT PAPER ON MEDIA LAW
43
thereby using the media to advance or to hide issues concerning national security. The second
decision, then, should be a determination of who will control the media and how the media will be
economically viable yet not controlled or too dependent upon money from interests either interested
in censuring the content or interests wanting the most popular programming irrespective of the
content of the shows.
Once the above ground rules have been put into place, then the question of the coverage of
specific topics, like national security, can be raised. The first step in the creation of a balanced policy
that allows for the media to cover national security issues to an extent sufficient to educate the public
while not damaging the national security is to decide what constitutes national security and who
determines what does and does not fit into that definition. While this might sound obvious, in reality,
it is not clear what precisely is national security and how it should be protected.
For purposes of prosecution under the United States Espionage Act, national security has not
been defined.127 It has, however, been defined broadly by the courts.128 In Dunne v. United States,129
the Eighth Circuit Court of Appeals ruled that the term national security as found in 18 United States
Code Section 793 meant that a nation may protect the integrity of its armed forces and may prevent
the overthrow of its government by force, and it may, as means to those ends, punish utterances that
have a tendency to or are intended to produce forbidden results. This definition could be broadly
interpreted so that it covers almost any kind of a news story about the military, its leaders, or
governmental officials. Because it has been defined often, the courts, when asked to rule on the
question, have found the term national security to be not “void for vagueness.”130
Assuming that national security means the protection and preservation of the nation-state,
then the question becomes what information is necessary to preserve this. Perhaps, given the
newness of democracy in many countries and given their historic unfamiliarity with the concept of
accepting and working with individuals whose backgrounds and or thoughts are different, the first
step in the establishment of a relatively free press should be a government, business, citizen,
consumer, reporter, and media owner and editor conference to define concepts such as national
security and free speech. If a common understanding as to what would be accepted for both
definitions could be arrived at, the next step would be to develop the laws and the rules under which
the media could operate sufficiently to create an informed, concerned public while still respecting
what is defined as the national security interests of the country. In that way, the balance between
media and national security could be created.
Once this group has defined what is national security, then it should attempt to define what
documents or information could cause immediate harm but could be released later as part of the
127
See 18 United States Code Section 793.
128
See United States v. Semaan, 594 F2d 1215 (8th Cir. 1979), cert. denied, 441 U.S. 965 (1979);
United States v. Truons Dinh Hung, 629 F2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1144
(1982).
129
130
138 F2d 137 (8th Cir. 1943), cert. denied, 320 U.S. 790, rehearing denied, 320 U.S. 814.
See, e. g., U.S. v. Morison 844 F.2d 1057 (4th Cir. 1988), rehearing denied (en banc), cert.
denied, 488 U.S. 908.
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historical record and what, if any, documents or information should always be hidden from view.
Clearly, the release of a photo with a description of the latest, most modern weapons to an
international magazine specializing in the description of weapon systems would be considered a
breach of national security. However, should the discussion of the existence of such a weapon, or the
dropping from an apartment building of a paper saying the use of any weapons in war is bad, be
censored? If a definition of what can and cannot be described and discussed can be arrived at, then
all will know within which boundaries the press can legally operate. The group should also
determine what happens when and if a journalist strays outside of the boundaries. Generally, this
should not be considered treason and should not be treated the same as the act of spying, or
obtaining documents and giving them, for money or for ideology, directly to another country’s
agent.131 It also seems logical that such a group will develop a law that will distinguish between the
manner in which a spy gathers information for purposes of selling that information to another
country and the way a journalist gathers information. Because there is a delicate balance between the
need for information and the need for secrecy to protect the national interest, and because this
balance depends upon internal moral considerations as well as external events both inside and
outside of the nation, it is critical that guidelines be established and accepted by all parties.
It is important for journalists and others to be able to obtain key documents that explain
policy. A “Freedom of Information Act,” similar to the one that became part of United States
federal law thirty years ago and was just updated to provide for computer and e-mail documents
and disks,132 could then specify what could and could not be released, when it could be released, and how to
obtain it.
The United States Supreme Court stated that “[f]ree societies prefer to punish the few who abuse the
rights of speech after they break the law than to throttle them and all others beforehand.”133 There is a heavy
presumption against the constitutional validity of a prior restraint on speech because it is believed that prior restraint
“freezes” speech.134 If the policy advanced by the government differs from that publicly enunciated by the
government, the United States courts have protected the right to publish without prior restraint but have left open
the possibility of future criminal prosecution for the dispersion of information.135 Thus, while it is important that
journalists have access to the documents, there should be built into the civil procedure laws of the courts a power to
enjoin, which could be used to stop the publication or the airing of material that would endanger the national
security.136 Although keeping information out of the public domain could be critical to protect national security, the
131
See 18 United States Code Section 795.
132
5 United States Code Section 552(b)(3).
133
Southeastern Promotions LTD v. Contad 420 U.S. 546 (1975).
134
See Near v. Minnesota.
135
See New York Times Co. v. United States; Chandler v. Florida 449 U.S. 560 (1981).
136
See United States v. Progressive, Inc. 467 F. Supp. 990 (W.D. Wis. 1979) dismissed without
opinion, 610 F2d 819 (7th Cir. 1979). When “The Progressive” attempted to publish an article
stressing the ease with which documents about the hydrogen bomb could be obtained, the court,
in the first instance of prior restraint against a publication, enjoined its publication for six
months. Then, it became clear that the magazine was not publishing anything that was not easily
available from many other sources. See Knoll, The H-Bomb and the First Amendment, 3
WILLIAM & MARY BILL OF RIGHTS JOURNAL 705 (1994).
CONCEPT PAPER ON MEDIA LAW
45
availability of such an option would make the court system the final arbitrator of the impact of certain information
on national security when a controversy arose. Furthermore, even a temporary restraint on expression could result
in irreparable injury.137 For example, should a journalist find information about the existence of a plot to use a box
of cigars to poison another leader, the publication of such information prior to cigars arriving at the home of the
leader could prevent the act and save a life. Conversely, if the intended smoker had been Hitler and the year 1940,
would the publication of an article about the intended use of the cigars have harmed national security or have been a
greater harm to it than five more years of Hitler alive?
Then, the manner in which the information is covered or not covered influences public
perception about the policy that then might strengthen or weaken the policy itself. Finally, in times
of a national emergency, information traditionally has become more controlled by the government.
The group defining what is national security could also determine when a “gag” order, an order that
forbids the discussion of certain issues, is necessary to protect national security. Again, the question
becomes what is national security and what occurs when the issue involves a borderline national
security interest or, in fact, is only casually related to national security but is being used as a means
to divert attention from another politically harmful situation.138
The fairness doctrine, which evolved from a series of decisions of the Federal
Communication Commission (“FCC”), based on the Radio Act of 1927 that said radio stations were
to operate in the public interest, and which became explicit in 1949, pointed out that broadcasters
had an “affirmative duty” to encourage the presentation of contrasting views. After a series of FCC
decisions, the fairness doctrine was clarified and strengthened in 1964, in a federal regulation called
the “Applicability of the Fairness-Doctrine in the Handling of Controversial Issues of Public
Importance.”139 Along with this came the duty to cover issues of obvious importance to the
community. However, the fairness doctrine, which the FCC threw out in 1987, and the conflicting
views that the doctrine mandated, were seen by some as allowing for the interjection of a majority
view seen by critics of the doctrine as overwhelming the view of the minority presented at a
particular time. Additionally, the fairness doctrine was more applicable to electronic media than to
the print journalists.
The next question becomes the treatment of how information that might be considered a
breach of national security is obtained by the media and how those reporters who obtain the
information should be treated. In the United States, many states have adopted “shield laws” to
protect their reporters after the courts began to hold that reporters must disclose the names of their
sources. Then, after the United States Supreme Court found it not to violate the Fourth Amendment
prohibition of unreasonable searches to use a search warrant to search a student newspaper for
137
Nebraska Press Association v. Stuart, 427 U.S. 539 (1976).
138
One thinks of the incident in October 1973 when American troops were placed on alert
because of a fear that the USSR would protect Egypt against Israel. Dobrinyn, in his recent book,
claims that Kissinger apologized to him for the alert both before and after the incident, telling
him that it was, in reality, an attempt to draw attention away from the “Saturday Night
Massacre” that had taken place five nights earlier and that increased the anti-Nixon sentiment
begun when the Watergate burglars were caught in the Democratic Party’s National
Headquarters.
139
29 Federal Register 10415, adopted July 1, 1964, printed July 25, 1964.
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background documents, the Privacy Protection Act proposed to mandate that law enforcement
officers obtain subpoenas that could be contested in court, instead of search warrants, when
journalistic documents are involved. The question of how much of the information forming the basis
of an article or electronic media piece could be obtained becomes one for an impartial court system
to determine.
The advent of cable and, even more recently, the Internet have opened new balancing
problems for those concerned with the freedom of speech and the protection of national security. If
information that breaches national security is obtainable easily on the Internet, should this
information be censored and, if so, to what extent? This also should be defined by the group when it
discusses what constitutes national security and what constitutes an infringement of their definition
of national security.
Without question, a democracy depends upon an informed, consenting public that has agreed
to disagree and to build a consensus for forward motion out of the discussion. Without such a
society, the media in all probability would be used to advance the interests of those in power or those
trying to get into power, with issues concerning the national security being only a small part of this
larger purpose. In a democracy, debate on public issues should be “uninhibited, robust, and wideopen,” which may include “sometimes unpleasantly sharp attacks on government and public
officials.”140 It also depends upon a society that understands and respects the need for secrecy in
order to preserve some aspects of national security. However, at the same time, national security
often depends upon secrecy. As Oliver Wendell Holmes wrote in THE COMMON LAW, “the character
of every act depends upon the circumstances in which it is done.” In other words, “the most stringent
protection of free speech would not protect a man in falsely shouting fire in a theater and causing
panic.” Therefore, it is a balance between the two, with a leaning toward openness if it is balanced in
any direction at all, that allows a democracy to survive.
C.
Media Law in Central and Eastern Europe: Availability of Public
Information and Regulation of New Media
In analyzing the relation of the media to national security, it is important to emphasize two
issues: availability of public information, and conversely its protection from disclosure, and
regulation of “new media,” such as providers of Internet services. This section of the concept paper
addresses these issues against background information on regulation of press and media, official
control of press and media, licensing of press and media entities, and allocation of resources by the
government. For convenience, the word media includes the print press, electronic media such as
television and radio, and new media such as the Internet.
1.
Access to Public Information
The law of access to public information is intimately related to the character of the media.
Much media activity relates to public affairs, and public affairs cannot be reported on without using
information constituting government decisions and information about the governmental process. If
the government completely controls what government information is available to the media, it
140
New York Times Co. v. Sullivan.
CONCEPT PAPER ON MEDIA LAW
47
controls what the media may say about government. Accordingly, the United States and Western
Europe afford some measure of legal entitlement to government information. In the United States,
this entitlement is codified in the Freedom of Information Act and in similar state statutes in almost
every state. In Sweden, the entitlement is guaranteed by the constitution.141
Public access law everywhere, however, recognizes that the state may have a legitimate
interest in denying access to certain classes of information.142 The United States Freedom of
Information Act contains eight enumerated exceptions, protecting from disclosure national security
information,143 internal agency personnel rules and practices, information that would invade personal
privacy,144 information that would compromise commercial secrets,145 information clothed with
executive privilege, the disclosure of which would chill candid internal deliberation and advice
giving,146 information explicitly protected from disclosure by other statutes,147 information that would
compromise criminal investigations and prosecutions,148 information on the condition of financial
institutions,149 and geological and geophysical information.150 Under United States law, the
exceptions are construed strictly, there is a presumption in favor of disclosure, and agencies resisting
disclosure bear the burden of establishing coverage of information by one of the enumerated
exceptions.151 Under some state laws, but not under the federal Freedom of Information Act, those
seeking access to government information must demonstrate a “legitimate” interest in accessing the
information, and some states deny access when the interest is purely commercial. Such a limitation
places a significant burden on requesters152 and represents a barrier to press access and access by
141
Constitution of Sweden 1989, Instrument of Government, chapter 2, article 1 (2)
(guaranteeing freedom of information); Swedish Freedom of the Press Act, chapter 2, article 2
(guaranteeing access to official documents).
142
See, e.g., Swedish Freedom of the Press Act, chapter 2, article 2 (authorizing restrictions on
access necessary to protect security of realm, central finance policy, control of public authorities,
criminal prosecution, public economic interest, protection of privacy, and preservation of
species).
