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The Press Behaving Badly

Permanent Link: http://ufdc.ufl.edu/UFE0022505/00001

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Title: The Press Behaving Badly First Amendment Freedoms for News Media and Limitations on Lawful Newsgathering
Physical Description: 1 online resource (338 p.)
Language: english
Creator: Mcnealy, Jasmine
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2008

Subjects

Subjects / Keywords: first, free, freedom, journalism, law, lawful, media, newsgathering, privacy, tort
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: The press plays a central role in American society, providing information and acting as a surrogate for the public. At times, however, journalists' newsgathering methods that fall outside of what is permitted by law. As a result, the journalists have faced civil lawsuits from private individuals and prosecution by the government for their newsgathering methods. The U.S. Supreme Court developed a principle aimed at protecting the First Amendment rights of news outlets that publish lawfully acquired, truthful information. The Court has not answered whether the press could be punished for unlawfully acquiring truthful information and then publishing that information. This dissertation used legal research methods to examine how the courts have decided cases in which members of the press have been sued for wiretapping, intrusion, trespass and committing fraud to gather information, and have then published that information. This dissertation also analyzes how the courts viewed the news organizations? First Amendment defenses.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Jasmine Mcnealy.
Thesis: Thesis (Ph.D.)--University of Florida, 2008.
Local: Adviser: Alexander, Laurence B.
Electronic Access: RESTRICTED TO UF STUDENTS, STAFF, FACULTY, AND ON-CAMPUS USE UNTIL 2009-08-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2008
System ID: UFE0022505:00001

Permanent Link: http://ufdc.ufl.edu/UFE0022505/00001

Material Information

Title: The Press Behaving Badly First Amendment Freedoms for News Media and Limitations on Lawful Newsgathering
Physical Description: 1 online resource (338 p.)
Language: english
Creator: Mcnealy, Jasmine
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2008

Subjects

Subjects / Keywords: first, free, freedom, journalism, law, lawful, media, newsgathering, privacy, tort
Journalism and Communications -- Dissertations, Academic -- UF
Genre: Mass Communication thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: The press plays a central role in American society, providing information and acting as a surrogate for the public. At times, however, journalists' newsgathering methods that fall outside of what is permitted by law. As a result, the journalists have faced civil lawsuits from private individuals and prosecution by the government for their newsgathering methods. The U.S. Supreme Court developed a principle aimed at protecting the First Amendment rights of news outlets that publish lawfully acquired, truthful information. The Court has not answered whether the press could be punished for unlawfully acquiring truthful information and then publishing that information. This dissertation used legal research methods to examine how the courts have decided cases in which members of the press have been sued for wiretapping, intrusion, trespass and committing fraud to gather information, and have then published that information. This dissertation also analyzes how the courts viewed the news organizations? First Amendment defenses.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Jasmine Mcnealy.
Thesis: Thesis (Ph.D.)--University of Florida, 2008.
Local: Adviser: Alexander, Laurence B.
Electronic Access: RESTRICTED TO UF STUDENTS, STAFF, FACULTY, AND ON-CAMPUS USE UNTIL 2009-08-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2008
System ID: UFE0022505:00001


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1 THE PRESS BEHAVING BADLY: FIRST AM ENDMENT FREEDOMS FOR NEWS MEDIA AND LIMITATIONS ON LAWF UL NEWSGATHERING By JASMINE MCNEALY A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLOR IDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2008

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2 2008 Jasmine McNealy

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3 To Ronald & Pamela, . parents are the pr ide of their children. Proverbs 17:6 (NIV)

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4 ACKNOWLEDGMENTS I express my deepest gratitude to Dr. Laurence Alexander, who served as my supervisory committee. I am grateful to him for accepting me as his advisee and for toiling with me to complete this project, and my doctorate. His assistance facilitate d my study greatly. In addition to Dr. Alexander, I woul d like to thank the rest of my committee: Dean Jon Mills, Dr. Cory Armstrong, and Dr. Bill Chamberlin. Th eir efforts and suggestions were greatly appreciated. I am grateful for the love and supp ort of a host of family, friends, and friends who became family. Their support, generosity, and will ingness to listen have been a great help as while I worked to complete this program. este cuento se acabado.

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5 TABLE OF CONTENTS page 0ACKNOWLEDGMENTS...............................................................................................................4ABSTRACT.....................................................................................................................................8 CHAP TER 1 11INTRODUCTION....................................................................................................................99Background.............................................................................................................................131Literature Review.............................................................................................................. .....243Newsgathering and the First Amendment....................................................................... 253Unlawfully Acquired Information...................................................................................313Judicial Analysis and the Freedom of the Press.............................................................. 407Absolutism............................................................................................................... 407Bad tendency and clear and present danger.......................................................... 427Balancing..................................................................................................................441Statement of Purpose and Research Questions....................................................................... 451Methodology...........................................................................................................................461Chapter Outline.......................................................................................................................48222 THEORETICAL PERSPECTIVE.......................................................................................... 501Or of the Press........................................................................................................................551Access to Information.............................................................................................................651Newsgathering and the Law................................................................................................... 711Conclusion..............................................................................................................................74333 WIRETAPPING AND EAVESDROPPING.......................................................................... 751 Wiretap at the Federal Level................................................................................................... 763The Press as Third Party Recipien t of Intercepted Communications.............................. 773Press Participation In The Interception...........................................................................947Not a party to the communication............................................................................ 957Bad purpose..............................................................................................................991 Wiretap at the State Level..................................................................................................... 1113California.......................................................................................................................1113Florida............................................................................................................................1203Illinois............................................................................................................................1223Louisiana.......................................................................................................................1254Maryland....................................................................................................................... .1284Massachusetts................................................................................................................1304Michigan........................................................................................................................1344Minnesota......................................................................................................................1364New Jersey.....................................................................................................................138

