Protecting Investigative Journalism

George Washington Law Review

Volumn 67, Issue 5-6, 1999, Pages 1139-1151

  Thomas Dienes, C ^a  

^a LOYOLA UNIVERSITY CHICAGO   (United States)

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EID: 0041625701     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (99)

1. See Rodney A. Smolla, Privacy and the First Amendment Right to Gather News, 67 GEO. WASH. L. REV. 1097, 1098-106 (1999).
2. See ALVIN TOFFLER, THE THIRD WAVE (1980).
3. 381 U.S. 479 (1965) (recognizing a fundamental constitutional right of privacy extending to the use of contraceptives by married persons).
4. Id. at 510 (Black, J., dissenting).
5. Smolla, supra note 1, at 1097, 1100.
6. Id. at 1138.
7. See id. at 1106-38.
8. See id. at 1112-38. For an excellent media analysis of the legislation, see Legislation Aimed at "Paparazzi" Places All Journalists at Risk: New Laws May Restrict Newsgathering and Influence Publication, LIBEL DEF. RESOURCE CTR. BULL., Dec. 23, 1998.
9. See infra notes 52-54 and accompanying text.
10. See infra notes 57-62 and accompanying text.
11. See infra notes 60-61 and accompanying text.
12. See infra notes 49-50, 52, 64-73 and accompanying text.
13. See infra notes 52, 62-65 and accompanying text. See generally C. THOMAS DIENES, L. LEVINE & R. LIND, NEWSGATHERING AND THE LAW § 1-5, at 14-16 (2d ed. 1999).
14. My concerns are shared by others. See, e.g., John P. Borger, New Whines in Old Bottles: Taking Newsgathering Torts Off the Food Lion Shelf, 34 TORT & INS. L.J. 61, 65-67 (1998);
15. Carolyn K. Foley & David A. Schulz, Damage Considerations When the Press Is Sued for Gathering the News, LIBEL DEF. RESOURCE CTR. BULL., Apr. 30, 1997, at 1, 1-4.
16. 887 F. Supp. 811 (M.D.N.C. 1995). In Food Lion, the plaintiff claimed the defendants committed a variety of newsgathering torts after two ABC producers posed as Food Lion employees to gather information for a segment on Prime Time Live. See id. at 812. The producers secretly recorded hours of videotape, some of which aired in the segment on unsanitary and unsafe practices by the grocery chain. See id. at 816.
17. See id. at 822.
18. See id. at 822-23.
19. See, e.g., Dietemann v. Time, Inc., 449 F.2d 245, 249-50 (9th Cir. 1971) (allowing publication-related damages for intrusion); Belluomo v. KAKE TV & Radio, Inc., 596 P.2d 832, 842 (Kan. Ct. App. 1979) (holding that "a party is entitled to recover compensatory damages for injury resulting from publication of information acquired by tortious conduct"); Prahl v. Brosamle, 295 N.W.2d 768, 781-82 (Wis. Ct. App. 1979) (allowing damages for nonphysical harm subsequent to the trespass).
20. 376 U.S. 254 (1964) (holding that there is no claim for defamation when media report on the official activities of a public official unless the plaintiff can establish actual malice -knowledge of falsity or reckless disregard for truth or falsity - by clear and convincing evidence).
21. 491 U.S. 524 (1989). In Florida Star, the Court held that the First Amendment prevents use of a rape shield statute to establish negligence per se against a newspaper for publishing the name of a rape victim which it legally obtained from a police report. See id. at 539, 541. The Court adopted the holding of Smith v. Daily Mail, 443 U.S. 97 (1979). See Florida Star, 491 U.S. at 537. The Daily Mail Court held: "[I]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." Daily Mail, 443 U.S. at 103.
22. See Deteresa v. ABC, Inc., 121 F.3d 460, 465-66 (9th Cir. 1997); Sanders v. ABC, Inc., 978 P.2d 909, 913-19 (Cal. 1999); Shulman v. Group W Prods., Inc., 955 P.2d 469, 489-97 (Cal. 1998); People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 895 P.2d 1269, 1275-83 (Nev. 1995); infra notes 74-78.
23. See infra text accompanying notes 72-91.
24. See BROOKE KROEGER, NELLIE BLY: DAREDEVIL, REPORTER, FEMINIST 85-99 (1994);
25. David A. Logan, "Stunt Journalism," Professional Norms, and Public Mistrust of the Media, 9 U. FLA. J.L. & PUB. POL'Y 151, 152 (1998).