143
5 United States Code Section 552(b)(1).
144
5 United States Code Section 552(b)(6).
145
5 United States Code Section 552(b)(4).
146
5 United States Code Section 552(b)(5).
147
5 United States Code Section 552(b)(3).
148
5 United States Code Section 552(b)(7).
149
5 United States Code Section 552(b)(8).
150
5 United States Code Section 552(b)(9).
151
John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (denying access to law
enforcement records under general principle).
152
See Sean E. Andrussier, The Freedom of Information Act in 1990: More Freedom for the
Government; Less Information for the Public, 1991 DUKE LAW JOURNAL 753 (1991) (criticizing
drift in lower court decisions to weigh public interest in favor of disclosure in evaluating some
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AMERICAN BAR ASSOCIATION—CENTRAL AND EAST EUROPEAN LAW INITIATIVE
those who seek to extend the reach of public information by republishing it.153
Another potential limitation under some state law, which also has been hinted at by some
concurring and dissenting opinions by justices of the United States Supreme Court, would limit
access to types of information that reveal the operations of government and would deny access as a
matter of right to information that is of a commercial nature.154 The problem with this distinction is
that much of the information that represents government output, such as court decisions and
legislative enactments, have commercial value. Some other information that appears to be simply a
commercial product produced by government, such as maps, charts, and land records, are necessary
in order for citizens to participate meaningfully in governmental proceedings, for example relating to
zoning and other land use decisions.
The European Commission currently is engaged in drafting a Green Paper on access to
public information, under a mandate of the Maastricht Treaty requiring that the functions of
European governmental institutions become more transparent. While the exact content of the Green
Paper is not known, there is broad agreement on the idea that European law and national law within
Europe should provide a legal entitlement to access government information, that exceptions to such
an entitlement should be enumerated and strictly construed, that access rights should extend to
electronic formats, and that there should be some appeal mechanism when access is denied. There is
less agreement on the question whether a legitimate interest must be shown and whether commercial
motives might disqualify a requester or result in conditions being imposed on access.
2.
Licensing and Regulation of Media
United States law historically has distinguished fairly sharply among publishers,
broadcasters, and common carriers. Publishers are privileged from licensing and most other contentoriented regulation by the First Amendment to the United States Constitution.155 In the United States,
the right to freedom of speech and a free press are principles whose source derives from the
Constitution and Supreme Court opinions defining the limits of these rights. Miami Herald v.
Tornillo outlines the limits of governmental control over newspapers. In this case, the Miami Herald,
a major metropolitan newspaper, refused to print replies written by Tornillo to editorials that were
critical of Tornillo’s candidacy for state office. Tornillo brought suit under Florida’s “right of reply”
statute, which grants a political candidate a right to equal space to answer criticism and attacks on
his or her record by a newspaper and makes it a misdemeanor for the newspaper to fail to comply.156
The Supreme Court held that the statute violated the First Amendment guarantee of a free press. In
its decision, the court held, “[a] responsible press is an undoubtedly desirable goal, but press
FOIA requests, as act contemplates categorical (unconditional) disclosure of certain categories of
information).
153
See Henry H. Perritt, Jr., Sources of Rights to Access Public Information, 4 WILLIAM & MARY
BILL OF RIGHTS JOURNAL 179 (1995).
154
See generally HENRY H. PERRITT, JR., LAW AND THE INFORMATION SUPERHIGHWAY Chapter
11 (1996) (analysis of interpretations of state FOIA statutes).
155
See Miami Herald v. Tornillo, 418 U.S. 241 (1974).
156
Miami Herald v. Tornillo, at 241.
CONCEPT PAPER ON MEDIA LAW
49
responsibility is not mandated by the Constitution and like many other virtues it cannot be
legislated.”157 The court thus affirmed that the government has no authority in determining the
content of newspapers. The court left these decisions to the newspapers. “The choice of material to
go into a newspaper, and the decisions made as to limitations on the size and content of the paper,
and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of
editorial control and judgment.”158
Broadcasters and common carriers have a different legal status in the United States. They
have been, until recently, subject to licensing requirements and detailed service and price
regulations. The principal justification for broadcast regulation was scarcity of spectrum. The
principal justification for common carrier regulation was natural monopoly. Since the 1970s, both
justifications have been questioned, and a movement toward deregulation culminated in the
Telecommunications Act of 1996, which significantly reduced the regulatory control in both
broadcast and common carrier industries. Meanwhile, cable television has arisen as a separate
industry, and the Internet has attracted public excitement as a clear supplement, and potential
replacement, for older technologies in all of the four industry segments.
Western European countries are more diverse in their approaches to publishers. In Germany,
laws exist that can serve to control speech printed in newspapers and carried by other media. These
laws exist as a result of the Holocaust. Language in the German criminal code criminalizes hate
speech inconsistent with “the dignity of the human personality developing freely within social
community.” These laws are aimed to prevent speech that incites hatred.
On the other hand, Western Europe has embraced deregulation of the telephone industry at
least as aggressively as the United States, with the European Commission pressing to open up
telecommunications markets, which historically not only were heavily regulated but usually
dominated by a single state-owned provider.159 Broadcast markets have been slower to open up in
Europe, with national governments clinging to traditional regulatory limits on broadcasters to
promote cultural and national identity purposes160 as well as for purely economic motives.
Nevertheless, the European Commission has pushed to open up broadcast markets as well,161 and the
157
Miami Herald v. Tornillo, at 254.
158
Miami Herald v. Tornillo, at 258.
159
Council Directive 92/44/EEC of 5 June 1992 on Application of Open Network Provision to
Leased Lines, Doc. No. 392L0044, 1992 O.J. (L 165) 27 (applying to transparent transmission
capacity between network termination points but excluding switched services); Commission
Directive of 28 June 1990 on Competition in the Markets for Telecommunications Services,
Doc. No. 390L0388, 1990 O.J. (L 192) 10.
160
Germany, for example, requires public broadcasters to adhere to a rule of “internal pluralism.”
Monroe E. Price, The Market for Loyalties: Electronic Media and the Global Competition for
Allegiances, 104 YALE LAW JOURNAL 667, 671 (1994); see also Price, at 678-670 (discussing
struggle of Dutch and Belgians to retain control over television broadcasting despite European
Union liberalization of markets).
161
See Council Directive 89/552 of 3 October 1989 on Television Without Frontiers, 1989 O.J.
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European Court of Human Rights has found, in Article 10 of the European Convention on Human
Rights and Fundamental Freedoms, a right to receive information from a free print press and from
radio and television.162
In Eastern Europe, television and cable markets have been liberalized, although there still is
an uneasy relationship in most countries between state-owned outlets and new private-sponsored
competitors.163
3.
New Media
The Internet itself historically has not been subject to regulation in the United States or in
Western Europe. In general, no licenses were required to establish a connection to the Internet, and
the nature of the technology is such that one can provide most other Internet services as long as one
has a connection. In other words, a connection is necessary to be a consumer, and one can become a
provider of content or connection services to others over the same connection. This is unlike any of
the media technologies. One cannot become a television or radio broadcaster simply by possessing a
radio or television receiver; one cannot become a telephone company by having a telephone; one
cannot become a cable service provider by having a cable connection; and one cannot become a
newspaper publisher merely by subscribing to a daily newspaper.
New technologies, exemplified by the Internet, not only occlude the distinction between
consumers and suppliers of communications service they also erode the boundary between content
and conduit. When one operates a World Wide Web site, one is providing both a communications
medium for the packets and the connections that underlie Web transactions, and one also is
publishing content. Relatively few of the facilities that underpin the Internet qualify as pure
communications facilities under the FCC’s traditional test to distinguish regulated communications
service from unregulated information services.164
MIT political science professor Ithiel DeSola Pool, in his seminal book TECHNOLOGIES OF
FREEDOM, anticipated the collapse of the justifications for differential regulatory treatment of
publishing, broadcast, and common carriage, but he did not anticipate the profoundly different
technological and economic characteristics of the Internet, which reduce even further the traditional
justifications for regulations.
(L 298) 23.
162
Groppera Radio A.G. v. Switzerland12 Eur. Ct. H.R. (ser. A) at 321 (1990); Autronic A.G. v.
Switzerland, 12 Eur. Ct. H.R. (ser. A) at 485 (1990).
163
See generally Anne Moebes, Channels of Communication are Opening in Eastern Europe, 10
UNIVERSITY OF MIAMI ENTERTAINMENT AND SPORTS LAW REVIEW 1 (1993).
164
Section 4(43) of the Communications Act defines telecommunications, the key term
circumscribing FCC regulatory authority as “transmission ... without change in the form or
content of the information as sent and received.” Packet switched networks such as the Internet
do not qualify under a strict interpretation of this language.
CONCEPT PAPER ON MEDIA LAW
51
In Turner Broadcasting, Inc. v. FCC,165 the Supreme Court of the United States emphasized
that market structure analysis should be a part of the inquiry in justifying government regulation of
communications media. When many competitive alternatives are available in the natural market
structure, there is less justification for the government to regulate in order to assure that a diversity
of viewpoints are able to reach markets. (Of course, if national policy is to limit diversity, a
competitive market structure may be the evil to be avoided).
This mode of scrutinizing the justification for regulation received additional emphasis in the
three-judge court invalidation of the Communications Decency Act provisions of the 1996
Telecommunications Act.166 The competitive character of the Internet both made it more difficult to
regulate content and also made it less necessary because diversity facilitates consumer choice.
The more general question of whether the Internet should be subjected to comprehensive
regulation has barely surfaced, although some early skirmishes are apparent in the context of an FCC
proceeding launched by a telephone company challenge to Internet telephony.167 Most people
assume that the Internet, a new technology not historically subjected to licensing or service and rate
regulation, will remain unregulated as the regulatory blanket is being removed from older
technologies to which it historically was extended.
Nevertheless, regulation of the Internet is not impossible, and some regimes, most notably
that of China, have launched aggressive regulatory programs aimed at limiting kinds of information
that can flow through the Internet.168 German hate-speech laws have been applied to Internet
newsgroups, in cases involving Compuserve and other Internet service providers.169
Because regulation is an option, it is appropriate to explore the justification or absence of
justification for regulating the Internet. This is germane to any assessment of media regulation
because the Internet is not only a communications medium, it also is a publishing and broadcast
platform that already represents a commercially attractive alternative to more traditional
technologies for publishing and broadcasting.
This paper noted earlier that the traditional justification for regulation of broadcasting was
165
Turner Broadcasting Systems, Inc. v. FCC, 114 S.Ct. 2445 (1994).
166
ACLU v. Reno, 929 F.Supp. 824 (E.D. Pa. 1996).
167
Federal Communications Commission CC RM No. 8775;
http://www.fcc.gov/Bureaus/ Common_Carrier/WWW/hottopic.html#acta.
available
from
168
Pamela Mendels, Worldwide, Internet Restrictions Are Growing, NEW YORK TIMES,
September 10, 1996 (Cybertimes edition) (reporting restrictions in China, Singapore, Germany
and Britain); Seth Faison, China Issues Rules to Control Internet, NEW YORK TIMES, February 5,
1996 (Cybertimes ed.) (describing system for registering with government for Internet
“subscription”).
169
Nathaniel C. Nash, Germany Moves Again to Censor Internet Content, NEW YORK TIMES,
January 29, 1996 (Cybertimes ed.) (describing successful efforts by German prosecutors to
induce Internet service providers to remove or block access to “hate speech”).
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spectrum scarcity. Because there were only so many frequencies available, the government had to
allocate them to avoid congestion and interference that would make effective use of any frequencies
impossible. One to whom a frequency was allocated by the government held it as a kind of trust,
burdened with a public service obligation and occasional obligations to serve as a conduit for others’
information. Spectrum scarcity is not associated with the Internet. Capacity in the Internet is
determined not by the number of frequencies available in the electromagnetic spectrum but by the
numbers of wires, optical fibers, and the capacity of computers called routers, all of which can be
added to the Internet essentially without limit. There is, therefore, no justification in traditional terms
for subjecting the Internet to broadcast-type regulation.
Common carrier regulation was justified traditionally on natural monopoly grounds. The
same justification applies to cable television. Natural monopoly exists when the economies of scale
and other economic characteristics of a technology are such that, at the anticipated level of demand,
there is room for only one supplier. That supplier always can produce at a lower cost than any
competitors, thus eventually driving them from the market.170 The Internet does not possess the
characteristics of a natural monopoly and, thus, lacks the traditional justification for common carrier
regulation. There might be arguments that something like common carrier regulation is necessary to
assure access to critical Internet facilities, but there will always be a number of competitive
alternatives to anyone wishing access, thereby undermining the argument for a legal access
requirement—at least in the absence of anti-competitive collusion or monopolization conduct that
produces criminal or civil liability under competition law in the United States and Western Europe.