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6 4Oregon...........................................................................................................................1394Pennsylvania..................................................................................................................1404Texas..............................................................................................................................1444 Washington....................................................................................................................1452Conclusion............................................................................................................................14644 INTRUSION AND TRESPASS........................................................................................... 1492Intrusion................................................................................................................................1504Home.............................................................................................................................1515 Private Gatherings........................................................................................................1575 Work..............................................................................................................................1645Public Persons...............................................................................................................1735Harassment....................................................................................................................1785In Public...................................................................................................................... ...1842Trespass................................................................................................................................1895Consent..........................................................................................................................1915Trespass and the First Amendment............................................................................... 2015Criminal Trespass.......................................................................................................... 2072Joint Activities With Government Officials......................................................................... 2225Law Enforcement..........................................................................................................2297 Warrant searches.................................................................................................... 2297 Warrantless investigations...................................................................................... 2465Other First Responders.................................................................................................. 2506Other Joint Activities With Government Officials........................................................ 2562Conclusion............................................................................................................................259555 MISREPRESENTATION AND BREACH OF PROMISE................................................. 2622On Fraud and Misrepresentation and Similar Offenses........................................................ 2642Cohen v. Cowles Media Co.................................................................................................. 2692Misrepresentation and Breach of Promise Post-Cohen........................................................ 2776Breach of Promise......................................................................................................... 2776Misrepresentation..........................................................................................................2962Conclusion............................................................................................................................30866 ANALYSIS AND CONCLUSION...................................................................................... 3102Analysis....................................................................................................................... .........3136Research Question 1: Is Unlawfulness a Bar to First Amendment Protection for Newsgathering Activities?.........................................................................................3136Research Question 2: What Value Have th e Courts Placed on Unlawfully Acquired Information and its Use by the Press to Inform the Public?...................................... 3186Research Question 3: What Kind of Scru tiny Have the Courts Used to Decide Cases Brought Against the Media for Unla wful Newsgathering, and How Is the Type of Scrutiny Used Determinativ e of the Outcome of These Cases?.................. 325

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7 3Conclusion............................................................................................................................3286Key Conclusion One......................................................................................................3296Key Conclusion Two.....................................................................................................3306Key Conclusion Three...................................................................................................3316Key Conclusion Four.....................................................................................................3317Future Research.............................................................................................................3327LIST OF REFERENCES.............................................................................................................3348BIOGRAPHICAL SKETCH.......................................................................................................338

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8 Abstract of Dissertation Pres ented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy THE PRESS BEHAVING BADLY: FIRST AM ENDMENT FREEDOMS FOR NEWS MEDIA AND LIMITATIONS ON LAWF UL NEWSGATHERING By Jasmine McNealy August 2008 Chair: Laurence Alexander Major: Mass Communication The press plays a central role in American society, providing inform ation and acting as a surrogate for the public. At times, however, journa lists newsgathering methods that fall outside of what is permitted by law. As a result, the jo urnalists have faced civil lawsuits from private individuals and prosecution by the governme nt for their newsgathering methods. The U.S. Supreme Court developed a princi ple aimed at protecting the First Amendment rights of news outlets that publ ish lawfully acquired, truthful information. The Court has not answered whether the press could be punished fo r unlawfully acquiring truthful information and then publishing that information. This dissertation used legal research methods to examine how the courts have decided cases in which members of the press have b een sued for wiretapping, intrusion, trespass and committing fraud to gather information, and have then published that information. This dissertation also analyzes how the courts vi ewed the news organizations First Amendment defenses.