26. See KROEGER, supra note 23, at 96-99.
27. See Logan, supra note 23, at 152-53.
28. See id. at 153.
29. See MADELON GOLDEN SCHLIPP & SHARON M. MURPHY, GREAT WOMEN OF THE PRESS 137-38 (1983).
30. KROEGER, supra note 23, at 509 (quoting Arthur Brisbane, The Death of Nellie Bly, N.Y. EVENING J., Jan. 28, 1922, at 1).
31. Logan, supra note 23, at 153 (quoting Paul Starobin, Food Lion Expose Was Stunt Journalism: ABC Could Have Done a Devastating Story Without the Tricks, STAR TRIB. (Minneapolis-St. Paul), Jan. 30, 1997, at 21A).
32. See id.
33. UPTON SINCLAIR, THE JUNGLE (1906).
34. See Logan, supra note 23, at 153.
35. See Borger, supra note 14, at 64 n.19 (describing incidents of investigative journalism).
36. See id.
37. See id.
38. See GARY PAUL GATES, AIR TIME: THE INSIDE STORY OF CBS NEWS 224 (1978).
39. See, e.g., Lyrissa C. Barnett, Note, Intrusion and the Investigative Reporter, 71 TEX. L. REV. 433, 433-34 (1992) (describing articles by the Houston Chronicle and an undercover investigation by 20/20 on nursing home conditions).
40. See Houchins v. KQED, Inc., 438 U.S. 1, 8 (1978) (plurality opinion) ("Beyond question, the role of the media is important; acting as the 'eyes and ears' of the public, they can be a powerful and constructive force, contributing to the remedial action in the conduct of public business."); DIENES, LEVINE & LIND, supra note 13, at 13-14; Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. J. 521 passim; Potter Stewart, Or of the Press, 26 HASTINGS L.J. 631, 634 (1975) ("The primary purpose of the constitutional guarantee of a free press was . . . to create a fourth institution outside the Government as an additional check on the three official branches.").
41. See Blasi, supra note 38, at 562; David A. Logan, Masked Media: Judges, Juries, and the Law of Surreptitious Newsgathering, 83 IOWA L. REV. 161, 170-71 (1997) (explaining that the media has the ability, time, and resources to discover and communicate information more efficiently than a public citizen).
42. See Borger, supra note 14, at 64 n.19; supra notes 23-33 and accompanying text.
43. See Logan, supra note 23, at 160-64.
44. See id. at 162-64.
45. See id. at 152.
46. In May 1998, the Cincinnati Enquirer published a special section with twenty-two stories about Chiquita Brands International's business practices, focusing on activities in Latin America. The series alleged, among other things, that Chiquita bribed foreign officials, used dangerous pesticides that were a hazard to both their workers and to local residents, and maintained security measures on its ships that may have been insufficient to prevent their use to transport cocaine. Within two months of the series' publication, the Enquirer had printed a retraction on the front page of a Sunday edition and agreed to run two more front-page retractions and pay a $10 million settlement because of the alleged theft of over two thousand voice mail messages by reporter Mike Gallagher. Although the newspaper admitted that some of the information may have been obtained illegally and unethically, most of the information gathered during the year-long investigation was obtained from first-hand interviews, leaked corporate documents, visits to plantations, and land records in Latin America. By focusing on the improper newsgathering techniques, Chiquita was able to obtain a large settlement without being required to prove the falsity of the articles in court. See Alicia C. Shepard, Bitter Fruit: How the Cincinnati Enquirer's Hard-Hitting Investigation of Chiquita Brands International Unraveled, AM. JOURNALISM REV., Sept. 1998, at 33, 33-37.
47. Popular columnist Patricia Smith of the Boston Globe resigned in June 1998 for fabricating people and quotes in her columns. See Sinéad O'Brien, Secrets and Lies, AM. JOURNALISM REV., Sept. 1998, at 41, 41-42. Two months later, Globe columnist Mike Barnicle also resigned after "serious doubts were raised about the veracity of a column he had written in 1995." Id. at 43. In early July 1998, CNN retracted a story aired on June 7 in the debut of its newsmagazine NewsStand: CNN & Time. See Susan Paterno, An Ill Tailwind, AM. JOURNALISM REV., Sept. 1998, at 23, 23-24. The story alleged that the U.S. military had used lethal nerve gas on a mission in Laos during the Vietnam War. After the story aired, many questions were raised about its validity, and CNN hired constitutional lawyer Floyd Abrams to investigate the editorial process. After two weeks, Abrams determined that "CNN's conclusion that United States troops used nerve gas during the Vietnamese conflict on a mission on Laos designed to kill American defectors is unsupportable." Id. at 23.