In many parts of Central and Eastern Europe, the main problem is how to extend the reach of
all media and communications technologies. One extremely good way to do that is to extend the
reach of the Internet. Internet access depends upon cheap and easy connections to Internet service
providers. The economic barriers to entry as an Internet service provider are low; it is an archetypal
small business. Accordingly, the best regulatory strategy to encourage extension of the Internet is
one of abstention—allowing free entry into the Internet service provider market and removing any
artificial barriers to access to the telecommunications infrastructure. In particular, such a strategy
avoids surcharges for telephone lines to be used for data communications rather than voice
communications, avoids any licensing for offering Internet connections, and makes international
connections available without discrimination against Internet service providers.
That leaves one more justification for regulation of new technologies: the need for content
regulation to protect minors and other vulnerable populations from pornographic, indecent, or
inflammatory information. In the United States, the First Amendment permits content regulation
only when it is justified by a compelling state interest and when it is narrowly tailored.171 That makes
it difficult in the United States to justify content regulation except when it is aimed at pornography
or at protecting minors.172 The legal context is significantly different in Europe. There, prohibition of
hate speech is a mainstay of media regulation. Indeed, the international covenant on human rights
170
See generally Henry H. Perritt, Jr., LAW AND
(1996) (analysis of justifications for regulation).
171
ACLU v. Reno, 929 F. Supp. forthcoming.
172
ACLU v. Reno.
THE INFORMATION
SUPERHIGHWAY chapter 7
CONCEPT PAPER ON MEDIA LAW
53
legitimates limitations on hate speech.173 Regulation aimed at limiting or excluding hate speech is
problematic, however. Hate speech may be defined so broadly as to suppress much communication
simply because it challenges those in political power. Alternatively, the methods used to exclude
even narrowly defined hate speech may be such that they suppress or discourage many other kinds
of admittedly legitimate communication. The analysis of the Internet undertaken by a special threejudge court striking down the Communications Decency Act, though based on the First Amendment,
more generally probes the relationship between the new media technologies and the possibility of
excessively broad impact of content regulation. The court’s conclusion is that the inherent
characteristics of Internet technology make it extremely difficult, if not impossible, to undertake
content regulation without chilling a significant portion of legitimate dialog.
Also, the Internet is inherently more democratic than older technologies because it affords
access to the world community at a fraction of the cost required to set up a newspaper, a broadcast
station, or a telephone company. The Internet, therefore, is an important tool for building free
societies. Analysis of regulatory alternatives for the Internet must be vigilant lest Internet regulation
be imposed for the main purpose of suppressing free expression and development of free societies.
IV.
Protection of Journalists’ Sources
A.
Guaranteeing the Rights of Journalists to Gather News and to
Protect Confidential Sources and Information: Considerations for
Emerging Democracies
1.
Introduction
When considering the question of how best to protect the rights of journalists to gather
news and to maintain the confidentiality of their sources and unpublished materials, a legislative
drafter faces something of a dilemma. On the one hand, what may be characterized as the
“American” view holds that the best press law is no law, apart from a simple statement in the
constitution that the government shall do nothing to abridge freedom of speech or of the press.
Such an approach is based on the belief that the interests of a democratic society are best
advanced when the press enjoys the same protections, and can be subjected only to the same
restrictions, as would apply to any other citizen under laws of general applicability.
On the other hand, it may be appropriate for the government to recognize, through
concrete legislation, that journalists do perform a unique and valuable function in a democratic
society—acting as the principal conduit of information to the public. Accordingly, establishing
special “rights,” such as rights of access to information and news events, or testimonial
privileges, may be necessary, particularly in countries where a code-based legal structure
requires that rights be stated affirmatively in order for them to be legally cognizable.
Each approach has both strengths and weaknesses. The success of the American view
during the past two hundred years owes much to an independent judiciary, operating in a
173
International Covenant, Article 20(2) (“Any advocacy of national, racial or religious hatred
that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”)
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common law system, that has steadfastly upheld the free press principles embodied in the First
Amendment to the United States Constitution against assaults from the executive and legislative
branches of the federal government and the fifty states. However, ironically, in recent years that
same judiciary has grown reluctant to recognize rights not explicitly delineated by the First
Amendment and has instead invited legislatures to draft “corrective” legislation to create
whatever statutory rights they deem appropriate. This has been the case particularly in the
volatile area of reporter’s privilege.174
The legislative creation of statutory rights can also be problematic. However wellintentioned protective provisions may be, the “rights” they create, almost inevitably, will be
balanced by concomitant “responsibilities,” “obligations,” or “duties.” The latter provide
governments with an enforcement vehicle by which to exert control over the editorial processes
of the media, raising the potential for abuse. In a democracy, government is subject to change by
popular vote, so any promise by one government not to enforce such provisions, or to interpret
them liberally, may not be honored by a subsequent one.
Draftsmanship can also be an issue. Even the most carefully-drawn legislation attempting
to provide exhaustive laundry lists of rights, or to delineate in detail the precise types of
activities or persons subject to a law, invariably comes up short as changes in technology or
media practices render the statutes obsolete. Judges are placed in the awkward position of
choosing between interpreting statutes expansively, inferring concepts or language to reflect the
imagined intent of the drafters (perhaps many years after the enactment of the statute), or reading
the statute so literally that it is reduced to nonsense.175
The challenge in any democracy is to find a way to protect press freedom by ensuring an
unfettered flow of news and information. At a minimum, the media must be guaranteed the same
rights and privileges as anyone else. It may be appropriate to provide enhanced rights to the
media in order to advance the goal of achieving a free press and a well-informed electorate. Such
rights must not be conditioned on the performance of government-mandated or enforced duties,
however. In a free society, the media must be accountable for their actions, but only to their
readers, listeners, and viewers, not to the government.
2.
Newsgathering Rights
Article 10 of the Universal Declaration of Human Rights declares that everyone has the
right “to seek, receive and impart information and ideas through any media and regardless of
frontiers.” Article 19 of the International Covenant on Civil and Political Rights recognizes a
similar right. In 1972, the United States Supreme Court stated that “[w]ithout some protection
for seeking out news, freedom of the press would be eviscerated.”176 In the United States,
subsequent case law has held that the news media enjoy special constitutionally-based rights of
174
See, e.g., Minnesota v. Turner, No. C5-95-2668 (Minnesota, July 18, 1996); Idaho v.
Salsbury, No. 21645 (Idaho, August 28, 1996).
175
See, e.g., Storer Broadcasting v. Wayne County Court, 810 F.2d 580 (6th Cir. 1987).
176
Branzburg v. Hayes, 408 U.S. 665 (1972).
CONCEPT PAPER ON MEDIA LAW
55
access to, for example, criminal judicial proceedings and transcripts.177 However, on the whole,
the American legal model has presumed that the journalist enjoys no greater rights of access than
any other member of the general public, in the absence of special statutes. This means that
journalists may be subject to criminal prosecution, or may be sued for civil damages, if they
physically trespass onto private property or engage in surreptitious surveillance, even in pursuit
of a legitimate story, if such conduct is generally prohibited by law. It also means that, if the
affirmative access rights of the public are curtailed, those of the journalist may be as well.
For example, a controversial topic in the United States involves media access to prisons
and prisoners. According to twenty-year-old precedent, the media enjoy no special constitutional
rights of access beyond those of the general public.178 This has been interpreted to mean that
journalists have no right to demand to interview a specific inmate, especially if prison officials
can credibly assert that granting the interview would allow that prisoner to gain a degree of
notoriety that would disrupt prison security. Allegedly in response to sensational coverage of
high-profile criminals by “tabloid” media outlets, prison officials in several states have hastened
to adopt regulations allowing them to clamp down on media access, particularly to notorious
prisoners, in some cases discriminating against organizations identified as “infotainment
publications and broadcasts.”179 This type of governmental intrusion into the editorial process is
clearly deleterious to a free press. However, almost any government entity that has the authority
to exercise such power will find it hard to resist clamping down on news reports that it deems
“irresponsible,” “sensational,” or “detrimental” by curtailing media access to the underlying
information sought.
One way to avoid or at least minimize this problem is through statutes creating an
entitlement of media access to news events. For example, the states of California and Ohio have
statutes specifically addressing media access to emergency scenes. The California law prohibits
police from barring journalists from disaster scenes in most cases.180 The Ohio disorderly
conduct statute, which prohibits interference with police at emergency scenes, states that the law
cannot be used to limit access or deny information to journalists.181
Similar rights might be codified to ensure media access to, for example, legislative
sessions, deliberative meetings of regulatory bodies, or court proceedings. Another way to
address this would be through laws of general applicability that acknowledge the inherently
public nature of government activities and the presumptive right of the public to attend. This
approach has been used extensively in the United States, where, for example, the laws mandating
that meetings of executive branch agencies be open (“Sunshine Laws”) make no distinction
between the right of the public and the right of the press to be present. Recognition of this
177
See, e.g., Press-Enterprise v. Superior Court, 464 U.S. 501 (1984); Richmond Newspapers v.
Virginia, 448 U.S. 555 (1980).
178
Pell v. Procunier, 417 U.S. 817 (1974).
179
Indiana Deptartment of Correction, Administrative Procedure No. 00-03-101 (1995).
180
California Penal Code Section 409.5 (Deering 1985 and Supp. 1989).
181
Ohio Revised Code Annotated Section 2917.13 (Anderson 1987 and Supp. 1988).
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fundamental entitlement is crucial to development of a truly participatory democracy.
It is beyond the scope of this paper to discuss the drafting and enforcement of open
records and open meetings laws or of the public’s right of access to court proceedings. However,
it is worth underscoring that public trust of and confidence in government institutions are
directly related to the amount of access permitted. All individuals, including representatives of
the news media, should have the right to inspect and copy agency and court documents, and all
such materials should be presumed public unless specifically exempted. Exemptions should be
very narrowly tailored and, whenever possible, should be discretionary, meaning that bureaucrats
should have the option of releasing specific information, even if it could be legally withheld,
whenever the public interest outweighs the competing secrecy interest. Typical secrecy
provisions that occur in open government laws in the United States and Europe include
exemptions for national security, personal privacy, on-going law enforcement investigative files,
trade secrets, and predecisional documents. Materials containing both exempt and non-exempt
material should not be withheld in their entirety; whatever can be disclosed should be, in
redacted form if necessary. The burden should always be on the government to prove that
secrecy is essential.
“Sunshine” laws should also presume that government agencies will do their business in
public, which is usually interpreted to mean all meetings of a quorum of a multimember group.
Agencies should be required to give advance notice of all meetings, including “emergency”
meetings, and to publish or post agendas in advance. Agencies should be required to keep
detailed minutes or transcripts of the meetings, even those that can legally be closed to the
public.
As with open records laws, open meetings laws should presume that government bodies
will take formal action only in public. Limited exemptions that may be appropriate might include
meetings dealing with personnel matters, collective bargaining, and discussions about pending
litigation with agency attorneys. Agencies should be required to follow specific procedures
before closing a meeting to the press and public, giving precise reasons for the closure and with
the vote to close taking place in public. Only that part of the meeting dealing with exempt topics
should be closed.
Before a courtroom is closed to the press and the public, the presiding judge should hold
a hearing on the need for secrecy and should allow media representatives and members of the
public to contest the closure. If a compelling interest is at stake, such as a criminal defendant’s
right to a fair trial, the judge should consider whether other options short of closure might
suffice. These options might include moving the trial to another location, postponing it, or
sequestering jurors. If no alternative would protect the compelling interest, the judge should
tailor the order for closure as narrowly as possible and should include written findings to support
the decision. It would rarely, if ever, be appropriate to close an entire trial, and categorical
secrecy provisions for certain types of proceedings (such as juveniles, domestic relations, and
sex crimes) should be adopted with caution. In recent years, for example, many of the states in
the United States have reexamined their practices of closing all juvenile delinquency proceedings
to the press and public in response to concerns about the disposition of cases involving minors
who commit violent crimes. Many of these states have recast their statutes governing access to
CONCEPT PAPER ON MEDIA LAW
57
such proceedings to create a presumption of openness, at least for certain types of crime.
Achieving a proper balance may not be easy, but it is worth considering carefully whether the
need for secrecy in every case truly outweighs the right of the public to see that justice is done.