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9 CHAPTER 1 INTRODUCTION In my view, far from deserving condem nation for their courageous reporting, the New York Times, the Washington Post and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly .01 The American press has a history of engagi ng in questionable behavi or to get a story. From hidden cameras to outright deception, th e people who provide the nation with news seemingly know no boundaries with regard to gath ering information. One journalist had herself committed to an insane asylum to document the care given to poor, mentally ill immigrants.12 Another went undercover in a Ch icago meat-packing plant, later writing a novel that exposed the horrendous and unsanitary meat hand ling practices in the industry.23 Such stories shed light on issues of public interest and in some cases brought about sweeping change. For instance, Upton Sinclairs novel, The Jungle based on his experience in a Chicago slaughterhouse, is credited with sparking the passage of both the Meat Inspection Act and Pure Food and Drugs Act of 1906.34 These changes in the law may not have occu rred, however, without the public outcry that resulted from these stories obt ained through intrepid reporting. Feigning madness and working as a meat-packer may be considered extreme lengths to go to for a story. On the other hand, many jour nalists view such unde rcover reporting as necessary to expose abuses in the public and private sector. That does not mean that this kind of journalism does not have its detractors. Some j ournalism practitioners call these newsgathering 1 New York Times Co. v. United States, 403 U. S. 713, 717 (1971) (Black, J., concurring). 2 See Jean Marie Lutes, Into the Madhouse with Nellie Bly: Girl St unt Reporting in Late Nineteenth-Century America 54 AM. Q. 217 (2002). 3 Upton Sinclair, a journalist, wrote his famous novel, The Jungle after working undercover in a Chicago Slaughterhouse. See Susan Paterno, The Lying Game 19 AM. J. REV. 40, 42 (1997); Mark Feldstein, A Muckraking Model: Investigative Reporting Cycles in American History 11 HARV. J. PRESS/POL. 105, 109 (2006). 4 See Arlene Finger Kantor, Upton Sinclair and the Pure Food and Drugs Act of 1906 66 AM. J. PUB. HEALTH 1202 (1976); see also Justin Ewers, Dont Read This Over Dinner US NEWS and WORLD REPORT, Aug. 15, 2005, at 45.

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10 methods shoddy journalism unworthy of the best tradition of investigative reporting.45 Further, this kind of reporting is seen as nothing more than sensationalism bordering on excessive.56 But journalists have gone, and continue to go to extremes to get the scoop; advances in technology only further their efforts to overcome phys ical barriers to gain access to information considered newsworthy. The invention of th e photocopy machine, for example, allowed a government source to make a copy of a clas sified government study and pass it on to the New York Times and The Washington Post.67 Even before this, advances in photography allowed a New York Daily News reporter in 1928 to snap a picture of an execution from a camera hidden in his shoe.78 Hidden cameras continue to be a favorite tool of broadcast journalists, allowing them to record images for stories on slacking policeme n, shiesty attorneys and patient abuse at health care facilities.89 These newsgathering methods, while examining issues of public concern, have exposed the journalists involved to multimillion-dollar laws uits and criminal convictions. A Southern grocery chain sued the American Broadcasti ng Company (ABC) after reporters from the broadcasters PrimeTime Live news program secured employment at the stores and secretly recorded unsanitary food prepara tion and meat packaging practices.910 In a separate case, a freelance journalist was tried a nd convicted in federal court of receiving child pornography while supposedly researching an article on government sting operations designed to catch child 5 Paul Starobin, Why Those Hidden Cameras Hurt Journalism N.Y. TIMES, Jan. 28, 1997, at A21. 6 Id. See also Lewis Lord, Perils of gotcha journalism U.S. NEWS & WORLD REPORT, Feb. 3, 1997, at 11. 7See Melville Nimmer, National Security Secrets v. Free Speech: The Issues Left Undecided in the Ellsberg Case 26 STAN. L. REV. 311 (1974). 8 Robert Lissit, Gotcha! 17 AM. J. REV. 16, 18-19 (1995). 9 See Lissit, supra note 8. 10 See Food Lion Inc. v. Capital Cities/ABC, 194 F.3d 505 (4th Cir. 1999).

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11 pornographers online.111 A radio journalist was accused of vi olating a federal wiretapping statute for airing a copy of an illega lly recorded cellular phone call.112 The main issue in these cases concerned the extra-legal newsgathering methods and the publication of information acquired through the use of these methods. The U.S. Supreme Court already has developed a doctrine allowing the publication of lawfully acquired information. In essence, the doctrine provides that the publication of lawfully acqui red, truthful information cannot be punished through civil or criminal penalties.113 On the other hand, journalists have often been accused of gaining access to news and information by using unlawful means, as demonstrated in the examples above. The courts have not always favored these methods in spite of their perceived effectiveness for news reporting. The cases above demonstrate that private in dividuals also have not been particularly receptive of journalists unlawful newsgathering methods and the publication of the information found. In spite of this, there ex ists a significant relationship betw een the public and the press. Professor Denis McQuail used what he called nor mative theories of the press, which deal with the manner in which the media should be structur ed and operate within the context of a given society to describe the relationshi p between the public and the press.114 One of the main values espoused by normative theories is that of the public inte rest, and the idea of the press working in the public interest.115 A problem arises, however, in determ ining who gets to decide, and what 11 See United States v. Matthews, 11 F. Supp.2d 656 (D. Md. 1998). See also Amy Trigdell, Newsgathering and Child Pornography Research: The Ca se of Lawrence Charles Matthews 33 COL. J. L & SOC. PROB. 343 (2000). 12 See Bartnicki v. Vopper, 532 U.S. 514 (2001). 13 See infra text accompanying notes 15-100. Lawfully acquired information, in this dissertation, is defined as information obtained using routing reporting practices, without violating some criminal law or causing a civil harm. 14 DENIS MCQUAIL, MCQUAILS MASS COMMUNICATION THEORY 8 (2000). 15 Id at 142.

