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. Thus, according to Justice White's for unlawful assembly and petit theft. Both the analysis, if a generally applicable criminal statute and Pioneer Press and Star Tribune published the story tort law, for example, does not single out journalists and, despite their reporters' protests, identified for their newsgathering practices, the statute or law Cohen as the source of the information. does not offend the First Amendment. This simple Cohen was subsequently fired from his job. He statement of the law, however, is not so easily applied stied the newspapers' publishers alleging fraudulent to newsgathering practices. misrepresentation and breach of contract. Initially Although Justice White listed several cases to successful at the trial court level, Cohen had his support his opinion that the doctrine of "generally $500,000 punitive damage award overturned by the applicable laws" applies to newsgathering practices, Minnesota Court of Appeals after the court found critics of the Cohen case argue many of the cases to that he had failed to establish a fraud claim." The which he referred involved general economic regula- Minnesota Supreme Court also later struck down tions that have no direct bearing on journalistic Cohen's $200,000 compensatory damage award after activities. Thus, they argue these cases support a far finding that his contract action would violate the less entrenched doctrine than what post-Cohen cases newspapers' First Amendment rights if it were recog- would suggest. The cases involving general econoin- nized. The U.S. Supreme Court granted certiorari. ic regulations state only that economic regulations of Justice White rejected the newspapers' defense general applicability may be imposed on businesses that the case was controlled by those cases that held engaged in First Amendment activities such as news- "if a newspaper lawfully obtains truthful information gathering. These cases do not address criminal about a matter of public significance then state offi- statutes or tort laws that do not constitute economic cials may not constitutionally punish publication of regulation, but which still may be applied to limit the information, absent a need to further a state newsgathering practices, such as the three charges interest of the highest order." Instead, Justice that Lyden presently faces - theft, temporary theft, White said that the case was controlled "by the and motor-vehicle tampering. equally well-established line of decisions holding While Justice White did cite to two newsgather- that generally applicable laws do not offend the First ing cases that supported his "generally applicable Amendment simply because their enforcement law" doctrine," critics say these cases do not stand for against the press has incidental effects on its ability the proposition that requiring the press to comply ' to gather and report the news." Determining that with generally applicable laws has no First Minnesota's doctrine of promissory estoppel (the Amendment significance. Rather, critics have basis upon which Cohen's breach of contract claim pointed out that Justice White decidedly ignored the was based) was such a law of general applicability, fact that these cases really stand for the proposition Justice White applied it to the newspapers." Justice that the impact of imposing generally applicable laws White added, too, that a long line of cases has clear- on the press must be carefully balanced against First ly established the fact that the First Amendment Amendment interests before they can be so applied. extends protection only to information that has been For instance, in Branzburg v. Hayes, Justice White lawfully obtained." Critics of the Cohen case argue opined that the First Amendment affords journalists 25 AuGtUSw 2000 / BENCH & BAR no special privilege of protecting the identity of their ly scenario is that the Lyden case will reach a plea sources by refusing to testify before a grand jury. agreement before First Amendment interests are Justice White even reiterated the general applicabil- applied. As a result, the Lyden facts form a poor ity doctrine and cited several of the same cases he vehicle to bring about a clearer definition of news- would later cite in Cohen as support. However, crit- gathering and to ease the restrictive bearing of Cohen ics note that Justice White undermined his own posi- and its progeny. tion by admitting that "[n]ewsgathering is not wirh- Lyden initially characterized his actions as the out its First Amendment protections.... We do not typical