In situations where, because of space or security concerns, distinctions between
journalists and the general public seem to be justified—such as in a high-profile trial, where only
limited seating is available—it may become necessary for governments to utilize some kind of
accreditation process. This should be approached with care.
For example, a draft press law circulated in Belarus in 1994 provided that editorial
boards could apply to state bodies for accreditation. Accredited journalists would be entitled to
attend meetings, to obtain copies of minutes and other documents, and to be notified of future
activities. The journalists, however, could also have their accreditation canceled if they
published material that “denigrate[d] the honor and the image” of the organization that
accredited them. This could be interpreted to cover virtually any report that criticized that body,
including reports that were entirely truthful, and would discourage aggressive reporting.
In order to guarantee that government bodies do not discriminate between journalists on
this basis, federal courts in the United States have held that government agencies must publish
the standards that will be used in deciding whether an applicant is eligible for accreditation. For
example, it might be reasonable to require a news organization to demonstrate that it publishes a
mass-circulation periodical at regular intervals. It might be reasonable to require a free-lancer to
provide examples of his or her work that have been published or broadcast in a mass medium.
However, eligibility should not be based on the political affiliation or “viewpoint” of the news
organization or individual reporter, and accreditation ought not be denied arbitrarily or for less
than compelling reasons. If accreditation is withheld, the journalist should be informed of the
reason for the denial and given an opportunity to appeal.182
In countries where government media exist, it is essential that independent media have
the same rights of access as official media to all government materials, documents, and meetings.
Foreign journalists should be allowed to travel freely within a country, to have access to official
and unofficial news sources, and to obtain accreditation on the same basis as their domestic
counterparts.
Another aspect of media access to news events and public proceedings involves the use
of electronic devices—cameras, tape recorders, and video equipment. Journalists who work for
the electronic media have argued that they should have the same rights as their print colleagues
to bring their “tools of the trade” with them when gathering news.
In the United States, the majority of local and state governmental authorities permit
journalists to bring electronic equipment into the meetings of public agencies. Both houses of the
182
Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977). This case held that the Secret Service was
required to articulate standards and a compelling reason for denial of a White House press pass
to a bona fide journalist, a member of the Periodical Press Gallery whose membership was
determined by other correspondents, not the government.
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United States Congress permit gavel-to-gavel coverage by means of television cameras and
audio feeds. Forty-seven states permit some form of “extended media coverage” in their
courtrooms.
The use of electronic newsgathering devices, however, is not universally accepted. Many
countries have chosen to limit or bar electronic coverage of governmental proceedings that are
otherwise open to the public and to the press, based on concerns that cameras distract
participants and disrupt the legitimate business of government.
Another view argues that cameras are simply the logical extension of the right of the
public, through the media, to attend government proceedings. Cameras can provide a more
accurate version of events than third-person written accounts and can actually neutralize
sensational reports based on interviews conducted outside. Further, in light of the fact that more
and more people get the bulk of their news and information from the electronic media, it is more
essential than ever that this means of communication not be unnecessarily restricted or curtailed.
Guidelines prescribing electronic media conduct when covering government proceedings,
such as requirements for pooling arrangements, are perhaps best left to administrative rules or
regulations promulgated by the particular government agency—ideally, following a public notice
and comment period to elicit suggestions from the media themselves. Such regulations are
generally more flexible than statutes and more easily amended to reflect technological or other
changed circumstances.183
Use of electronic recording devices for newsgathering involving private individuals or
companies may raise additional concerns about invasion of privacy. In the United States, the
approach has been to assume that journalists and members of the public have the same rights and
are subject to the same sanctions for violation of the law. Consistent with the First Amendment,
a state may, for example, prohibit the use of “hidden” cameras and microphones, and this
prohibition can constitutionally include journalists.184 If such a statute singled out reporters alone
for this prohibition, however, it probably would be unconstitutional.
A different approach is illustrated by a proposed Privacy Bill promulgated by the
National Heritage Committee of the British House of Commons in 1993, which would have
made surreptitious surveillance a crime. However, the bill also included a “public interest”
defense that would exonerate any journalist who engaged in such conduct “for the purpose of
informing the public about matters directly affecting the discharge of any public functions of the
individual concerned,” to prevent the public from being misled by public statements or actions of
183
A sample of these regulations from the state of Florida, Standards of Conduct and Technology
Governing Electronic Media and Still Photography Coverage of Judicial Proceedings, is included
in Appendix G.
184
See Shevin v. Sunbeam Television Corp., 351 So.2d 723 (Florida. 1977) (upholding the
constitutionality of a statute prohibiting recording of telephone conversations without the
consent of all parties, even when applied to investigative journalists).
CONCEPT PAPER ON MEDIA LAW
59
an individual, or for the protection of public health or safety.185
Whichever option is selected, it is clearly desirable to avoid creating distinctive or
heightened penalties for media newsgathering activities if identical conduct would be entirely
legal for members of the general public.
3.
Protecting Confidential Sources and Information
In 1996, the European Court of Human Rights ruled that a British journalist could not be
compelled to reveal his confidential source for a leak about the financial affairs of a company.
Although three British courts had held that the interests of justice demanded disclosure of the
source, threatening the journalist with imprisonment and a fine, the European Court found, in an
eleven to seven vote, that the company’s interests did not outweigh the vital public interest in
upholding the journalist’s right to protect his source. Six of the dissenting judges joined the
majority view that protection of sources is a basic condition of press freedom, without which the
vital watchdog role of the press is undermined.186
Many countries have some form of statutory or court-created privilege guaranteeing the
right of journalists to protect the confidentiality of their sources.187 In the United States, there is
no federal journalists’ “shield law,” but twenty-nine states and the District of Columbia have
adopted legislation providing varying degrees of protection. Some laws protect the identity of
confidential sources; others also shield unpublished material. The scope of a law and the breadth
of the privilege may differ depending upon the type of legal proceeding involved, civil or
criminal, or the role of the journalist, third party or litigant, in the underlying proceeding.
Most of the state courts in the United States have recognized some type of journalists’
privilege based on the First Amendment to the United States Constitution. This is generally
considered to be a qualified, not absolute, privilege that can be overcome upon a showing that
the information sought is relevant and material, essential to the underlying case, and, perhaps
most significantly, cannot be obtained from a non-media source.188
In criminal cases, many courts apply some form of this balancing test to determine
whether a criminal defendant’s right to due process and to evidence that might prove important
185
National Heritage Committee, Privacy and Media Intrusion, 4th Report, House of Commons,
Session 1992-93.
186
See Protection of Sources, WAPC News, June 1996 at 7, for a discussion of Goodwin’s Case.
187
See WILHELM, PROTECTION OF SOURCES: AN INTERNATIONAL REVIEW OF JOURNALISTIC AND
LEGAL PRACTICE, The Norwegian Institute of Journalism (1988).
188
The issue of whether the First Amendment provides a privilege was considered by the United
States Supreme Court in Branzburg v. Hayes, 408 U.S. 665 (1972). The majority ruled that
reporters have no constitutionally based right to refuse to testify before a grand jury about
criminal activity they have witnessed. A qualified constitutional privilege in other circumstances,
however, was recognized in separate opinions joined by a total of five justices, a majority of the
court.
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in his or her defense outweighs the journalist’s privilege. They may also utilize the test when the
information is sought on behalf of the government, the prosecution. Government subpoenas are
particularly troubling because they raise the specter of government utilizing supposedly
independent journalists as its agent of discovery.
Special problems are raised when a journalist who relies upon a confidential source is
subsequently sued for libel. In the United States, public officials and public figures are required
to demonstrate “actual malice” on the part of the journalist in order to prevail. They argue that
they must know the names of confidential sources in order to demonstrate that the reporter knew
the story was false or acted in reckless disregard of the truth. A number of courts have held that,
before a reporter can be compelled to reveal a source, the plaintiff must prove that the challenged
statement was false and defamatory and that the information is essential to the case and is
unobtainable elsewhere.
Most subpoena battles in the United States arise when a journalist refuses to violate his or
her commitment to keep a source confidential. Reporters consider themselves to be ethically
bound to maintain secrecy and have faced fines or jail rather than testify.
However, in 1991, the United States Supreme Court was asked to decide whether a
confidential source may sue a news organization that revealed his identity without his consent.
The court held that the First Amendment does not protect journalists from these civil suits, which
are similar to breach of contract, and that the individual states could decide whether to permit
such actions.189
Indeed, some journalists’ “shield laws” go beyond protecting the reporter’s right to keep
a source secret and, instead, transform this right into a duty. For example, the 1994 draft press
law for Belarus lists, under the heading “Journalists’ Obligations,” the obligation “to keep
information and the source of it confidential.” Similarly, a 1993 draft of the press law for Latvia
provided that “a press issue is competent not to indicate the source of its information. If the
person offering information requests that its name is not indicated, then this demand is binding
for the press issue.”
As a matter of ethics, most journalists do consider themselves “bound” by such requests.
However, it can create serious problems if these promises become enforceable at law. For
example, suppose a reporter finds out that a confidential government source knowingly lied to
the reporter when the informant provided false information? Is it not in the best interests of the
public to know who provided this inaccurate information? Under some of these laws, the
journalist would be subject to criminal or civil action if he or she revealed the source.
4.
Checklist of Considerations When Drafting Shield Laws
There are many approaches to drafting shield laws. The American experience has shown
that statutory language is critical in determining whether a shield law will be interpreted to
provide the broadest possible protections. A good shield law would include many elements.
189
Cohen v. Cowles Media, 111 S.Ct. 2513 (1991).
CONCEPT PAPER ON MEDIA LAW
61
First, the law should have an expansive and inclusive definition of news media. It is
important to make sure that the statutory language is not so narrow and specific that the law fails
to include journalists who work in new media. At a minimum, the definition would include
newspapers, periodicals, radio, television, wire services, news agencies, electronic and
telecommunications “content providers,” and press associations. The definition should also
include language along the lines of “other similar printed, photographic, mechanical or electronic
means of disseminating news to the public,” in order to protect new technological forms of
communication.
Second, there should be an expansive and inclusive definition of journalist. Again, it is
important that any person who is employed by the news media in a newsgathering or editorial
capacity, including on a free-lance basis, should be covered by the shield law.
Third, the law should provide a broad testimonial privilege. Journalists should be
protected from being forced to disclose information in any legal or quasi-legal proceeding before
administrative, legislative, and investigative bodies, or elsewhere. Both confidential and nonconfidential unpublished information should be protected. Journalists should be protected from
forced disclosure of confidential sources of news and information, but they should also be
permitted to decline to provide materials that were received on a non-confidential basis but have
not been published or broadcast. The editorial process should also be protected, which means
that reporters’ notes, drafts, internal memoranda, video and audio-tape “outtakes,” and similar
materials should be covered by the privilege.
This protection should be absolute. Journalists should be absolutely protected from
forced disclosure and should not be subject to contempt, imprisonment, or fines for refusing to
comply with a request to reveal such information. Journalists who are defendants in civil
litigation, such as libel suits, should be permitted to invoke the privilege on the same basis as
journalists who are third parties not involved in the underlying dispute without suffering any
adverse consequences.
If an absolute protection is not provided, qualified privileges should be as broad as
possible. If a decision is made to provide only a “qualified” privilege in certain cases, such as
where no confidential sources are involved, the statute should, at a minimum, require a showing
by the party seeking information that 1) the information is relevant and material, 2) that it is
essential to, or goes to the heart of, the legal issues in question, and 3) that it is unobtainable
from any other non-media source. The burden of proof should be on the party demanding
disclosure, and that party should be compelled to demonstrate that he or she has exhausted all
other available sources prior to subpoenaing a journalist.
Fourth, confidentiality should be a journalist’s privilege. The law should make clear that
the right to maintain the secrecy of a source or of unpublished information is the right of the
journalist, not the source. Sources—whether private individuals or government employees—
should not have the right to sue a journalist who breaks a promise of confidentiality, nor should
there be criminal consequences for a journalist who do so.
Finally, newsrooms should be protected from search and seizure. Law enforcement
authorities should not be permitted to search newsrooms or to seize editorial or source materials.
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In the United States, the federal Privacy Protection Act of 1980190 sharply limits the
circumstances under which law enforcement officials may conduct newsroom searches. These
are: if there is probable cause to believe the journalist has committed a crime to which the
materials relate (other than when the crime itself is possession of written material, except in
cases involving classified national security information); if the materials sought must be seized
to prevent death or serious bodily harm; or if a previous, lawful subpoena has been ignored and
all legal appeals have been exhausted.