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12 constitutes the public interest.116 According to Professor Jay Bl umler, three key points must be considered when deciding what is in the public interest in re lation to the media.117 First, the media has to use it power legitimately. Secondl y, public interest considerations must look beyond what is beneficial for the current society. Lastly, the idea of the p ublic interest has to work within the context of that current society.118 McQuail and Blumler are not alone in asserti ng what constitutes the public interest with regard to the media. In deciding cases concer ning press behavior during newsgathering, judges also make pronouncements concerning what is in the public interest.119 In these cases, courts may consider whether the journalis ts behavior while gathering news was in the public interest. Further, the court may decide whether the inform ation the journalists ac quired had some kind of value to the public. In so doing, the courts have, at times, us ed public interest, public concern, and newsworthy wit hout noting a difference between the terms. This dissertation examines the value that the cour ts have placed on the information journalists collect while using unlawful methods to gather news. This dissertation also examines court deci sions and related principles on unlawfully acquired information and the publication of this information. Examining how the courts have decided these newsgathering cases will shed light on how the courts view the issue of First Amendment protection for newsgathering. In so doing it may establish a de facto theory of freedom of the press with regard to the collection of information vi ewed as in the public interest. 16 Id 17 Jay G. Blumler, Wrestling with the public interest in organized communications THE MEDIA IN QUESTION 51, 5455 (K. Brants, et al, eds., 1998). 18 Id 19 VIRGINIA HELD, THE PUBLIC INTEREST AND INDIVIDUAL INTERESTS 183 (1970).

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13 Background The Missouri Group, a team of journalism educat ors from the School of Journalism at the University of Missouri, writes in its well-known textbook that inve stigative reporting begins with the journalist attempting to answer two questions : (1) Is there a story here? and (2) Am I going to be able to get it?120 A negative answer to either of these questions renders further investigation pointless. Of most concern to this dissertation is what happens when reporters find the answer to the second question to be no by any legal means, and continue with the investigation anyway. The issue that this dissertation examines is decades old, famously appearing in New York Times v. United States ,221 otherwise known as the Pentagon Papers case. This case involved the acquisition and publication of information from copies of a confiden tial report on the United States involvement in Vietnam.222 The U.S. Supreme Court did not mention the unlawful acquisition in its per curiam opinion on this case ; instead it focused on whether the government had the ability to restrain the publication of the information. Th e Court held that the government had not met its burden of demonstrating that an injunction against publishing the material from the report was justified.223 None of the five concur ring opinions mention that the report was stolen from the government. Instead, the opinions focused on whet her it was within the power of the Executive and Judicial branches to enjo in publication. Both Justices Black and Douglas asserted an 20 THE MISSOURI GROUP, NEWS REPORTING AND WRITING 493 (6th ed. 1999). 21 403 U.S. 713 (1971). 22 Id. at 714. The report, History of U.S. Decision-Making Process on Viet Nam Policy was copied and given to both the New York Times and the Washington Post See Melville Nimmer, National Security Secr ets v. Free Speech: The Issues Left Undecided in the Ellsberg Case 26 STAN. L. REV. 311 (1974). 23 403 U.S. at 714.

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14 absolutist interpretation of the First Amendment stating, It should be noted at the outset that the First Amendment provides that Congress shall make no lawabridging the freedom of speech, or of the press. That leaves, in my view, no room for governmental restraint on the press.224 The Framers of the Constitution created this protection for the press, according to Justice Black, in order for the press to be able to fulf ill its role in the newly formed democracy.225 Three other concurring opinions discussed the inability of the Executive branch to bar the publication of the information fr om the report without a grant of such power by Congress. Justice White stated that the government errone ously chose to seek an injunction against the press when Congress had provided for criminal sanc tions for the disclosure of information like that in the report.226 Criminal sanctions would not requi re heavy justifications like those necessary for prior restraints to be found constitutional.227 The criminal statute available to the government punished the communication of unlawfully acquired information.228 The actual question concerni ng the publication of unlaw fully acquired information evolved from cases that involved lawfully obtaine d information. One of the first Supreme Court decisions in this line of cases was Cox Broadcasting Corp. v. Cohn .229 In Cox the father of a 24 Id. at 720 (Douglas, J. concurring). 25 Id. at 717. (Black, J. concurring) The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained pr ess can effectively expose deception in government. Id. 26 Id. at 734-738 (White, J. concurring). That the Government mistakenly chose to proceed by injunction does not mean that it could not successfu lly proceed in another way. Id. at 733. Further, Justice Marshall noted that Congress specifically declined to grant the Executive branch th e power to censor the press. Id. at 745 (Marshall, J. concurring). 27 Id. at 733 (White, J. concurring). Prior restraints require an unusually heavy justification under the First Amendment; but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. Id. 28 Justice White stated that the government could have prosecuted the newspapers under the Espionage Act which punishes the willfull[] communicat[ion] of information related to national security by one who had unauthorized possession of the information. Id. at 737 (White, J. concurring). See also 18 U.S.C. 793 (e). 29 420 U.S. 469 (1975).