48. Popular columnist Patricia Smith of the Boston Globe resigned in June 1998 for fabricating people and quotes in her columns. See Sinéad O'Brien, Secrets and Lies, AM. JOURNALISM REV., Sept. 1998, at 41, 41-42. Two months later, Globe columnist Mike Barnicle also resigned after "serious doubts were raised about the veracity of a column he had written in 1995." Id. at 43. In early July 1998, CNN retracted a story aired on June 7 in the debut of its newsmagazine NewsStand: CNN & Time. See Susan Paterno, An Ill Tailwind, AM. JOURNALISM REV., Sept. 1998, at 23, 23-24. The story alleged that the U.S. military had used lethal nerve gas on a mission in Laos during the Vietnam War. After the story aired, many questions were raised about its validity, and CNN hired constitutional lawyer Floyd Abrams to investigate the editorial process. After two weeks, Abrams determined that "CNN's conclusion that United States troops used nerve gas during the Vietnamese conflict on a mission on Laos designed to kill American defectors is unsupportable." Id. at 23.
49. Personal Privacy Protection Act, S. 2103, 105th Cong. (1998) (introduced by Sen. Feinstein); Personal Privacy Protection Act, H.R. 4425, 105th Cong. (1998) (introduced by Rep. Conyers); Privacy Protection Act of 1998, H.R. 3224, 105th Cong. (1998) (introduced by Rep. Gallegly); Protection from Personal Intrusion Act, H.R. 2448, 105th Cong. (1997) (introduced by Rep. Bono).
50. CAL. CIV. CODE § 1708.8 (West Supp. 1999).
51. See, e.g., Jane E. Kirtley, Freedom of the Press: An Inalienable Right or a Privilege To Be Earned?, 9 U. FLA. J.L. & PUB. POL'Y 209, 209-10 (1998); Note, Privacy, Photography, and the Press, 111 HARV. L. REV. 1086, 1090-91 (1998); John Hiscock, California Restrains Paparazzi, CHI. SUN-TIMES, Jan. 5, 1999, at 26.
52. See, e.g., Jane E. Kirtley, Freedom of the Press: An Inalienable Right or a Privilege To Be Earned?, 9 U. FLA. J.L. & PUB. POL'Y 209, 209-10 (1998); Note, Privacy, Photography, and the Press, 111 HARV. L. REV. 1086, 1090-91 (1998); John Hiscock, California Restrains Paparazzi, CHI. SUN-TIMES, Jan. 5, 1999, at 26.
53. See, e.g., Jane E. Kirtley, Freedom of the Press: An Inalienable Right or a Privilege To Be Earned?, 9 U. FLA. J.L. & PUB. POL'Y 209, 209-10 (1998); Note, Privacy, Photography, and the Press, 111 HARV. L. REV. 1086, 1090-91 (1998); John Hiscock, California Restrains Paparazzi, CHI. SUN-TIMES, Jan. 5, 1999, at 26.
54. See CAL. CIV. CODE § 1708.8(a), (b).
55. See S. 2103, § 3(a); H.R. 4425, § 1(a); H.R. 3224, § 2; H.R. 2448, § 2.
56. See CAL. CIV. CODE § 1708.8(c), (g); S. 2103, § 3; H.R. 3224, § 2.
57. See Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) (upholding a promissory estoppel claim and citing a "well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news"); Zurcher v. Stanford Daily, 436 U.S. 547, 565 (1978) (holding that there is no First Amendment restriction on searches of newsrooms but that the courts should apply "warrant requirements with particular exactitude when First Amendment interests would be endangered by the search"); Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 380-81, 391 (1973) (holding that the press has no special protection from generally applicable antidiscrimination laws); Branzburg v. Hayes, 408 U.S. 665, 690-91 (1972) (holding that reporters have no First Amendment privilege to refuse to disclose confidential information to grand juries); Associated Press v. United States, 326 U.S. 1, 7 (1945) (holding that the press has no special protection from generally applicable antitrust laws); Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937) (holding that the NLRA applies to the press: "The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. He must answer for libel. He may be punished for contempt of court. He is subject to the anti-trust laws. Like others he must pay equitable and nondiscriminatory taxes on his business.").