5.
The Role of the Independent Judiciary
Throughout this discussion, allusions have been made to court decisions that vindicated
the rights of journalists to gather news and to protect their sources. Depending upon the legal
system, the judiciary may have greater or lesser discretion to interpret statutes or to recognize
rights and privileges not explicitly delineated in statutes, in order to promote the public interest
in receiving information.
On the simplest level, the judiciary must act as a check on the executive and legislative
branches of government to insure that news organizations are not denied information or access
arbitrarily. The judiciary must strike down statutes that would impede the press, invade the
privacy of editorial operations, or impose harsher penalties on journalists than on members of the
general public for the same offenses. It must consider with skepticism claims of government
authorities that “compelling interests” justify restrictions on newsgathering, starting always with
the presumption that the public has a right to know how its government functions. Similarly, it
must carefully balance the competing public interest in disclosure of information concerning
private individuals and the individual’s right to privacy. Finally, the judiciary must enforce all
statutes that guarantee journalists’ rights of access or confidentiality and make certain that rights
and privileges embodied in statutes are honored in practice as well as in theory.
6.
Conclusion
The rights to gather news and to protect sources of information are fundamental aspects
of freedom of the press and freedom of expression. Legislation should be drafted to guarantee
that the news media have full access to all branches of government, including documents and
proceedings. Government belongs to the people and should be presumed to be open to scrutiny
by the press and public alike. If government agencies elect to provide press accreditation, they
should do so fairly and should not discriminate against journalists on the basis of their viewpoint.
The rights of journalists to gather news concerning topics of public interest should not be
restricted. Laws designed to prevent trespass on private property or the use of surreptitious
cameras or recording devices should not single out journalists for punishment, but should apply
to everyone.
Legislation should also guarantee that journalists cannot be compelled to divulge
confidential sources and unpublished information to government agencies or private litigants.
190
42 United States Code Sections 2000aa, et seq. (1995).
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63
Newsrooms and workplaces should be protected from search and seizure by law enforcement
authorities except in carefully delineated circumstances where the public interest clearly
outweighs the journalist’s right to editorial privacy.
These rights are essential to achieving and maintaining a climate that encourages robust
debate and a healthy democracy. An independent judiciary is invaluable in insuring that the
rights are recognized and protected.
B.
The Constitutional Basis for Newsgathering Protections
This section of the concept paper examines some of the principles underlying the protections
afforded by the First Amendment for the newsgathering process. Two principal areas of inquiry are
presented: (1) protections for confidential news sources and (2) the right of the press, as well as the
general public, to obtain information about the functioning of the government.
Constitutional protections for the newsgathering process are derived from the First
Amendment, yet the text of the amendment makes no explicit mention of a right of access to
information or of protections for confidential news sources. The amendment instead provides in
relevant part that “Congress shall make no law ... abridging the freedom of speech, or of the press; or
the right of the people ... to petition the Government for a redress of grievances.”
If newsgathering rights are not expressly granted in the language of the First Amendment,
then how have such rights come to be embodied in judicial interpretations of the amendment? This is
a question common to many areas of constitutional analysis and requires consideration of both the
language and purpose of the amendment.
If the text of the First Amendment means anything at all, it surely is intended to protect the
freedom to speak, whether exercised by the citizenry or the press. The First Amendment’s speech
and press clauses, read in conjunction with the explicit right to petition the government for redress of
grievances, support the Supreme Court’s longstanding view that the “common core purpose” of the
Amendment is to “assur[e] freedom of communication on matters relating to the functioning of
government.”191
However, what would the right to speak out about the functioning of the government mean if
citizens could not obtain meaningful information about what their government was up to? Just as the
right of one person to speak means little without an accompanying right of others to listen, the right
to communicate about the conduct of government can be rendered an empty promise without a
means of acquiring information about how the government is functioning. That point was not lost on
the framers of the constitution. As James Madison stated “A popular Government, without popular
information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy or perhaps
both.”192
Stated in other words, “[i]f citizens are the ultimate sovereigns, as the Constitution
191
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980).
192
9 WRITINGS OF JAMES MADISON 103 (G. Hunt ed. 1910).
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presupposes, they must have access to the information needed for intelligent decision.”193 It is for
these reasons that the First Amendment has been construed to protect both the act of speaking out
and the process of gathering information needed to make such communications meaningful ones.
These protections for the newsgathering process have been described as “structural” in nature,
allowing the First Amendment to shield the press not only when it communicates information “but
when it performs all the myriad tasks necessary for it to gather and disseminate the news.”194 “The
structural model links the First Amendment to that process of communication necessary for a
democracy to survive, and thus entails solicitude not only for communication itself, but also for the
indispensable conditions of meaningful communications,”195 including the protection of confidential
news sources and the public’s right of access to certain governmental information.
1.
Protections for News Sources
The right of journalists to protect confidential news sources flows from the constitutional
protections afforded to the newsgathering process. Sources of important information often are
unwilling to communicate what they know unless they can do so with anonymity.
The desire for anonymity may be motivated by fear of official retaliation, economic harm,
social ostracism, or merely a desire to preserve one’s privacy. The need to protect the identity of
sources therefore is one of the “indispensable conditions of meaningful communications.”196
There is a rich history of anonymous sources of political information in the United States. As
the Supreme Court has stated, “[a]nonymous pamphlets, leaflets, brochures and even books have
played an important role in the progress of mankind. Persecuted groups and sections from time to
time throughout history have been able to criticize oppressive practices and laws either anonymously
or not at all.”197
The tradition of anonymous political speakers is most famously embodied in the Federalist
Papers, authored by James Madison, Alexander Hamilton, and John Jay but signed Publius.
Publius’s opponents, the Anti-Federalists, also tended to publish under pseudonyms such as Cato
and Centinel. James Madison and Alexander Hamilton also resorted to pseudonyms in the Helvidius
and Pacificus debates over President Washington’s Declaration of Neutrality in the war between the
British and the French. This tradition of anonymity is not limited to political writers. Literary figures
as diverse as Mark Twain (Samuel Langhorne Clemens), Voltaire (Francois Marie Arouet), and
George Eliot (Mary Ann Evans) all published under assumed names.198
193
Lewis, A Public Right to Know About Public Institutions: The First Amendment as a Sword,
1980 SUPREME COURT REVIEW 1, 2-3 (1980).
194
Brennan, Address, 32 RUTGERS LAW REVIEW 173, 177 (1979).
195
Richmond Newspapers, Inc. v. Virginia, at 587-88 (Brennan, J., concurring).
196
Richmond Newspapers, Inc. v. Virginia, at 587-88 (Brennan, J., concurring).
197
Talley v. California, 362 U.S. 60, 64-65 (1965).
198
For a discussion of the history of anonymous writings and the protections afforded to them by
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65
In analogous circumstances having nothing to do with journalists, the law has recognized
that confidential informers must be protected because of the value in obtaining information that
otherwise would not be divulged. For example, law enforcement officers are entitled to keep
confidential the identity of their informers except in those circumstances where the disclosure of the
informer’s identity is essential to a criminal defendant receiving a fair trial. One of the leading
commentators on the Federal Rules of Evidence explained the need to protect the identity of law
enforcement informers in terms that apply equally to journalists’ sources:
Communications of this kind ought to receive encouragement. They are
discouraged if the informer’s identity is disclosed. Whether an informer is motivated
by good citizenship, promise of leniency or prospect of pecuniary reward, he will
usually condition his cooperation on an assurance of anonymity to protect himself
and his family from harm, to preclude adverse social reactions, and to avoid the risk
of defamation or malicious prosecution actions against him. The government also has
an interest in non-disclosure of the identity of its informers. Law enforcement
officers often depend upon professional informers to furnish them with a flow of
information about criminal activities. Revelation of the dual role played by such
persons ends their usefulness to the government and discourages others from
entering into a like relationship.199
As strong as the interests in preserving the confidentiality of sources of information, whether
they are providing information to journalists or to law enforcement officers, society also recognizes
competing interests. For example, as noted, law enforcement officers are required to disclose the
identity of confidential informers when a criminal defendant can establish that the identity is crucial
to the presentation of a defense at trial (as, for example, in cases where the informer’s bias might
support a jury’s decision to acquit the defendant). Similarly, there are situations where a case can be
made that the First Amendment interests in protecting the free flow of information to journalists are
outweighed by competing interests of society. For instance, consider a situation where a journalist
publishes a story indicating that an individual other than the defendant charged with a crime is in
fact the person who committed the crime at issue. Protecting the confidential source might contribute
to an innocent person being convicted. Alternatively, a criminal defendant might admit to a
journalist that he or she committed the crime with which he or she is charged. If the journalist then
publishes an article reporting that fact, the prosecution may have a demonstrable need for the
reporter’s testimony if the defendant seeks to evade responsibility for his or her conduct at trial.
It is for reasons such as these that it is often said that, as a general matter, the public has a
right to every person’s evidence. Most courts have attempted to balance these competing interests by
providing journalists with a qualified privilege to protect their news sources. Many jurisdictions
therefore require that, before a journalist will be required to testify as to his or her news sources, the
parties seeking disclosure must show that the information sought from a journalist is:
•
Directly relevant to a judicial proceeding,
the First Amendment, see McIntyre v. Ohio Elections Commission, 115 S.Ct. 1511, 1516-17 &
n.4 & n.6 & 1525-29) (Thomas, J., concurring).
199
VIII WIGMORE ON EVIDENCE, Section 2374 (Rev. Ed. 1961).
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•
Could not have been secured by an alternative non-journalistic source, and
•
The need for the materials outweighs the interests in protecting a journalist’s sources.200
Application of such a qualified privilege requires trial court judges to make case by case
determinations as to whether the interests in disclosure outweigh the interests in protecting a
source’s anonymity. In cases where a source’s identity is crucial to the outcome of a criminal case,
the need for disclosure may be quite compelling. In civil litigation, where a party is not faced with a
deprivation of his or her life or liberty, the need for disclosure often will be less compelling. So, too,
in cases where the journalist is a party to litigation, as in defamation cases, the interest in disclosure
may be stronger than in other civil cases where the journalist is not a party but merely reported upon
a matter of legitimate public interest.
Because application of a qualified privilege depends upon the individualized judgments of
trial court judges, the results are not always uniform. As a result, several states have enacted
legislation to provide more specific guidance as to whether and when a journalist may be required to
disclose confidential news sources. Provided that such legislation does not run afoul of constitutional
principles, a legislative approach may provide predictability and uniformity to journalists and to
those who seek the disclosure of the identity of news sources. For example, the legislature might
determine that the interest in pursuing civil litigation is never sufficient to outweigh the interest in
preserving the free flow of information between journalists and their sources. Alternatively, a limited
exception might be provided for civil cases in which a journalist has been sued for defamation and
the identity of his or her source is crucial to the outcome of the case. Legislation also can ensure that
prosecutors will not use the threat of subpoenas to harass or intimidate journalists who seek to report
upon the judicial and political process.
Courts also have recognized that protecting the free flow of information may require
safeguarding the identity of non-confidential sources and information. Accordingly, in order to
protect the integrity of the newsgathering process, some courts will require a party to demonstrate a
compelling need for any form of testimony by a journalist that requires the journalist to testify as to
his or her newsgathering techniques or work product. As one court has noted:
We discern a lurking and subtle threat to journalists and their employers if
disclosure of outtakes, notes, and other unused information, even if non-confidential,
becomes routine and casually, if not cavalierly, compelled. To the extent that
compelled disclosure becomes commonplace, it seems likely indeed that internal
policies of destruction of materials may be devised and choices as to subject matter
made, which could be keyed to avoiding disclosure requests or compliance therewith
rather than to the basic function of providing news and comment. In addition,
frequency of subpoenas would not only preempt the otherwise productive time of
journalists and their employees, but measurably increase expenditures for legal
fees.201
200
See, e.g., Bruno & Stillman, Inc. v. Globe Newspaper Company, 633 F.2d 583 (1st Cir. 1980).
201
United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988).
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In sum, whatever the precise parameters of the constitutional protection afforded to
journalists for their news sources, the safeguards are based upon the well established principle that
valuable information often comes in confidence from persons fearful of reprisals. Some sources are
afraid of the government, others of their competitors, and still others of criminal elements or general
ostracism from society. Routinely forcing reporters to divulge such confidences would limit the flow
of information to the press and, in so doing, limit public access to important types of information. As
one leading commentator put it:
Although the direct censorship of newspapers or broadcasts would constitute
a more blatant—because historically more familiar and, of course, differently
motivated—violation of the First Amendment, the forcing of disclosure of reporters’
confidences is not very different in fact. It is a form of indirect, and perhaps random,
but highly effective censorship; a prior restraint, not in the sense in which those
words are used as a phrase of art, but in a literal and constitutionally also relevant
sense.202
2.
