Testing the Limits: When Aggressive Newsgathering Becomes Illegal Conduct
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TESTING THE LIMITS: WHEN AGGRESSIVE NEWSGATHERING BECOMES ILLEGAL CONDUCT First Amendment jurisprudence ensures broad protections in speech, but provides fewer guidelines on gathering the news. One instance involvingtrespass may be a poor test case to push the envelope of the law regarding newsgathering. BY TOMMY licly apologizing on the air: "Caught in the rush of reporter Tom Lyden pursued the the story, I went too far. Once I viewed the tape, SANGCHOMPUPHEN story of a professional boxer and saw more than two hours of dog-fighting footage, accused of staging illegal dog AND I felt I had two obligations. First, turn the tape over fights. When that story eventual- to the police because it showed a crime. Second, AKLILU DUNLAP ly aired, little did Lyden realize inform the public about a viciously inhumane thatApril the story27, would2000, beKMSP-TV easily sport.' Onupstaged by the manner in which he pursued it. As Lucy Dalglish, executive director of the part of his investigation of the story, Lyden took a Reporter's Committee for Freedom of the Press in videotape depicting dogfights from a car parked on Arlington, Va., said that reporters being charged in private property where 13 pit bulls had been seized. this country is rare.' While it is not unusual for After making a copy of the tape, Lyden turned over reporters to be arrested, Dalglish, a former media law the original copy to Sherburne County authorities attorney with Dorsey & Whitney and a former on May 2, and KMSP-Tv aired the dogfighting tape Pioneer Press reporter, said those cases often involve the next day. trespassing at crime scenes by reporters crossing After accusations first flew that he committed police lines. crines while gathering information for that story, Despite the warnings of First Amendment advo- Lvden simply defended his actions as "aggressive cates to reserve judgment on Lyden's conduct until reporting." Days later, criticisms from his profession- the criminal charges against him have been resolved, al colleagues surfaced. Eventually, Sherburne many of Lyden's colleagues dismissed his "aggressive with three reporting" excuse and denounced his conduct as County prosecutors formally charged him 4 misdemeanor counts theft, temporary theft, and unethical. In fact, the Minnesota Chapter of the motor-vehicle tampering. Lyden responded by pub- Society of Professional Journalists issued a harsh 23 AUGUST 2000 / BENCH & BAR "'he Cohen decision and state and federal courts' reliance on the language in Cohen have evolved legal doctrines to the point where they are ... legally unsupportable . ..." statement shortly after the allegations against Lyden however, the Supreme Court has only occasionally surfaced, stating that not only did Lyden act unethi- considered newsgathering, and even when the Court cally when he took the videotape, but he acted in a has done so, its rules have not always been clear. For fashion not condoned by professional journalists in instance, the Supreme Court has held that the First pursuit of a story. In the meantime, KMSP-TV has Amendment affords some degree of protection for stated that it was conducting an internal investiga- newsgathering, s but the scope of that protection is tion and reserved the right to take disciplinary action not clearly understood. The Supreme Court has also against Lyden once legal issues were resolved. explained that First Amendment protection extends Journalism ethics aside, the pressing issue now is to "routine newspaper reporting techniques," but whether Lyden's prosecution will be determined in what exactly is "routine" is also not clearly under- light of First Amendment interests. Moreover, if stood." Courts have stated that journalists, as com- indeed the Sherburne County court finds that Lyden pared to the general public, have no superior right of engaged in illegal newsgathering practice, will that access to people and information; however, some decision have a "chilling effect" on the entire media courts have sometimes given preferential treatment industry and prevent important information from to journalists." Finally, the U.S. Supreme Court has being uncovered? An analysis of the relevant law repeatedly asserted that the First Amendment does and Lyden's own admission of his wrongful acts indi- not protect journalists from torts and crimes com- cate that this case will likely have no effect on First mitted while gathering information; however, other Amendment protections. However, assuming the courts have sometimes gone out of their ways to pro- case is not resolved by plea bargain and it goes up the tect them." (In fact, one has to wonder whether the appellate ladder - an unlikely scenario indeed - Sherburne County prosecutors are not already afford- Lyden's prosecution may serve to clarify the law ing Lyden some protection by stating that they are regarding newsgathering torts and crimes, something not seeking jail time for him should he be convicted recent cases have not been able to do. of any of the misdemeanors. Each