58. See Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 228-29 (1987) (striking down sales tax of general interest magazines that exempted newspapers and certain content-defined categories of magazines); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 585, 591 (1983) (striking down tax on newsprint and ink that had disproportionate impact on newspapers as "not unrelated to suppression of expression, and such a goal is presumptively unconstitutional"); Grosjean v. American Press Co., 297 U.S. 233, 240-41, 250-51 (1936) (striking down license tax on sale of newspaper advertisements that applied only to the largest newspapers in Louisiana because "it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties").
59. See Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 640 (1994) (quoting Arkansas Writers' Project, 481 U.S. at 228).
60. See CAL. CIV. CODE § 1708.8(c); S. 2103, §§ 3, 4; H.R. 4425, § 1; H.R. 3224, § 2; H.R. 2448, § 2.
61. See The Federal "Anti-Paparazzi" Bills: An Unfocused Shot at the Media, LIBEL DEF. RESOURCE CTR. BULL., Dec. 23, 1998, 1, 6-9 (discussing the not-yet-published statements made at a May 21, 1998 House Judiciary Committee hearing).
62. See Smolla, supra note 1, at 1113; Note, supra note 48, at 1092-93 (acknowledging that such regulations are content-neutral).
63. O'Brien v. United States, 391 U.S. 367, 377 (1968) ("[A] content neutral government regulation is sufficiently justified . . . if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."). There is no requirement that the government use the least burdensome means; it is sufficient if the means are direct and effective. See Ward v. Rock Against Racism, 491 U.S. 781, 797-802 (1989).
64. See Note, supra note 48, at 1094-98, which argues for strict scrutiny because "photographs have tremendous expressive, communicative, and informative value, and photography as a medium of expression depends on the ability of photographers to capture images without undue governmental regulation." Id. at 1095.
65. 478 U.S. 697 (1986).
66. Id. at 704.
67. Courts have applied strict scrutiny in a number of cases in which restraints on newsgathering significantly burdened publication rights. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 13-14 (1986) (Press-Enterprise II) (holding that there is a qualified right to attend preliminary hearings because such proceedings have "historically been open to the press and general public" and "access plays a significant positive role in the functioning" of the proceeding; the right to attend cannot be overcome "unless specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." (internal quotes omitted)); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (Press-Enterprise I) (holding that the presumption of access to voir dire in criminal cases "may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest" and that "[t]he interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered"); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982) (recognizing presumptive right of access to criminal trials and applying strict scrutiny to their closure: "Where . . . the State attempts to deny the right of access [to criminal trials] in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest."); Washington Post Co. v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991) (recognizing a First Amendment-based right of access to a sealed plea agreement and related documents and requiring that Press-Enterprise I standards be met to overcome presumption of access); Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 505, 509 (1st Cir. 1989) (applying strict scrutiny and holding that a statute prohibiting access to court records in criminal cases that had not resulted in a conviction violated the First Amendment); In re NBC, 828 F.2d 340, 344-46 (6th Cir. 1987) (applying Press-Enterprise II standards in recognizing a First Amendment-based right of access to documents and proceedings related to motions to disqualify a judge and to proceedings regarding alleged attorney conflicts of interest); Associated Press v. United States Dist. Court, 705 F.2d 1143, 1145-46 (9th Cir. 1983) (holding that there is a First Amendment-based right of access to pretrial documents which may only be overcome if the trial court makes specific findings that there is a substantial probability that: (1) "irreparable damage to [a defendant's] fair-trial will result," (2) "alternatives to closure will not adequately protect [his] right to a fair trial," and (3) "closure will be effective in protecting against the perceived harm"); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576-77 (1980) (plurality opinion) (guaranteeing public and press's right of access to criminal trials: "The explicit, guaranteed rights to speak and to publish concerning what takes place at a trial would lose much meaning if access to observe the trial could, as it was here, be foreclosed arbitrarily.").
68. See Smolla, supra note 1, at 1110, 1112-38; see also Note, supra note 48, at 1103 ("It would be unfortunate for the United States, with its historical commitment to a strong, assertive press, to respond to recent events with such misguided, unnecessary, and constitutionally suspect legislation.").
69. See Branzburg v. Hayes, 408 U.S. 665, 681 (1972) ("Nor is it suggested that newsgathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated."); see also Richmond Newspapers, 448 U.S. at 576 (guaranteeing public and press's right of access to criminal trials: "[T]he First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors . . . .").