Access to Information
The protections given to confidential news sources can be viewed as primarily defensive in
nature. They are designed to protect the flow of information from sources willing to speak only on
the condition of confidentiality. In order to ensure meaningful communications on the functioning of
government, however, the First Amendment also has been construed to provide a pro-active right of
access to certain governmental sources of information, even if the government officials are
themselves unwilling to speak. This right of access is bestowed upon all members of the public, not
just the media, although it is the media that most often is called upon to exercise that right as a
surrogate for the public at large.
The rationale underlying a right of access to governmental information is similar to that
which underlies the protection of news sources. In order for the public to inform itself about the
functioning of government and to enable meaningful public debate and reform through the operation
of the speech, press, and petition clauses of the First Amendment, the public must have a right to
obtain certain information about what its government is doing. For these reasons, courts have
recognized that the public has a presumptive right to attend a wide variety of judicial proceedings,
both criminal and civil.
The Supreme Court has employed a two-part test to determine whether the public has a right
of access to any particular judicial proceeding. First, the court examines whether, as a historical
matter, the public traditionally has been allowed to attend such proceedings. Because the framers of
the constitution shared certain values, a history of access is believed to reflect the positive judgment
of history.203 The second part of the access test examines whether public access will play a positive
role in the proceeding at issue. This factor recognizes the dangers inherent in allowing governmental
officials to take action against citizens behind closed doors. Public access enhances the quality and
integrity of the justice system, demonstrates to the citizenry that the process operates fairly, permits
202
A. BICKEL, THE MORALITY OF CONSENT 84 (1975).
203
See e.g., Globe Newspaper v. Superior Court, 457 U.S. 596, 604 (1982).
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the public to participate in and serve as a check upon the judicial process, and provides a therapeutic,
community catharsis in the aftermath of criminal or civil wrongdoing.204
Applying these principles, the Supreme Court has held that the public has a First
Amendment right of access to criminal trials, preliminary criminal hearings, and jury selection
proceedings.205 Even in cases where a juvenile victim of a sex offense is required to give testimony,
the need for the public to assure itself that the system operates fairly requires that the public have a
presumptive right of access to observe the proceedings. In cases decided by a judge rather than a
jury, the interests underlying public access are arguably even stronger, since the presence of a jury
safeguards against corrupt, biased, or overzealous prosecutors, judges, or defense counsel.
Not every part of the judicial process, however, operates best in public view. The
deliberations of juries are conducted in private in order to promote free and frank discussion. The
First Amendment never has been viewed as requiring any different result. Similarly, the First
Amendment never has disturbed the tradition of grand jury secrecy, which protects the interests of
law enforcement personnel, witnesses, and those under investigation from being prejudiced by
premature disclosure of, as yet, uncorroborated charges.
Even in situations where the First Amendment right of access applies in full force, as in
criminal trials, the right is not absolute. For example, the public has a presumptive, but not an
absolute, right of access to attend criminal trials. This means, for example, that the mere fact that a
juvenile is testifying is insufficient to exclude the public. However, in cases where the trial judge
makes findings that the victim would suffer serious harm if required to testify in public and there
exist no alternative means of protecting the victim’s interests (such as closing only a portion of his or
her testimony or shielding his or her identity by use of a pseudonym), a closure order may be entered
consistent with the First Amendment.206
Similarly, there may be instances where the interests of a criminal defendant support a
closure order. According to the Supreme Court, criminal proceedings may be conducted in secret in
order to protect a criminal defendant’s fair trial rights only if the trial court makes specific findings
demonstrating that “first, there is a substantial probability that a defendant’s right to a fair trial will
be prejudiced by publicity that closure would prevent” and, second, “reasonable alternatives to
closure cannot adequately protect the defendant’s fair trial rights.”207 So long as the trial court is
confident that an impartial jury can be selected to decide the case, that is, citizens who can set aside
any preconceived notions they have about the defendant’s guilt or innocence and decide the case
based on the evidence, the First Amendment prohibits the closure of a criminal proceeding. So, too,
if the publicity that would be prevented by a closure order already is known to the community, then
the closure order would be an ineffective means of protecting the defendant’s fair trial rights and,
204
Globe Newspaper v. Superior Court, at 606.
205
Richmond Newspapers, Inc. v. Virginia; Globe Newspaper v. Superior Court; PressEnterprise Co. v. Superior Court, 464 U.S. 501 (1984) (“Press-Enterprise I”); Press-Enterprise
Co. v. Superior Court, 478 U.S. 1 (1986) (“Press-Enterprise II”).
206
See generally Globe Newspaper v. Superior Court.
207
Press-Enterprise II, at 14.
CONCEPT PAPER ON MEDIA LAW
69
thus, an unconstitutional infringement of First Amendment rights.
As with the constitutional protections afforded to confidential news sources, the protection of
the public’s right of access to judicial proceedings depends upon case by case rulings made by trial
court judges. It is necessary to weigh the interests in public access and the competing interests in
secrecy on an individualized basis. Any alternative approach risks sacrificing the public ability to
serve as a watchdog in favor of general, speculative privacy concerns.
Although the Supreme Court has not yet extended the public’s right of access to
governmental proceedings other than judicial proceedings, the First Amendment provides a
compelling rationale for such a right. The judiciary is not the only branch of government with the
power to take actions that significantly impact upon the lives and well being of citizens. Further,
members of the legislative and executive branch are not inherently more trustworthy than their
judicial colleagues. One reason why the Supreme Court perhaps has not yet been called upon to
decide the issue is the proliferation of legislation providing members of the public with a statutory
right of access to certain executive and legislative proceedings and documents. Such open meeting
laws and public records statutes balance the need for confidentiality with respect to certain
governmental proceedings, such as ongoing police investigations, against the interests of the public
in observing and evaluating the government’s formal decision-making process.
3.
Conclusion
As the foregoing discussion demonstrates, the protections afforded by the constitution for the
newsgathering process have their roots in the First Amendment. In a broader sense, however, those
rights are grounded in the entire framework of a democratic constitution that places ultimate political
power in the people rather than in their elected or appointed officials. These First Amendment rights,
therefore, serve to ensure the proper functioning of democracy as a whole and help safeguard all
citizens from abuses of power.
As the state takes responsibility for ever larger areas of decision-making, as it penetrates ever
deeper into individual lives, the danger of official abuse grows. The function of the citizen-critic of
government is more important now than ever—and harder to perform. If big government is to be
effectively criticized and controlled, it will take more than the exhortations of an orator. It will take
the countervailing force of big newspapers, broadcast networks, public interest groups, and lobbying
organizations of all kinds. They cannot succeed without information. In modern society, information
is power. Officials struggle to control it, and in that struggle the citizen-critic needs constitutional
support.208 Constitutional protections for the newsgathering process thus provide a critical means of
support for the citizen-critic who wishes to be heard in any form of democracy.
208
Lewis, at 25.
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V.
Problems in Governmental Ownership, Control, and Regulation of the
Press and Media
A.
Economic Censorship of the Press and Media
The best press law is generally no law because power disproportionally favors the
government in conflicts with the media. Every law, no matter how well intentioned, can be turned
into a weapon against the media.
In an age when every leader is a democrat, what will be called economic censorship
becomes a more effective way for governments to exert control. Economic censorship is the use of
marketplace control, licensing, taxation, and regulation by governments to attain ends when brute
force is not appropriate. As a concrete case study, recent events in Belarus provide examples of old
fashioned repression now coupled with the more sophisticated form of economic censorship:209
•
Since August 19th, at least nine of Belarus’ leading independent or opposition weekly
newspapers have been targeted by tax authorities for alleged infractions,
•
The country’s only independent news agency also has faced tax inspections,
•
Five of the weeklies have been fined and had their bank accounts frozen, and
•
An independent radio station, 101.2 in Minsk, has been disconnected from the strong
state-owned transmitter.
Clearly, in a situation where the government owns the means of communication, the possibility
always exists that the governmental outlets will be favored over the private media, particularly
during times the central government is under stress.
Economic factors have long been identified as means of media control. These include, before
publication:
209
•
Monopoly of materials, including ink, newsprint, and electronic transmitters,
•
Licenses for publications,
•
Licenses for employees,
•
Requirement for a security or performance bond,
•
Restrictive labor laws,
•
Restrictions or subsidies on the gathering of information,
The situation in Belarus is according to William A. Orme, Jr., executive director of the
Committee to Protect Journalists, in a letter to Belarus President Aleksandr Lukashenko and
Secretary General Tarschys of the Council of Europe, 11 September 1996.
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•
Government advertising, and
•
Financial dimensions of other laws.
71
Economic facts that can be applied after publication include:
•
Confiscation,
•
Legal nuisance suits,
•
Fines,
•
Taxes, and
•
Distribution requirements or subsidies.
Some of the above, such as media subsidies from the government or government advertising,
might seem to favor media outlets. However, the subsidy is a two-edged sword. The media can
become dependent on government handouts.
Media outlets are not always well-meaning and not always honorable. Further, one can not
consider that the United States model of “objective” journalism is morally superior to the
“advocacy” or “opinion” model typical of many European countries. During the New Deal Era of
United States President Franklin D. Roosevelt, some U.S. newspaper publishers tried to use the
“freedom of the press” clause in the United States Constitution as a shield against progressive social
legislation, including wage-and-hours legislation and social security. Smaller American newspapers
still are exempted from minimum wage laws because of the newspaper industry’s political power.
Some United States newspapers have sought to use the so-called “Failing Newspaper Act”
that allows two otherwise unrelated newspapers to join non-news functions, such as advertising sales
and circulation, in a way that would normally be a criminal monopoly. The idea is to preserve the
two independent newspaper voices in the same urban market. Academic studies indicate that, when
newspapers gain such a monopoly, advertising and circulation rates generally are higher and other
competition suffers.
One claim made by United States newspapers is that they deserve special privilege because
they represent the public. That representation is not found in any law. American newspapers,
however, have found that an objective stance is economically beneficial. Additionally, as the neutral
third-party messenger, they claim immunity from responsibility for the message they carry. In the
United States, magazines generally fill the role of advocate or opinion journalist. These, usually
smaller, organizations are more vulnerable to attempts at control by governments.210 Some
considerations follow on the various methods of media control.
210
Consider Near v. Minnesota, where the muckraking SATURDAY REVIEW was declared a public
nuisance and banned from publication. In United States v. Progressive, Inc., the government
sought to stop publication of library material about the production of atomic bombs.
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1.
Pre-Publication Controls
a)
Monopoly of Materials
The issue of materials is a difficult one because newsprint, ink, and technically up-to-date
electronic equipment are scarce and usually have to be obtained by the use of hard currency.
National governments frequently have a strong interest in preventing the outflow of hard currency.
However, the history of material rationing, particularly in South America, shows that government
officials quickly begin to favor with supplies those media outlets that are open to government
suggestions. The logical approach would seem to be that the responsibility of providing hard
currency for media needs would rest with the individual media company.
b)
Licenses for Publications
Even while recognizing the danger of newspaper licensing, many countries have constructed
elaborate licensing systems for radio and television on the grounds that public resources, the
airwaves, are used. A recent United States court fight determined that the Internet would follow
newspapers instead of radio and television at least insofar as indecency was concerned.211 Indecency
is forbidden on the U.S. airwaves. Newspapers, magazines, and other printed materials, however,
operate under the looser standard of obscenity.
Clearly, the public perception of the potency of a medium or media has much to do with how
lawmakers estimate the effectiveness in opinion molding of the medium. United States media law
shows a clear break between the print media and electronic media, as the latter are perceived to be
more potent because of their greater reach and impact.
As Justice Stevens stated in the majority opinion in FCC v. Pacifica Foundation212 “[w]ords
that are commonplace in one setting are shocking in another…. [T]he broadcast media have
established a uniquely pervasive presence in the lives of all Americans.” Justice Powell, concurring,
stated: “The result turns instead on the unique characteristics of the broadcast media, combined with
society’s right to protect its children from speech generally agreed to be inappropriate for their years,
and with the interest of unwilling adults in not being assaulted by such offensive speech in their
homes.”