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15 teenage rape and murder victim sued Cox Broa dcasting, the owner of a news station, after a reporter broadcast the name of the victim.230 A Georgia statue made it illegal to publish the name of a rape victim; the father of the victim cl aimed that Cox had invaded his privacy under the Georgia statute by broadcasting his da ughters name during a news segment.331 The U.S. Supreme Court ruled that the Georgi a statute directly conflicted with the First Amendment.332 The Court focused on the narrow issu e of whether the state can punish the publication of the name of a rape victim if the name is obtained from public records;333 the Court decided that a state coul d not punish the publication.334 According to the Co urt, the press had the responsibility to report on the ac tions of the government. In th is case, the news station was reporting on a judicial proceeding.335 Under the common law, there could be no invasion of privacy action when the information in que stion was a part of the public record.336 Also, the Georgia statute sanctioned pure expression and not a combination of speech and action.337 In 30 Id. at 474. 31 Id. The Georgia statute made it unlawful for any news media or any other person to print and publish, broadcast, televise or disseminate through any other medium of public dissemination or cause to be printedin this State or though any radio or television broadcast originating in th e State the name or identity of any female who may have been raped or upon whom an assault with intent to commit rape may have been made. GA. CODE ANN. 26-9901 (1972). 32 420 U.S. at 489. 33 Id. at 491. 34 Id. at 496. 35 Id. at 492. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public sc rutiny upon the administration of justice. Id. 36 Id. at 494-495. Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. Id. at 495 37 Id. at 495.

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16 focusing on the specifics of the Cox case, the Court declined to decide the larger question of whether the publication of truthful information can ever be punished.338 The Courts decision in Oklahoma Publishing Co. v. District Court for Oklahoma County339 picked up the path toward the ultimate question. In Oklahoma Publishing reporters attended a detention hearing and learned the name of a boy accused of fatally shooting a railroad switchman. One reporter took a picture of the boy as he was taken from the courthouse.340 Later, at a closed arraignment the judge entered a pretrial order enjoining the publication of the boys name and picture.441 The journalists motion to quash the order was denied.442 The U.S. Supreme Court reversed th is decision and based its rulings on Cox and also Nebraska Press Association v. Stuart ,443 which, according to the Court, reaffirmed the Cox ruling that the press may not be prohibited from t ruthfully publishing information released to the public in official court records.444 The Court cited the fact that the juvenile hearings, whether actually closed by the judge or not, were actuall y attended by the journalists with judges knowledge.445 There was, therefore, no evidence th at the reporters acquired the information unlawfully or without approval.446 38 Id. at 491. 39 430 U.S. 308 (1977). 40 Id at 309. 41 Id. 42 Id. 43 427 U.S. 539 (1976) (holding that a court order prohib iting the publication, by th e press, of certain trial information unconstitutional). 44 Oklahoma Publg 430 U.S. at 310 (quoting Cox 420 U.S. at 496). 45 430 U S. at 311. 46 Id.

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17 The issue of acquiring and publishing informa tion from closed hearings resurfaced a year later in Landmark Communications, Inc. v. Virginia .447 The Commonwealth of Virginia had a law making the proceedings and documents of its Judicial Inquiry and Review Commission confidential.448 Any disclosure of the information from the proceedings was considered a misdemeanor.449 In 1975 the Virginia Pilot a newspaper published by Landmark Communications, published an article identifying a judge involved in a then pe nding Commission investigation.450 The newspaper was indicted and found guilty of viol ating the Virginia statute, incurring a fine of $500 plus costs.551 The U.S. Supreme Court reversed the conviction, finding the statute unconstitutional as applied to Landmark and the press.552 As it had ruled in Cox the Court found that court proceedings and the conduct of judges were matters of public concern.553 Further, the Court questioned the relevance of the clear a nd present danger test and how the Virginia Supreme Court applied the test.554 According to the Court, a pr oper application of the test requires that a court evaluate the magnitude of the danger said to arise from the speech.555 The Court found that because the clear and present danger test was not satisfied in its previous 47 435 U.S. 829 (1978). 48 VA. CONST. ART. 6 10; see also VA. CODE 2.1-37.13 (1973). 49 Id. Any person who shall divulge information in violation of the provisions of this section shall be guilty of a misdemeanor. Id. 50 Landmark 435 U.S. at 831. 51 Landmark Comm. Inc. v. Virginia, 233 S.E.2d 120, 122 (Va. 1977). 52 Landmark, 435 U.S. at 838. 53 Id. at 839. 54 Id. at 842-843. 55 Id. at 843.

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18 cases concerning the power of the court to punish out-of-cour t comments on pending cases. Likewise, the test could not be satisfied under the facts of the Landmark case.556 In Landmark the Court again expressly declined to answer the question of whether the truthful publication of inform ation could ever be punished.557 Instead, the Court decided to answer the narrow question of whether a th ird party could be punished for publishing confidential information concerning pro ceedings of the Judicial Commission.558 Further the Court stated that it was not concerned, in this instance, with the individual who secures the information by illegal means and thereafter divulges it.559 The Court concluded that the speech that the statute sought to s uppress was at the very center of First Amendment protection.560 Smith v. Daily Mail Publishing Co .,661 decided a year after Landmark synthesized Cox Oklahoma Publishing and Landmark and ruled that the cases a ll suggest strongly that if 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.662 Daily Mail involved facts similar to both Landmark and Oklahoma Publishing West Virginia had a statute criminal izing the publication of the name of a juvenile in connection with judicial proceed ings, without a written order from the court.663 56 Id. at 844-845. 57 Id. at 840. 58 Id. at 837. 59 Id. The Court stated that there was not constitutional challeng to Virginias power to keep Commission proceedings confidential or to punish Commission participants for breaching that confidentiality. Id. 60 Id. at 838. 61 443 U.S. 97 (1979). 62 Id. at 103. 63 W.VA. CODE 49-7-3 (1976).