investigation journalists normally engage in expect courts will forget that grand juries must oper- and defended it as "aggressive reporting," the goal of ate within the limits of the First Amendment as well which was to procure the evidence ' necessary to as the Fifth." Thus, critics of the Cohen decision broadcast a fully researched, public-interest story. argue that Branzburg, despite Justice White's con- Lyden's news manager agreed, reasoning that such struction, should actually stand for the proposition conduct, while pushing the envelope of acceptabil- that imposing generally applicable laws on the press ity, falls within the realm of protected newsgather- must be carefully balanced against First Amendment ing that is in the grey area of legal conduct, much protections. like trespassing onto a crime scene in pursuit of a A similar examination of the other newsgather- story. That defense may survive judicial scrutiny if ing case cited by Justice White, according to these Lyden's conduct were only trespass. However, same critics, reveals the same misstatement of the Lyden is charged with tampering with a private law. In Zacchini v. Scripps-Howard Broadcasting Co., vehicle, theft, and temporary theft. Justice White, writing for the majority, reversed the Still, Lyden may refute these allegations on Ohio Supreme Court's holding that a First grounds that these crimes require the element of Amendment privilege prevented a circus performer intent (e.g., taking with intent to keep for himself or from recovering damages from a television station deprive the owner of it) - something he lacked - that taped and aired his 15-second "human cannon- thereby rendering him inculpable. Moreover, ball" performance in its entirety without his consent. Lyden's defense, as many First Amendment advo- Zacchini, as a result of Justice White's opinion, has cates would agree, ought to include what his conduct widely been interpreted to hold that the First affords the public, the state, and, arguably, the Amendment does not require states to provide a "newsworthiness" accused. For instance, the tape may be instrumental defense or any other First in the prosecution of the accused; alternatively, it Amendment balancing requirement. But like Justice may even serve to aid the accused's defense depend- White's erroneous interpretations of law in ing on the full contents of the videotape. The theft Branzburg, critics insist Zacchini does not stand for of the videotape and its subsequent broadcast that proposition either. Rather, Zacchini simply says informed the public of what Lyden called "a vicious- only that the First Amendment did not compel Ohio ly inhumane sport," giving it a first-hand look at an to let the press broadcast the entire performance. illegal sport taking place in Minnesota. His attorneys However, under the "fair use" doctrine, codified should likely argue this public exposure would not within the Copyright Act of 1976, the press is, in have occurred but for Lyden's aggressive reporting. fact, afforded with a First Amendment privilege for Unfortunately, this defense may be insufficient to taking someone else's performance without consent. diffuse the charges and evidence weighed on Lyden under the scale of criticism from his colleagues who UNLAWFULLY ACQUIRED INFORMATION denounced his conduct as outside the scope of rou- Another reason Justice White denied some tine newsgathering. degree of constitutional scrutiny in Cohen is the fact Conversely, sufficient facts in Lyden's case tip the that the Pioneer Press and Star Tribune did not scale away from First Amendment protection. The "obtainH Cohen's name 'lawfully' in this case."" three charges levied against Lyden - theft, tempo- However, Cohen's name was not unlawfully rary theft, and motor-vehicle tampering - are all obtained: Cohen freely identified himself as the laws of general applicability. Justice White's analysis source of information to reporters, and there was no in Cohen, ironically involving Twin Cities newspa- fraud or misrepresentation in its acquisition. As a pers, will likely be used as the primary legal authority result, Justice White's analysis of unlawfully acquired by prosecutors against the Minneapolis television information is merely dicta. Yet, state and federal reporter. This analysis will likely make fair use of the courts in post-Cohen decisions have construed, or surge of criticism against Lyden's conduct from his misconstrued, the doctrine of "unlawfully acquired colleagues. They appear to disagree with his charac- information" as black-letter law without any skepti- terization