In Re: WUHY-FM Eastern Education Radio213 was a case in which the FCC fined the radio
station one hundred dollars because it broadcast from 10 to 11 p.m. an interview with Jerry Garcia of
the Grateful Dead during which the rock star used four-letter vulgar words repeatedly in his
interview. In its decision, the court stated:
This brings us to the second part of the analysis—the consequence to the
211
The Communication Decency Act, part of the Omnibus Telecommunications Bill, has been
struck down twice in United States federal courts.
212
3 MEDIA LAW REPORTER 2553, 438 U.S. 726, 57 L. Ed. 2d 1073 (1978).
213
24 FCC2d 408 (1970).
CONCEPT PAPER ON MEDIA LAW
73
public interest. And here it is crucial to bear in mind the difference between radio and
other media. Unlike a book which requires the deliberate act of purchasing and
reading (or a motion picture where admission to public exhibition must be actively
sought), broadcasting is disseminated generally to the public under circumstances
where reception requires no activity of this nature.
The decision also notes the possible presence of children and 18 United States Code Section 1464,
which makes it a crime to “utter any obscene, indecent or profane language by means of radio
communication.” The FCC also cited the United States Supreme Court in Burstyn v. Wilson,214
where the FCC interpreted that different rules are appropriate for different media: “Each method
tends to present its own peculiar problems.”
Said Jerome Barron, the legal scholar, about In Re: WUHY-FM Eastern Education Radio:
Are there compelling reasons for a more restricted latitude for expression on
broadcasting? Is it demonstrably clear that the shock effect or impact or a single
word is immeasurably greater on radio than it might be in a textbook? In the case of
the radio broadcast, it is difficult to make assumptions about or to establish controls
for the ultimate composition of the broadcast audience. But are there not alternatives
to making the most impressionable or susceptible viewer or listener the arbiter for
what is tolerable in broadcasting.215
In FCC vs. Sonderling Broadcasting Corp., WGDL-FM,216 a case about a radio call-in show
with the topic of oral sex, the decision said of broadcasting: “This is peculiarly a medium designed
to be received and sampled by millions in their homes, cars, on outings, or even as they walk the
streets with transistor radio to the ear, without regard to age, background or degree of
sophistication.”
So, the estimate of the potency of a medium and its availability to children seem to be the
bases on which licensing rests. However, the United States electronic licensing structure has
diminished in importance, and children in a media-soaked society are exposed routinely to a number
of points of view. Therefore, the need for electronic licensing seems to have declined. Licensing
because of the use of a natural resource, the airwaves, is exposed as a sham as the United States
federal government conducts auctions for what amounts to ownership of particular frequency groups
by cellular and other telecommunications companies.
c)
Licenses for Employees
Venezuelan journalists who visit the United States are clear about the meaning of their
Colegio de Periodistas, or College of Journalists. Venezuelans adopted licensing of reporters and
214
215
343 U.S. 495, 502-03 (1951).
JEROME BARRON
COMMENTS 915.
216
AND
41 FCC2d 777 (1973).
DONALD A. GILLMOR, MASS COMMUNICATION LAW: CASES
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AMERICAN BAR ASSOCIATION—CENTRAL AND EAST EUROPEAN LAW INITIATIVE
editors when trained Spanish-speaking journalists began to arrive in that country from Castro’s
Cuba. Licensing is job protection, pure and simple.
Such licensing also has been declared a violation of human rights. The Inter-American Court
of Human Rights issued such an opinion in the case of U.S. citizen Stephen Schmidt, who was
charged with practicing journalism without a license in Costa Rica in 1979. In an advisory opinion
in November 1985, the Inter-American Court of Human Rights interpreted the American
Convention on Human Rights:
A law licensing journalists which does not allow those who are not members
of the colegio to practice journalism and limits access to the colegio to university
graduates who have specialized in certain fields is not compatible with the
convention. Such a law would contain restrictions to freedom of expression that are
not authorized by Article 13 (2).
About fifteen Latin American countries have similar regulations, in part because of the
pressure exerted on lawmakers by journalists and their academic associates.217
d)
Requirement for Security or Performance Bond
The requirement for a security or performance bond was part of the Second Star Chamber
Decree designed by King Charles I and his privy council to suppress rival literature in the king’s
political battle with Parliament in 1640. A bond had to be posted by a publisher before the material
went to the printer. The bond was forfeited if the material did not turn out to be satisfactory
politically. The economic pressure was high to avoid sensitive areas of discussion because the
offensive material was destroyed, costing the publisher not only the amount of the bond but also the
cost of production.
e)
Restrictive Labor Laws
Media companies have large numbers of employees; consequently, they are vulnerable to
labor laws with excessive financial requirements. Newspaper publishers in Venezuela, for example,
cannot discharge many employees because the labor law says that employees who lose their jobs
must be paid a month’s salary for every year of employment. The law was originally designed to
protect workers from foreign oil companies; however, the result for medium-size businesses is
possible financial ruin. When complex laws can cost media companies significant amounts of
money, an element of control is present, particularly when the laws are not enforced uniformly.
f)
Restrictions or Subsidies on Gathering Information
In the news business, the commodity for sale is perishable. Any government can take steps
to enhance the news-gathering of favored publications and individuals while hampering those not so
favored. Government subsidies or restrictions on news gathering can make or break individual
217
See Robert U. Brown, Licensing of Journalists Debated, EDITOR & PUBLISHER, October 18,
1995, pages 18, 19, and 43.
CONCEPT PAPER ON MEDIA LAW
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media suppliers.
g)
Government Advertising
Advertising by government organizations is another example of a financial subsidy lavished
on favored media and withheld from those not favored. Russian newspapers seem to be heavily
dependent on government advertising, as well as bank advertising.. The pro-Yeltsin orientation of
the media during the Russian presidential elections might be, in part, due to the government subsidy.
U.S. publications are not immune to advertising subsidy. Legal advertising represents about
thirty percent of the income of smaller weekly and daily newspapers. Laws obligate municipalities,
counties, and some private companies, such as banks, to publish advertising relating to legal matters.
To some extent, this advertising is a subsidy to the publication ordered by the state legislatures.
Because local governments have some say in picking the publication that prints the legal advertising,
newspapers are sensitive to the feelings of local politicians.
Another press law frequently discussed is the prohibition against certain undesirable social
activities, principally alcohol and cigarettes. Algirdas Brazauskas of Lithuania signed a controversial
alcohol control law for that country in mid-May 1995. The law provides for stricter rules on liquor
sales and bans the advertising of alcohol on television, radio, and newspapers.218 Similarly, in the
United States, President Clinton seeks to restrict cigarette advertising. Each of these actions
represent an economic impact for publications. When used unfairly, restrictions on advertising can
represent control.
h)
Financial Dimension of Other Laws
A number of control measures have economic dimensions. If those who oppose a media
outlet use arson to press their point, there is an economic cost to the outlet in rebuilding the
destroyed property. A stipulation for a right of reply is an example of a law with hidden economic
costs. Arguments about media role and public access involving the print medium have been
extensive. Some have argued that individuals should have access to the media even when they are
not responding to defamatory falsehoods.
The views of some commentators have been taken up by justices on the Supreme Court.219
Justice William Brennan, joined by Chief Justice Warren Burger and Justice Harry Blackmun,
wrote, in footnote 15 of the opinion of the court in Rosenbloom v. Metromedia, Inc.:220
Constitutional adjudication must take into account the individual’s interest in
access to the press as well as the individual’s interest in preserving his reputation,
even though libel actions by their nature encourage a narrow view of the individual’s
218
Open Media Research Institute Report, 17 May 1995.
219
JEROME BARRON AND DONALD A. GILLMOR, MASS COMMUNICATION LAW: CASES
COMMENTS 581 (1984).
220
403 U.S. 29 (1971).
AND
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AMERICAN BAR ASSOCIATION—CENTRAL AND EAST EUROPEAN LAW INITIATIVE
interest since they focus only on situations where the individual has been harmed by
undesired press attention. A constitutional rule that deters the press from covering the
ideas or activities of the private individual thus conceives the individual’s interest too
narrowly.
The court also noted that some states have adopted right-of-reply statutes or retraction
statutes.221 This became an issue when THE MIAMI HERALD published, on September 20, 1972, an
editorial calling Pat Tornillo, a political candidate, a “czar and a law breaker” because he had been a
leader in a 1968 Dade County, Florida, strike by the Classroom Teachers Association. Tornillo
sought to reply under a 1913 right-of-reply statute contained in the Florida Election Code.222 Tornillo
sought an injunction requiring that THE MIAMI HERALD print his reply.
A lower court ruled the law unconstitutional, but the Florida Supreme Court reversed, six to
one, and held the law to be constitutional.223 The lower court said that the statute was vague and that
no editor could know in advance exactly what words would offend the statute or the scope of the
reply required. The Florida Supreme Court, however, relied on the United States Supreme Court
endorsement in Rosenbloom that “a right of reply statute aids the information process in the sense
that it provides for access for the person attacked.”224 The Florida Supreme Court also denied the
newspaper’s petition for rehearing of the case despite amicus curae briefs filed by many other
newspapers.225
Said Jerome Barron:
An enforceable right of reply in the press, although of relatively long
standing in Germany and France, has been a fairly unusual phenomenon in the
statutory patterns of American States. (cite omitted) Yet interest in right of reply
statutes had been considerable. It was generated by the increasingly noncompetitive
and chain-dominated press and the Supreme Court’s ground-breaking decision in
New York Times v. Sullivan, 376 U.S. 245 (1964), which so radically revised the
American law of libel and provided a measure of relief from libel judgments hitherto
unknown in American law.226
221
The same opinion cited Donnelly, The Right of Reply: An Alternative to an Action for Libel 34
VIRGINIA LAW REVIEW 867 (1948) and Donelly, Vindication of the Reputation of a Public
Official 80 HARVARD LAW REVIEW 1730 (1967) Compare Red Lion Broadcasting Co. v. FCC
395 U.S. 367 (1969).
222
Florida Statutes 104.38.
223
38 Fla. Supp. 80 (1972); See also Tornillo v. Miami Herald, 287 So. 2d 78 (Fla. 1973).
224
Tornillo v. Miami Herald.
225
287 So. 2d 78, 89 (Fla. 1973).
226
JEROME BARRON
COMMENTS 583.
AND
DONALD A. GILLMOR, MASS COMMUNICATION LAW: CASES
AND
CONCEPT PAPER ON MEDIA LAW
77
In Tornillo v. The Miami Herald Publishing Co.,227 the newspaper argued that the right of
reply law deprived it of property without compensation or due process of law in violation of the
Florida Constitution and the Fourteenth Amendment of the United States Constitution. In the court’s
opinion, Justice Burger wrote:
It is urged that at the time the First Amendment to the Constitution was
enacted in 1791 as part of our Bill of Rights the press was broadly representative of
the people it was serving. While many of the newspapers were intensely partisan and
narrow in their views, the press collectively presented a broad range of opinions to
readers. Entry into publishing was inexpensive; pamphlets and books provided
meaningful alternatives to the organized press for the expression of unpopular ideas
and often treated events and expressed views not covered by conventional
newspapers. A true marketplace of ideas existed in which there was relatively easy
access to the channel of communication.
Access advocates submit that although newspapers of the present are
superficially similar to those of 1791 the press of today is in reality very different
from that known in the early years of our national existence.... The printed press, it is
said, has not escaped the effects of this revolution. Newspapers have become big
business and there are far fewer of them to serve a larger literate population. Chains
of newspapers, national newspapers, national wire and news services, and onenewspaper towns are the dominant features of a press that has become
noncompetitive and enormously powerful and influential in its capacity to
manipulate popular opinion and change the course of events.
The decision also quotes Archibald MacLeish in William Hockings’ FREEDOM OF THE PRESS. A
similar view is presented in the report of the Commission on Freedom of the Press, A FREE AND
RESPONSIBLE PRESS:
Freedom of the press is a right belonging, like all rights in a democracy, to all
the people. As a practical matter, however, it can be exercised only by those who
have effective access to the press. Where the financial, economic, and technological
conditions limit such access to a small minority, the exercise of that right by that
minority takes on fiduciary or quasi-fiduciary characteristics.228
The growth of alternative media even in Eastern Europe (e.g., the Internet) seems to void a
number of these concerns. In addition, a right of reply envisions a reply from one party. What the
economic impact will be on the media when multiple parties wish to make a reply remains to be
seen.
227
418 U.S. 241 (1974).
228
COMMISSION ON FREEDOM OF THE PRESS, A FREE AND RESPONSIBLE PRESS 99, note 4.