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19 Reporters for The Daily Mail newspaper printed the name of a juvenile murder suspect.664 The Daily Mail obtained the juveniles name by interv iewing witnesses to a junior high school shooting, which the reporters learned of while listening to a police scanner.665 A grand jury indicted The Daily Mail for knowingly violating the state statute.666 In affirming the decision of the West Virginia Suprem e Court, the U.S. Suprem e Court held that the indictment was an unconstitutional prior restraint.667 The Court emphasized that its holding was narrow.668 It defined the issue as whether a st ate had the power to punish the truthful publication of an alleged juvenile delinquent s name lawfully obtained by a newspaper.669 In doing so, the Court again avoided the question of whether the trut hful publication of information could ever be punished.670 The Court, however, did indicate that when the press uses routine reporting techniques it is considered to have lawfully obtained the information.771 Further, the Court found that the press should not have to rely upon the whim of government to obtain information.772 In so doing, the Court can be seen as endorsing enterp rising reporting, which some may take to mean acquiring information in any way possible. 64 Daily Mail 443 U.S. at 99-100. The newspaper printed the name a day after another newspaper and three radio stations published the juveniles name 65 Id. at 99. 66Daily Mail Publg Co.v. Smith, 248 S. E.2d 269, 270 (W.Va. 197 8). The newspaper filed for and received a writ of prohibition from the West Virginia Supreme Court. 67 Daily Mail, 443 U.S at 106. 68 Id. at 105. 69 Id. at 105-106. 70 Id. at 105. There is no issue before us of unlawful press access to confidential judicial proceedings. Id. 71 Id. at 103. 72 Id. at 104.

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20 In Florida Star v. B.J.F .773 the Court began calling the ruling in Daily Mail the Daily Mail principle.774 Whenever the issue of lawful acquisition by a journalist arises and punishment hangs in the balance, the Florida Star Court said there must be an inquiry into the method of how the information was acquired and the effect of any penalties on the media. Specifically, a court deciding a case concerni ng prohibitions on the pub lication of certain information should look at whether the informati on at issue was lawfully obtained, whether the information was already publicly available, and the likelihood of a chilling effect on the media.775 Florida Star, like Cox involved a statutory prohibition on th e printing of the name of a sexual assault victim.776 The Florida Star newspaper printed a police brie f describing a reported sexual assault and using the assault victims name.777 A reporter-trainee obtained the information for the brief by copying a police report made availa ble in the police departments pressroom.778 In reversing BJFs jury award, th e U.S. Supreme Court applied the Daily Mail principle to the facts of the case. The Court found that the name of the rape victim was lawfully obtained and that information was publicly available.779 The newspaper had relied on a news release created by the government; accordi ng to the Court, the reliance on a news release was a routine newspaper reporting techniqu[e].780 Under the facts, enforcemen t of the Florida statute would 73 491 U.S. 524 (1989). 74 Id. at 534. 75 Id. at 534-539. 76 Id. at 526. The Florida statute made it unlawful to print, publish, or broadcast in any instrument of mass communicationthe nameof the victim of any sexual offense. FLA. STAT. 794.03 (1987). 77 Florida Star, 491 U.S. at 527. 78 Id. 79 Id. at 536-539. 80 Id. at 539 (quoting Daily Mail 443 U.S. at 103).

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21 not further a state intere st of the highest order.881 The Court found, however, that the Daily Mail principle did not answer the question of wh ether the government coul d punish the press for unlawfully acquiring information and the publication of that information, and declined to address that question.882 The Court noted that one of the important reservations that it had with allowing the enforcement of the Florida statute was that the statute was facia l[ly] underinclusive[].883 Instead of prohibiting the disclosure by anyone of the name of a victim of sexual assault, the statute limited this prohibition to i nstrument[s] of mass communication.884 As such, an individual disclosing the name of a rape victim would not be punished. The Court concluded that, When a State attempts the extraordinary measure of punishing trut hful publication in the name of privacy, it must demonstrate its commitm ent to advancing this interest by applying its prohibition evenhandedly, to the smalltime di sseminator as well as the media giant.885 The applicability of laws to the media and th e public would arise ag ain two years later in Cohen v. Cowles Media .886 Cohen arose after two newspapers pub lished the name of a political operative, Dan Cohen, in connection with inform ation that he provided to the newspapers, concerning a gubernatorial candidate, in exchange fo r the newspapers promising not to reveal his identity.887 A jury awarded damages to Cohen. The damage award was reversed by the Minnesota Supreme Court, which found that in ba lancing the constituti onal rights of a free 81 491 U.S. at 537. 82 Id. at 535 n.8. 83 Id. at 540. 84 Id. The statute did not define instrument of mass communication. Id. 85 Id. 86 501 U.S. 663 (1991). 87 Id. at 665.