70. See, e.g., CBS Inc. v. Davis, 510 U.S. 1315, 1315-16, 1318 (1994) (Blackmun, Circuit Justice) (staying preliminary injunction prohibiting CBS from airing videotape footage taken at a meat packing factory by a factory employee wearing undercover camera equipment); Florida Star v. B.J.F., 491 U.S. 524, 539, 541 (1989) (holding that the First Amendment prevents using rape shield statute to establish negligence per se against newspaper for publishing name of rape victim after it obtained the information from a publicly released police report); Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 103-04 (1979) (striking down statute allowing prosecution of newspapers for publishing name of juvenile homicide suspect because the newspaper had published "lawfully obtain[ed] truthful information about a matter of public significance" and prosecution was not needed to "further a state interest of the highest order"); Landmark Comm., Inc. v. Virginia, 435 U.S. 829, 837-38 (1978) (holding that newspaper may not be prosecuted for publishing truthful information about the proceedings of a confidential judicial review commission); Nebraska Press Ass'n. v. Stuart, 427 U.S. 539, 562 (1976) (stating that prior restraints are a "most extraordinary remed[y]" and should be imposed "only where the evil that would result from the reportage is both great and certain and cannot be militated by less intrusive measures"); New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam) (holding that the Government failed to meet its "'heavy burden of showing justification for the imposition of such a [prior] restraint'" of the publication of classified documents (quoting Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971))); New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (holding that there is no claim for defamation when media report on the official activities of a public official unless plaintiff can establish actual malice - knowledge of falsity or reckless disregard for truth or falsity - by clear and convincing evidence); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 709-10, 716, 722-23 (1931) (recognizing that prior restraints may only be used in exceptional circumstances and striking down as a prior restraint a statute that suppresses as a public nuisance any newspaper or periodical that publishes scandalous and defamatory matter).
71. See Richmond Newspapers, 448 U.S. at 587 (Brennan, J., concurring) (finding the First Amendment guarantees the public's and the press's right of access to criminal trials to foster informed debate in public issues: "[T]he First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government."); Globe Newspaper Co., 457 U.S. at 604 (Brennan, J.) (recognizing presumptive right of access to criminal trials and applying strict scrutiny to their closure: "The First Amendment is thus broad enough to encompass those rights that, while not unambiguously enumerated in the very terms of the Amendment, are nonetheless necessary to the enjoyment of other First Amendment rights."); William J. Brennan, Jr., Address at the Dedication of the S.I. Newhouse Center for Law and Justice (Oct. 17, 1979), in 32 RUTGERS L. REV. 173, 175-81 (1979). See generally DIENES, LEVINE & LIND, supra note 13, at 14-16, 47-50 (discussing Justice Brennan's structuralist approach).
72. See Richmond Newspapers, 448 U.S. at 587 (Brennan, J., concurring) (finding the First Amendment guarantees the public's and the press's right of access to criminal trials to foster informed debate in public issues: "[T]he First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government."); Globe Newspaper Co., 457 U.S. at 604 (Brennan, J.) (recognizing presumptive right of access to criminal trials and applying strict scrutiny to their closure: "The First Amendment is thus broad enough to encompass those rights that, while not unambiguously enumerated in the very terms of the Amendment, are nonetheless necessary to the enjoyment of other First Amendment rights."); William J. Brennan, Jr., Address at the Dedication of the S.I. Newhouse Center for Law and Justice (Oct. 17, 1979), in 32 RUTGERS L. REV. 173, 175-81 (1979). See generally DIENES, LEVINE & LIND, supra note 13, at 14-16, 47-50 (discussing Justice Brennan's structuralist approach).
73. See Richmond Newspapers, 448 U.S. at 587 (Brennan, J., concurring) (finding the First Amendment guarantees the public's and the press's right of access to criminal trials to foster informed debate in public issues: "[T]he First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government."); Globe Newspaper Co., 457 U.S. at 604 (Brennan, J.) (recognizing presumptive right of access to criminal trials and applying strict scrutiny to their closure: "The First Amendment is thus broad enough to encompass those rights that, while not unambiguously enumerated in the very terms of the Amendment, are nonetheless necessary to the enjoyment of other First Amendment rights."); William J. Brennan, Jr., Address at the Dedication of the S.I. Newhouse Center for Law and Justice (Oct. 17, 1979), in 32 RUTGERS L. REV. 173, 175-81 (1979). See generally DIENES, LEVINE & LIND, supra note 13, at 14-16, 47-50 (discussing Justice Brennan's structuralist approach).