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AMERICAN BAR ASSOCIATION—CENTRAL AND EAST EUROPEAN LAW INITIATIVE
2.
Post-Publication Actions
a)
Confiscation, Distribution Requirements, or Subsidies
The aspect of control at the point of publication was mentioned above in connection with
pre-publication bonding. Confiscation in the marketplace also represents a type of control. In the
United States, free college newspapers have been stolen by groups that disagreed with the contents.
Short of confiscation are distribution requirements or restrictions. If a publication is not
allowed to circulate in the marketplace, the result is the same as heavy-handed censorship. In the
United States, there have been many court battles after local governments banned newspaper sales
boxes from public streets, ostensibly for aesthetic reasons. Usually, the newspapers have been
victorious in court.
Distribution subsidies can be used to support a favored publication. In the electronic media,
the subsidy might be equipment or even electrical rates.
Historically, the United States Postal Service offered cut rates for publication publishers. The
right to mail cheaply has been revoked over content several times in U.S. history. Before the U.S.
Civil War, the postal department refused to deliver anti-slavery material to southern states. During
and after World War I, the postal department refused to deliver so-called radical publications. After
World War II, the postal department would not handle literature it considered pro-Communist.229
The right to mail cheaply is an important advantage for many American publications. To
lose such a benefit would be a serious burden to publishers. Consequently, the subsidy represents a
hidden implement of control.
b)
Legal Nuisance Suits
The most potentially damaging legal action in United States courts for media outlets is the
libel case brought by someone who claims to have been defamed. Money judgments can easily reach
one million dollars even in the most local dispute. A series of United States Supreme Court decisions
in the 1960s greatly limited the punitive nature of libel cases, particularly as they related to public
officials and public figures. Nevertheless, the privacy suit now is emerging as a danger to media
outlets. Because the business of the media frequently is the invasion of someone’s privacy, the
economic impact of such suits have the potential to be staggering.
The use of a criminal libel statute generally is limited to private disputes in the United States.
This is not so in Croatia. According to press reports, two FERAL TRIBUNE employees were acquitted
of that charge on September 27, 1996. The two were accused of defaming Croatian President Franjo
Tudjman.230 Criminal or seditious libel is particularly useful in control of the media because of its
229
Post-war cases of note include Hannegan v. Esquire, Inc., 327 U.S. 146 (1946), involving the
mailing of racy material and Lamont v. Postmaster General, 381 U.S. 301 (1965), involving the
delivery policies related to “communist propaganda.”
230
Personal Internet message from Roy S. Carson, quoting a release from The Committee to
CONCEPT PAPER ON MEDIA LAW
79
criminal nature. Conviction means jail in addition to a money loss. Accordingly, a sign of a modern
media system has been said to be the lack of a criminal libel statute. It also has been said that East
Europeans object to administrative and executive censorship, but they have full faith in judicial
censorship.231
c)
Fines and Taxes
Tax inspections and subsequent fines in Belarus point out the control value of such laws.
From a media standpoint, control efforts can be found in any unfair or disproportionate enforcement
of laws. Tax laws targeting a specific medium or group of media generally have been seen as illegal
in United States courts.232
In 1712, the British Parliament imposed a tax on all newspapers and advertisements, kicking
off a century of resistance and evasion, including in the American colonies, where the Stamp Act
was a major issue leading up to the United States War of Independence.
Of course, when all else fails, newspapers can sidestep national press laws by creative
means. According to the Open Media Institute Daily Report, the Belarus opposition newspaper,
BELORUSSKAYA DELOVAYA GAZETA, in an effort to evade actual and threatened restriction by the
Belarus government, arranged for printing facilities in Lithuania. The editors were following the lead
of the editors of the eleven banned radical newspapers that managed to publish a joint OUR
NEWSPAPER during the first days of the 1991 Soviet coup attempt. At that point, the Moscow
newspaper was printed in St. Petersburg233 and, some say, Finland.
B.
Governmental Control and Regulation of the Press and Media
1.
Introduction
The First Amendment of the United States Constitution states: “Congress shall make no law
... abridging the freedom of speech, or of the press.” In the American colonies and during the early
years of the United States, however, seditious libel laws existed to punish criticism of government
by the people. Furthermore, other laws punished speech and publications that were deemed to have
no social value, such as obscenities and “fighting words.”
Protect Journalists, September 28, 1996.
231
From a panel discussion August 12, 1993, at Kansas City, Missouri, for the Association for
Education in Journalism and Mass Communications on press laws in Russia and Eastern Europe.
232
In Grosjean v. American Press Co., 297 U.S. 233 (1936), the U.S. Supreme Court struck
down a Louisiana law that specified a tax on advertising for only thirteen of the newspapers in
that state. The governor actually was trying to target the capitol city New Orleans TimesPicayune, which had been critical of him.
233
See Alexei Izyumov, Coup United Soviet Media, THE QUILL, January/February 1992, p. 2729.
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AMERICAN BAR ASSOCIATION—CENTRAL AND EAST EUROPEAN LAW INITIATIVE
In a legal system in which the freedom of speech and the press is not to be abridged by
governmental action, is there room for any regulation of spoken or printed words? Was Justice
Brandeis of the United States Supreme Court correct in Whitney v. California234 when he noted that
“freedom to think as you will and to speak as you think are means indispensable to the discovery and
spread of political truth,” and “fear breeds repression ... repression breeds hate ... [and] hate menaces
stable government”? Alternatively, should government have the power to protect its national
security, its nonconsenting public, or its minors from material it, through its assumed wisdom,
considers offensive?
As democracy spreads further into the laws and hearts of the people of Central and Eastern
Europe, traditions of paternalistic autocracy inevitably will bow to the desire of citizens to know
what is happening. As the organizers of knowledge, media laws will reflect the inevitable
compromise between the people’s need to know and the government’s mandate to prevent evil.
2.
Official Ownership or Control of Press and Media Entities
Implicit in the First Amendment freedom of speech and the press is non-governmental
ownership or control of media and press entities. To fragile and newly-emerging democracies,
wholly-independent press and media entities understandably can appear as a threat to governmental
stability, and the need to control the press can be strong. However, unfettered newsgathering,
arguably, can contribute to a stable and docile citizenry by assuring voters the most accurate
information to be used in the policy-making process. Thus, governmental decision-making will
reflect reality, not irrational delusions.
Furthermore, governmental ownership of press and media entities breeds distrust; citizens
will look to foreign newsgatherers for their own truth. What they may receive, though, is foreign
propaganda. A well-informed populace can interact properly with its environment; decisions of free
citizens who have access to all necessary information contain truth.
3.
Licensing of Press and Media Entities
The power to license is the power to deny the publication or distribution of information.
Within the American historical tradition, publications such as pamphlets and newspapers were
important tools in the fight for liberty. In the United States today, the government licenses and
regulates private broadcasters and publishers. The Federal Communications Commission, for
example, has required media entities to discuss public issues with fairness. The United States
Congress has rejected total government ownership and control, but many other countries around the
world have accepted it.
Licensing is a form of prior restraint; it prevents communication from ever occurring. Hence,
licensing must be viewed with extreme caution because to deny the dissemination of information to
the populace is to wound individual liberty. Typically, if a licensor’s authority is defined by narrow,
objective, and definite standards, it might not offend the freedom of the press. Conversely, typical
problems that can occur with government licensing involve overbreadth, that is, a license vesting the
234
274 U.S. 357, 375-76 (1927).
CONCEPT PAPER ON MEDIA LAW
81
government with powers that are too broad—the uncontrolled power to deny licenses, for
example—and vagueness.
A specific example of a problem of governmental licensing of press and media entities is the
potential power of the government to affect the flow of information throughout society by allowing
or disallowing media combinations or mergers. Antitrust concerns may arise if mergers reduce the
competitiveness of newsgathering. For example, cable companies and telephone companies are
competing in increasingly direct ways. How can the government protect the rights of both media
entities and consumers? In this capacity, the government must balance the natural desire of
broadcasters to increase their market share with the right of the public to have access to an
uninhibited marketplace of ideas.
4.
Allocation of Resources by the Government
Closely related to government licensing of press and media entities is the need of
governments to allocate precious resources among press and media entities. In this context,
broadcast frequencies allotted by the United States Government shall serve as an example.
Private media entities believe, quite naturally, that the First Amendment allows them to
broadcast whatever they choose, even to the exclusion of differing views. The government, however,
considering the rights of viewers to be of paramount importance, ideally would like to see the scarce
frequency slots or channels contain information reflecting as many controversial community views
as possible.
If the print and broadcast media are viewed as a watchdog over government, as an adversary
in the political process, can any government compel such private licensees to broadcast material
without hurting First Amendment guarantees? Once again, governments must balance the interests
of viewers and the media, both of whom want access to finite broadcast and print resources.
5.
Regulation of the Press and Media
Regulation of the press and media by the United States Government involves balancing the
interests of pure free speech, including confidential access by newsgatherers to government
documents, with those of privacy, the nonconsenting public, threatened minors, and national
security.
The United States Supreme Court has recognized that “debate on public issues should be
uninhibited, robust, and wide-open ... [possibly including] vehement, caustic, and sometimes
unpleasantly harsh attacks on government and public officials.”235 Must the government, however,
remain neutral in the marketplace of ideas? Does the Constitution allow the government to regulate
the press and media based on the content of their material? Can it regulate all channels by which
information is sent, including the Internet and the World Wide Web?
In the United States, material that invades one’s privacy, including that sent through on-line
235
New York Times Co. v. Sullivan.
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services, that is considered obscene, that intrudes on the nonconsenting public, that threatens minors,
or that threatens national security can be regulated but only within certain constitutional limitations
and after careful analysis.
Competing with these categories, though, is the constant desire of the media as watchdog
and adversary to have access to private and government documents and facilities and judicial,
legislative, and administrative proceedings. Federal legislation, such as the Freedom of Information
Act, and “shield laws,” which protect the identity of confidential press sources, have facilitated this
desire.
However, problems arise whenever the media’s need to gather and disseminate information
conflicts with the constitutionally-guaranteed rights of criminal defendants, for example, or the
ability of prosecutors to protect the public by building cases against defendants. In these situations,
issues are complex and answers are often vague and hard to determine.
6.
Taxation of Press and Media Entities
Attempts by local, state, and federal authorities in the United States to raise revenue by
taxing press and media entities involve sensitive First Amendment issues, and United States courts
analyze them with care. One of the most serious First Amendment conclusions relating to
governmental taxation of the press and media is that such taxation is an unconstitutional prior
restraint on media publications. Indeed, such a conclusion by itself can create a presumption that the
taxation is unconstitutional. The threat of burdensome taxes in such a context is seen as inhibiting
the desire of the media to critically analyze the government, and, therefore, an important restraint on
government is removed.
As a result of these concerns, taxation of the press and media is suspect if it is selective, that
is, if the content of the material determines the level of taxation.
VI.
Conclusion
The freedoms that Americans cherish did not emerge at once complete and full-blown.
Instead, they were won slowly, incrementally, over time, and often as the result of bloody
struggle. In the final analysis, they are words in the First Amendment to the United States
Constitution and in the pages of the opinions of the United States Supreme Court. For those
words to have reality and meaning, and if they are to survive, something more is required.
During the Second World War, a famous American judge, Learned Hand, defined that something
more as the Spirit of Liberty:
I often wonder whether we do not rest our hopes too much upon
constitutions, upon laws, and upon courts. These are false hopes; believe me,
these are false hopes. Liberty lies in the hearts of men and women; when it dies
there, no constitution, no law, no court can even do much to help it. While it lies
there it needs no constitution, no law, no court to save it. And what is this liberty
which must lie in the hearts of men and women? It is not the ruthless, the
unbridled will; it is not freedom to do as one likes. That is the denial of liberty,
and leads straight to its overthrow. A society in which men recognize no check
CONCEPT PAPER ON MEDIA LAW
upon their freedom soon becomes a society where freedom is the possession of
only a savage few, as we have learned to our sorrow.
What then is the spirit of liberty? I cannot define it; I can only tell you my
own faith. The spirit of liberty is the spirit which is not too sure that it is right; the
spirit of liberty is the spirit which seeks to understand the minds of other men and
women; the spirit of liberty is the spirit which weighs their interests alongside its
own without bias; the spirit of liberty remembers that not even a sparrow falls to
earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand
years ago, taught mankind that lesson it has never learned, but has never quite
forgotten, that there may be a kingdom where the last shall be heard and
considered side by side with the greatest.
This spirit of liberty shall never cease to exist within the hearts and minds of men and women.
83