Sometimes instead of seeking a court’s help in obtaining documents or access or instead of covering judicial proceedings, journalist become unwilling participants in the legal system. Because the journalist’s role in “assur[ing an] unfettered interchange of ideas,” Roth v. U.S., 354 U.S. 457 (1957) (obscenity case), courts and state federal statute and constitutions provide journalists with considerable protection in performing their role. But that protection is not unfettered.
Source of information
Because journalists gather and retain information that attorneys and litigants may find useful in pursuing legal actions or that law enforcement or other investigators may desire, journalists can be attractive, though usually unwilling sources.
Courtroom battles over information fell into two main catergories: One involved confidential sources of stories. The other notes or “out-takes.”
During the 1960s and 1970s, reporters, editors and news organizations often argued that both types of information were protected by the First Amendment to the U.S. constitution and, therefore, were outside the scope of search warrants, subpoenas and other court orders.
The U.S. Supreme Court, however, found that there was no absolute protection, especially in the context of criminal investigations. Zurcher v. Stanford Daily Student, 436 U.S. 547 (1970)(search warrant); Branzburg v. Hayes, 408 U.S. 65 (1972) (confidential source). Similarly, the Court found in U.S. v. Nixon, 418 U.S. 654 (1974), that even the President had to comply with a subpoena if persons involved in legal proceedings could show he had documents relevant to an ongoing case.
In response, news organizations changed their tactics and many state legislatures, including, Indiana, passed statutes providing a journalistic privilege protecting disclosure of confidential sources, e.g., Ind. Code SS 34-46-4, and Congress passed the Privacy Protection Act of 1980, 42 U.S.C. 2000aa, prohibiting law enforcement officials from using a search warrant to search news rooms unless they suspect a reporter of being involved in a crime or immediate action is needed to protect bodily harm, loss of life or destruction of the material.
They – and private parties – can still seek specific documents through a subpoena.
In 1996, buoyed with a revigorated interest in state consitutional law, an Indianapolis television station unsuccessfully attempted to resist disclosure of unaired portions of an interview with a criminal suspect by claiming that Article I, Section 9, of the state constitution protected the documents from disclosure. The Indiana Supreme Court rejected the claim in In re WTHR-TV, 693 N.E.2d 1 (Ind. 1996).
In contrast, the First Amendment broadly protects journalists attempting to disseminate the information they have gathered.
The U.S. Supreme Court has interpreted the free press provision of the First Amendment as prohibiting prior restraint or orders forbidding journalists from printing or broadcasting stories. For example, in New York Times v. United States, 403 U.S. 713 (1971), the U.S. Supreme Court rejected the government’s efforts to prevent disclosure of documents critical of the Vietnam War even though authorities claims disclosure would undermine the war effort, and in Nebraska Press Association v. Stuart, 427 U.S. 539 (1976), the Court held that a broad pre-trial “gag order” issued against the media had over-reached and that the right of the criminal defendant to a fair trial could be protected through less drastic means such as a change of venue, postponement of the trial, careful questioning of jurors, etc.
Gag orders issued against persons other than the media, however, are not necessarily considered prior restraints in Indiana and may be permitted in certain circumstances.
For example, in South Bend Tribune v. Elkhart Circuit Court, 691 N.E. 2d 200 (Ind. Ct. App. 1998), an order placed on trial participants prior to trial forbidding them from discussing certain aspects of a murder case before trial case with all members of the media was upheld. In contrast, a preliminary injunction forbidding a litigant from engaging potentially defamatory speech was overturned in Mishler v. MAC Systems Inc. 771 N.E.2d 92 (Ind. Ct. App. 2002).
While it is possible that the difference in the two cases was that the first was a First Amendment challenge and the second an action under Article I, Section 9 of the Indiana Constitution, it is more likely that the difference hinged on the reason for the orders, the first being to protect against the possibility of a mistrial in a capital case, a matter of general, societal interest, while the second was to protect against possible defamation, which was more a matter of private concern.
This is not to say, however, that journalists cannot be punished after-the-fact for their conduct in getting information or for what they have published. A trial court, for example, could use its contempt powers to enforce a no-contact order with jurors during a course of a trial and newspapers and broadcasters are subject to laws of defamation for what they have printed or broadcast.
Although journalists enjoy wide protection in disseminating the information they have gathered, they can be called to answer for injury to reputation they cause by printing or broadcasting untruthful information.