74. See supra notes 13, 50.
75. 487 F.2d 986 (2d Cir. 1973).
76. See id. at 994-95, 998.
77. 924 F. Supp. 1413 (E.D. Pa. 1996).
78. Id. at 1415, 1435.
79. See id. at 1422-31.
80. On Food Lion and other newsgathering cases, see generally Symposium, Undercover Newsgathering Techniques: Issues and Concerns, 4 WM. & MARY BILL RTS. J. 1005 (1996).
81. 895 P.2d 1269 (Nev. 1995).
82. See id. at 1282.
83. Compare Food Lion, Inc. v. Capital Cities/ABC, Inc., 887 F. Supp. 811 (M.D.N.C. 1995) (finding First Amendment considerations were not overriding), with Desnick v. ABC, 44 F.3d 1345 (7th Cir. 1995) (finding First Amendment considerations substantial). See discussion of Desnick, infra notes 78-89 and accompanying text.
84. See Smolla, supra note 1, at 1122, 1129-30.
85. 44 F.3d at 1345.
86. See id. at 1347.
87. See id. 81 See id. at 1348.
88. See id.
89. 83 See id.
90. See id. at 1348-49.
91. See id. at 1349, 1351.
92. See id. at 1352-53.
93. See id. 88 See id. 89 Id. at 1355 (citations omitted) (emphasis added).
94. Cf. Lyrissa B. Lidsky, Prying, Spying, and Lying: Intrusive Newsgathering and What the Law Should Do About It, 73 TUL. L. REV. 173, 234-47 (1998) (arguing for the creation of a limited newsgathering privilege while advocating the strengthening the intrusion tort to increase privacy protection).
95. See supra note 58.
96. in New York Times Co. v. Sullivan, 376 U.S. 254, 288 (1964), the Court, in determining if the statement was made "of and concerning" the plaintiff, refused to allow impersonal criticism of a governmental body to be turned into a personal criticism because to do so would raise "the possibility that a good-faith critic of government will be penalized for his criticism." Id. at 292. In Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990), the Court refused to establish a First Amendment-based "opinion privilege" defense against defamation actions. The Court did acknowledge, however, that for a statement to have an actionable defamatory meaning, the First Amendment requires that the statement be capable both of being proven false (i.e., verifiable) and of reasonably being interpreted as stating actual facts about a person. See id. at 19-20. In Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 513-14 (1991), the Court acknowledged that any alteration of a quotation results in falsity, but such a rule for proving falsity for actual malice purposes would be too stringent and inconsistent with First Amendment principles. Instead, the Court concluded that "[i]f an author alters a speaker's words but effects no material change in meaning, including any meaning conveyed by the manner or fact of expression, the speaker suffers no injury to reputation that is compensable as a defamation." Id. at 516. Since such a statement is substantially true, actual malice-knowledge of falsity or reckless disregard of truth or falsity-could not be established. See generally C. Thomas Dienes & Lee Levine, Implied Libel, Defamatory Meaning and State of Mind: The Promise of New York Times v. Sullivan, 78 IOWA L. REV. 237 (1993) (suggesting the use of defamatory meaning to deal with problems of implied libel).
97. See Smolla, supra note 1, at 1127-28. For a far more restrictive approach to balancing press and privacy interests, see Randall P. Bezanson, Means and Ends and Food Lion: The Tension Between Exemption and Independence in Newsgathering by the Press, 47 EMORY L.J. 895 (1998). Professor Bezanson states: [I] am suggesting that when the press decides to engage in newsgathering conduct that violates generally applicable law, [it,] . . . not the party enforcing the law, should bear the burden of proving that the decision to employ illegal means was: (1) a product of protected editorial judgment, not a product of will or whim or avarice, not a decision based only on medium and commerce rather than message and public need; (2) necessary to serve the public need, not just necessary to achieve the commercial or other interests of the publisher; and (3) justified because the public need is so great that it subordinates public interest in the equal enforcement of law. Id. at 908.
98. 955 P.2d 469 (Cal. 1998).
99. See id. at 490-91 (finding that there is a triable issue as to whether accident victims have a reasonable expectation of privacy in a rescue helicopter that served as an ambulance).