charge carries a One of the reasons why the law has been slow in maximum fine of $700 and 90 days in jail.) clearly defining what are permissible newsgathering Because so few cases involve a journalist whose practices stems from Cohen v. Cowles Media Co., 501 acts are blatantly unlawful (arguably in contrast to U.S. 663 (1991), wherein the U.S. Supreme Court Lyden's own admission of wrongdoing), and even based its decision on a misstatement of the law. fewer of these cases actually go to trial, the question Unfortunately, the Cohen decision and state and fed- of whether a particular newsgathering activity is eral courts' reliance on the language in Cohen have accorded First Amendment protection may not be evolved legal doctrines to the point where they are definitively answered soon. This uncertainty in the not only legally unsupportable but also deny journal- law is not surprising considering First Amendment ists the First Amendment protections they should jurisprudence has largely evolved as specific issues deserve under the U.S. Constitution. Lyden's arise. However, perhaps one of the most detrimen- allegedly illegal newsgathering acts serve as a conve- tal events in this natural evolution of First nient vehicle to take a close look at the Cohen case Amendment jurisprudence is the U.S. Supreme and its impact on subsequent newsgathering cases. Court's opinion in Cohen v. Cowles Media Co., a case involving the Pioneer Press and Star Tribune newspa- FIRST AMENDMENT PROTECTION pers, which has served as the legal backbone for FOR NEWSGATHERING many newsgathering opinions coming out of state "Newsgathering" is a term used to describe the and federal courts today. broad range of activities journalists undertake to col- lect the information they intend to publish or broad- COHEN V. COWLES MEDIA CO. cast. Without First Amendment protections, jour- Cohen has hardened into doctrines that preclude nalists would not be able to perform what some First Amendment protection for newsgathering 6 torts observers call their "watchdog" duties. It was, after and crimes. Once it was all said and done, the all, the protections of the First Amendment that per- Supreme Court, with Justice White writing the five- mitted Bob Woodward and Carl Bernstein of The to-four majority opinion, concluded that the First Washington Post to pursue leads that eventually Amendment offers no protection from the enforce- fueled President Nixon's decision to leave the White ment of "generally applicable laws" against news- House. gatherers and applies only to "lawfully acquired Since the First Amendment applies to both information." A few years later, the significant legal speech and some forms of conduct,' there is no rea- impact of the Cohen case on newsgathering was made son to think that newsgathering practices should not apparent when a jury awarded $5.5 million in puni- be afforded any protections. Notwithstanding the tive damages against ABC News in a lawsuit against constitutional applicability of the First Amendment, Food Lion, Inc. While philosophically the verdict 24 AUGUST 2000 / BENCH & BAR "the Supreme Court has held that the First Amendment affords some degree of protection for newsgathering, but the scope of that protection is not clearly understood" could have represented a possible "chilling effect" on that Justice White, in reaching these conclusions aggressive reporters who might find it necessary to about "generally applicable laws" and "unlawfully (or even find it impossible not to) commit torts or acquired information," misinterpreted and misstated crimes while covering important news stories that prior case holdings and included confusing dicta in could not be covered any other way, its practical the majority opinion. State and federal courts have effect is yet unclear. since relied on Justice White's opinion in Cohen as A close look at Cohen shows just how First the law of the land. As a result, First Amendment Amendment jurisprudence was diverted from its nat- defenders say, many post-Cohen cases have perpetu- ural evolutionary track. Dan Cohen was a public ated this flawed legal analysis and given legal signif- relations executive who worked for Republican icance to the dicta contained in Cohen in order to Wheelock Whitney during his 1982 bid for governor. punish newsgathering practices. Less than a week before Minnesota's general elec- tion, Cohen contacted a number of journalists and GENERALLY APPLICABLE LAWS offered them information concerning a rival DFL Justice White's doctrine of "generally applicable candidate in exchange for a promise of confidential- laws" is a commonsensical interpretation of the law: ity. Several reporters, including those working for if a law of general applicability was not designed to the Pioneer Press and Star Tribune, accepted his offer infringe on a fundamental right, then any burden and the condition attached to it. Cohen provided that a law might impose on that fundamental right is the reporters with public court documents showing only incidental and, therefore, of no constitutional that the DFL candidate had previously been arrested significance.