Defamation is usually defined as statements (1) published or disseminated to others, (2) identifying a person , whose (3) reputation is damaged, (4) with malice (5) causing harm. Defamation or libel can result from accusations of a crime, damage to professional reputation, accusation of serious immorality or having a “loathsome” disease.
One point of confusion is what consititutes “malice.” Generally, the term is equated with falsehood or misinformation as opposed to animous or state of mind. The United States Supreme Court has extended First Amendment protection to journalists in defamation actions by public officials and public figures unless “actual malice,” or deliberate use of falsehood is shown, New York Times v. Sullivan, 376 U.S. 254 (1964); Butts v. Saturday Evening Post, 388 U.S. 130 (1967) .
Because private individuals may be able to recover in defamation actions where a journalist negligently as opposed to deliberately or recklessly disseminated a falsehood, there has been much litigation over which standard should be used when harmful untruths are published about private entitities.
The debate about which standard of malice a private individual has show in defamation cases in Indiana was rendered academic in 1999 in the case of a newspaper that had accurately reported that a restaurant had been closed by local health inspectors but erroneously stated in the headline that rats had been found at the establishement.
In Journal-Gazette Co. v. Bandido’s, 712 N.E.2d 446 (Ind. 1999), a divided Indiana Supreme Courtheld that both private individuals and public figures must prove actual malice to recover in a defamation suit involving matters of public or general concern.
The dissenters in the case relied on provisions in Article I, Sections 9, 10 and 12 of the Indiana Constitution stating that courts should be open to provide remedies to persons whose reputations had been injured and that speakers or writers who abuse the right of speech could be held responsible for the abuse.
Truth or good faith is a defense to defamation actions at common law and by statute and constitutional provision in Indiana. Moreover, an Indiana statute limits damages in suits against the news media outlets if a retraction correcting the false information is published prominently and promptly. Ind. Code SS 34-15-3.
Ironically, litigants, witnesses and attorneys are generally protected by “privileges” that protect them from defamation when testifying or arguing in judicial proceedings. Although Indiana courts do not appear to have addressed what happens to journalists who cover such proceedings and report on such statements, courts in some jurisdictions grant journalists protection to report on such proceedings providing the reporting is full, fair and accurate.
Invasion of privacy
Even if statements are truthful, journalists can run afoul of the legal system by disseminating certain types of information protected under “invasion of privacy” doctrine or than has been wrongfully obtained. For example, Indiana recognizes invasion of privacy actions for misappropriation of a name or likeness without consent or for other than newsworthy purposes, Felsher v. University of Evansville, 755 N.E.2d 589 (Ind. 2001).
And such a use, for example, in an advertisement, could also implicate Indiana’s Right of Publicity Act, Ind. Code SS 32-36 et seq. Such uses could prompt civil suits. In contrast, the Indiana Supreme Court has refused to recognize an invasion of privacy action involving disclosure of truthful but private facts stating that such a claim was counter to the truth-as-defense provisions of the state constitution. Doe v. Methodist Hospital, 690 N.E.2d 681 (Ind. 1997).
While Indiana courts have not explored invasion of privacy actions in context of someone being depicted in a “false light,” such a depiction could overlap with defamation and, because it has an element of falsity, would not be protected by the same truth-as-defense provisions that protected the HIV-status disclosure in Doe.
The fourth branch of invasion of privacy, intrusion upon seclusion, has been recognized in Indiana where an actual physical invasion of private space has occurred but been rejected where surreptitiously photographed in church. Thus, journalist gathering, as opposed, to disseminating information should also use caution.
In a somewhat related vein, journalists should take particular care not to surreptitiously wiretap telephone conversations or tape-record conversation unless they have the consent of one of the parties to the conversation or to accept, listen or make use of such recordings.
Doing so violates both state and federal wiretap laws, 18 U.S.C. 2510 and Ind. Code SS 35-33.5. Both acts subject violators to civil suits and substantial fines. The acts also protect other mediums such as faxes and computors.
Because the status of newsgatherer and disseminator of information does not generally protect journalists in gathering information, journalist would not be immune from trespass actions for refusing to leave private property, theft or conversion charges or suits for stealing or obtaining stolen documents or fraud actions if they misrepresent themselves in gathering information for a story.
In these respects they are held to the standards of other citizens and their protected status under state and federal constitutions will not apply.