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22 press against the common law interest in protec ting a promise of anonymity, the enforcement of the promise of confidentiality under a theory of promissory estoppel would violate the newspapers rights.888 The U.S. Supreme Court reversed this deci sion and held that the First Amendment did not prohibit Cohen from recovering damages under promissory estoppel.889 In doing so, the Court expressly declined to follow the Daily Mail The Court distinguished Landmark Daily Mail and Florida Star noting that an important criterion in that principle required that the information to be published must be lawfully obtained.890 In this case the majority expressed uncertainty as to whether the newspa pers lawfully obtained Cohens name.991 Instead, the Court found that precedent establis hed that laws of general applicability did not violate the First Amendment if the laws effect on the freedom of the press was only incidental to the laws enforcement controlled the case.992 As such, the Court ruled that these laws were not subject to strict scrutiny, meaning that the laws did not have to serve a compelling state interest in order to be found constitutional.993 The Court concluded that the Minnesota law of promissory estoppel was a law of general applicability.994 Any effect on newsgathering as a result of the enforcement of the law would be incidental and constituti onally insignificant.995 88 Id. at 667 (quoting Cohen v. Cowles Media 457 N.W.2d 199, 205 (1990)) 89 501 U.S. at 665. 90 Id. at 669. 91 Id. at 671. 92 Id. at 669. 93 Id. at 670. 94 Id. 95 Id. at 672 (Blackmun, J. dissenting).

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23 Almost ten years after its Cohen decision, the U.S. Supreme Court again had the opportunity to decide whether the government could punish the press for unlawfully acquiring information and publishing that information, in Bartnicki v. Vopper .996 Federal and Pennsylvania state statutes prohibited the knowing and inte ntional disclosure of illegally intercepted communications.997 A cellular phone conversation between the local teachers union president and the unions chief negotiator was intercepted and recorded.998 The recording was then delivered to the head of the local taxpayers orga nization; and later passed to a radio journalist who played the conversation on his show.999 Bartnicki, the unions chief negotiator, sued for damages under both the federal and state wiretap statutes.9100 The Supreme Court used the Daily Mail/Florida Star line of reasoning in invalidating sections of federal and state wiretap statutes. In ruling in favor of the media defendant, the majority based it s decision on the medias lack of direct involvement in the illegal activity.1101 The court ruled that the content of the recording was a matter of public concern; therefore, the publication of the recording coul d not be prohibited.1102 According to the dissenting opinion by Chief Justice William Rehnquist, the problem with this ruling is its reliance on the Daily Mail/Florida Star cases.1103 The dissent states that the Daily Mail/Florida Star cases were decided based on three factors: 1) the information was 96 532 U.S. 514 (2001). 97 See 18 U.S. C. 2511(1)(a). 98 532 U.S. at 518. The teachers union wa s in negotiations with the school board. Id. 99 Id. at 519. 100 Id. at 520. 101 Id. at 525. 102 Id. 103 Id. at 545 (Rehnquist, C.J., dissenting ).

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24 lawfully obtained from the government, 2) the in formation was already publicly available, 3) the cases concerned the possible chilling effect that the punishment for publication of the information may have. These factors, however, did not answer the question of whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawfu l acquisition, but the ensuing publication as well.1104 These cases, along with the Rehnquist dissent in Bartnicki provide the foundation for the question this dissertation analy zed. While the Court has had the opportunity to preemptively decide whether the government could punish th e unlawful acquisition of information, it has chosen not to. Instead the Cour ts decisions have swep[t] no mo re broadly than the appropriate context of the instant case[s].1105 Further, the Court has not yet defined what constitutes lawful and unlawful acquisi tion, although hinting that the First Amendment may protect the activities of routine newsgathering.1106 Through a review of constitutional and common law precedents, this dissertation extracts those cases that shed light on the protection for information considered unlawfully acquired by the press. Literature Review A search for literature co ncerni ng the questions to be answered in this dissertation found a paucity of articles directly relating to the me dias use of unlawfully acquired information in newsgathering. This topic involves, however, more than just unlawfully acquired information; it also involves First Amendment protection for ne wsgathering, and the application of laws of general applicability to acts committed while ga thering information for a news story. Secondary 104 Id. at 547 (Rehnquist, C.J. dissenting) (quoting Florida Star 491 U.S. at 535, n. 8). 105 Florida Star 491 U.S. at 533. 106 See supra note 65 and accompanying text.