of his newsgathering efforts as "aggressive cism or further discussion or legal analysis. reporting." In fact, the Minnesota Chapter of the Society of Professional Journalism has described THE LYDEN CASE AND FIRST Lyden's conduct as unethical and "quite likely a AMENDMENT JURISPRUDENCE. crime." It is not too removed to believe that a court So what protections can KMSP-TV reporter Tom would consider the views of others in the profession Lyden expect? In the grand scheme of things, admit- when conducting a First Amendment protection tedly not much. While parts of Lyden's acts may analysis of such behavior. A denouncement from a arguably lie within the arena of protected newsgath- peer organization could possibly encourage a court to ering, significant other elements of the manner in readily adopt Justice White's analysis and conclusion which he obtained the videotape will likely push his of similar acts as a flagrant violation of laws of gener- conduct outside the protection of traditional First al applicability. Accordingly, such a court would not Amendment jurisprudence. However, the more like- extend First Amendment protection to Lyden's acts. 26 AUGUST 2000 / BENCH & BAR "the pressing issue now is whether Lyden's prosecution will be determined in light of First Amendment interests"

CONCLUSION 7 See, e.g., U.S. v.O'Brien, 391 U.S, 367 (1968). First Amendment jurisprudence has not evolved significantly to clearly define newsgathering and 8 See Branzhurg v. Hayes, 408 U.S. 665 (1972) ("Nor isit delineate the types of protections as it has for publi- suggested that newsgatheringdoes not qualifyfor First Amendment cation. This evolutionary stump renders the Lyden protection; without some protection for seeking out the news, free- case a poor vehicle to generate the sort of growth in dom of the press could be eviscerated. "). case law enjoyed by publication. While Lyden's attorneys may seek for him the protections under 9 Smith v.Daily Mail Puhl'g Co., 443 U.S. 97, 104 (1979) the First Amendment that are afforded other jour- ("A free press cannot be made to rely solely upon the sufferance of nalists who venture into the grey arena of protection ,government to supply itwith informtion. "). (e.g., trespass), the facts and circumstances sur- rounding Lyden's efforts to pursue a story will likely 10 Richmond Newspapers, Inc. v.Virginia, 448 U.S. 555, render such efforts futile. Trespassing onto private 586 n.2 (1980). property, tampering with a parked vehicle thereon, and taking a tape (which he eventually surrendered 11Desnick v.Capital Cities/ABC, Inc., 851 E3d 1345 (7th Cir. to local authorities) probably cast Lyden's acts well 1995). beyond the protective arms of the First Amendment. Assuming the case does not first 12 See Tommy Sangchompuphen, "Stripping United States v. result in a plea bargain, the Lyden facts still present Playboy Entertainment Group Down to the Bare Essentials: a poor test case to push the envelope of the law Why Keeping Abreast of First Amendment Issues in Developing regarding newsgathering, especially in view of the Technology Requires Predictabilityand a Return to Strict severe restrictions imposed on First Amendment Scrutiny," Hamline Law Review, 2000. protections by the Cohen court. That case and day are in the distant future. ED 13 Cohen v.Cowles Media Co., 445 N.W.2d 248, 260 (Minn. App- 1989). NOTES I Ton Lden, "Lyden Apology" (visited May 25, 2000) 14 Cohen, 501 U.S_ at 668-69 (quoting Smith v. Daily Mail thttp://www kmsp.com/ news/locallstomy.aspcontent id=367231. Pub'g, 443 U.S., 97, 103 (1979)).

2 Paul Walsh, "Sherburne County Charges Ch. 9 reporter in 15 Id. at669. Taking of Videotape, " Star Tribune May 17, 2000. 16 Id. 3 Id. 17 Id.at 669. 4 See Marshall H. Tanick, "Commentary: reporters are too quick U.S. t pronounce colleague guilty," Star Tribune, May 26, 2000 18 See Branzburg v.Hayes, 408 665 (1972); see also Zacchini v. Scripps -IHoward Broadcasting Co., 433 U.S. 562 5 Society of ProfessiondJournalists Board of Directors - (1997). Minnesota Pro Chapter, "MN-SPJ Rejects KMSP-TV News Gathering Tactics," June 15, 2000. 19 Id. at 200.

6 See Vincent Blasi, "The Checking Value in First Amendment 20 Cohen, 501 US. at 671 Theory, 1977 At. B. Found. Res. J. 521. 527.

Tommy Aklilu Dunlap is an Sangchompuphen is associate with an associate with Bassford, Lockhart, Bassford, Lockhart, Truesdell & Briggs in Truesdell & Briggs, Minneapolis, where he practicing general torts practices in general lia- and insurance law for bility defense and both plaintiffs and employment law. defendants. 27 AUGUST 2000 / BENCH & BAR