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25 sources were sought in the law review and journal section of the legal databases Westlaw and LEXIS NEXIS. The results from these searches were then examined for important cases identified in each article. Newsgathering and the First Amendment Some authors contend that when journa lists engage in unlawful activity while newsgathering, they automatically lose their First Amendment protection.1107 Other commentators argue for greater First Amendm ent protection for the press engaged in newsgathering activities.1108 Still others offer a balancing test for the award of damages against media organizations that are taken to court for their newsgathering methods.1109 This section provides an overview of the literature concerning First Amendmen t protection for newsgathering activities. In their 1996 article on liability for ille gal newsgathering methods, John Walsh, Steven Selby and Jodie Schaffer argued that the First Am endment should not be a shield from damages 107 See John J. Walsh et al, Media Misbehavior and the Wages of Sin: The Constitutionality of Consequential Damages for Publication of Ill-Gotten Information 4 WM. & MARY BILL RTS. J. 1111 (1996); 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); 108 See Erwin Chemerinsky, Protect the Press: A First Amendment Standard for Safeguarding Aggressive Newsgathering 33 U. RICH. L. REV. 1143 (2000); Stephen M. Stern, Witch Hunt or Protected Speech: Striking a First Amendment Balance Between Newsgathering and General Laws 37 WASHBURN L.J. 115 (1997); Merrit Jones, First Amendment Protection for Newsgathering: Applying the Actual Malice Standard to Recovery of Damages for Intrusion 27 HASTING CONST. L.Q. 539 (2000); Amy Tridgell, Newsgathering and Child Pornography Research: The Case of Lawrence Charles Matthews 33 COLUM. J. L. & SOC. PROBS. 343 (2000); Roy S. Gutterman, Chilled Bananas: Why Newsgathering Demands More First Amendment Protection, 50 SYRACUSE L. REV. 197 (2000); Brandy M. Burnette, Investigatory Newsgathering: Promoting the Public Interest or Invading Privacy Rights? 31 CUMB. L. REV. 769 (2000-2001); James A. Albert, The Liability of the Press for Trespass and Invasion of Privacy in Gathering the NewsA Call for the Recognition of a Newsgathering Tort Privilege 45 N.Y.L. SCH. L. REV. 331 (2002). 109 Andrew B. Sims, Food for the Lions: Excessive Damages for Newsgathering Torts and the Limitations of Current First Amendment Doctrines 78 B.U. L. REV. 507 (1998); Charles C. Scheim, Trash Tort or Trash TV?: Food Lion, Inc. v. ABC, Inc., and Tort Liability of the Media for Newsgathering 72 ST. JOHNS L. REV. 185 (1998); Dynn Nick, Food (Lion) for Thought: Does the Media Deserve Special Protection Against Punitive Damage Awards when it Commits Newsgathering Torts? 45 WAYNE L. REV. 203 (1999); Jacqueline A. Egr, Closing the Back Door on Damages: Extending the Actual Malice Standard to Publication-Related Damages Resulting from Newsgathering Torts, 49 U. KAN. L. REV. 693 (2001).

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26 for newsgatherers who engage in illegal or tortious methods to obtain information.1110 The authors asserted that the First Amendment is not applicable to newsgathering activities occurring before publication.1111 As a basis for their argument, th e authors analogized holding the media accountable for illegal behavior to Fourth Amen dment jurisprudence, and stated that the justification for excluding illegal ly obtained evidence from the st ates case is similar to the reasoning behind refusing to free the media fr om the damaging conse quences of illegal newsgathering activity.1112 If the government seized evidence based on an illegal search, the court will exclude that evidence if the state attempts to use it ag ainst the defendant. This rule was established to deter unlawful activity by the government by prohibiting the government to profit from its illegal activity.1113 Likewise, the media would not be allowed to profit, by being granted a newsgathering privilege, for its illegal activity.1114 The authors further asserted that the medi a should be liable for all damages caused by their illegal behavior during newsgathering.1115 This included instances when the plaintiffs injury resulted not so much from the tortious act but from the publica tion of the information gained from that act.1116 The media could be held to have reasonably foreseen the possible injuries to the plaintiff flowing from both th e newsgathering tort a nd the later publication.1117 110 Walsh et al, supra note 107 at 1112-1113. 111 Id. at 1115. 112 Id. at 1116. The authors do not, however, ad dress the exceptions to this principle. 113 Id. 114 Id. 115 Id. at 1132. 116 Id. at 1132-1143. 117 Id. at 1136.

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27 This reasonable foreseeability satisfied the prox imate cause prong necessary for the recovery of damages.1118 Walsh, Selby and Schaffer further argued th at there should be no consideration for the newsworthiness of the information.1119 Newsworthiness analysis ignores the principle that the media are responsible for committing illegal acts while newsgathering.1120 Newsworthiness analysis would mean that a journalist ma y be excused from his illegal actions.1121 According to the authors, this would en courage more illegal conduct.1122 The authors asserted that the newsworthiness inquiry would mean that the medias liability for damages would depend on whether or not the information acquired was of a public concern.1123 This would encourage fishing expeditions into zones of privacy with hopes of hooking a newsworthy story.1124 Professor Randall Bezanson echoed Walshs se ntiment that the press should be held liable for the consequences of laws of general applicability.1125 Bezanson based his argument, however, on a goal of the First Amendm ent: the independence of the press.1126 According to Bezanson, press freedom meant independence; Fr eedom of the press rests, at its core, on 118 Id. at 1135. 119 Id. at 1137-1140. Whether a published story is within the public interest should not be the determinative factor in permitting or precluding compensatory damages arising from publication of wrongfully obtained material. Id. at 1138. 120 Id. 121 Id. at 1139. 122 Id. 123 Id. 124 Id. 125 Bezanson, supra note 107. 126 Id. at 901.

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28 editorial judgment.1127 Bezanson asserted that this editorial freedom depended on the press being independent from the government.1128 By obtaining immunity fr om prosecution for crimes or torts committed during newsgathering, the pre ss achieved preferred position, different from the regular citizen.1129 The press then must continually prov e itself to be deserving of immunity from prosecution. The press, therefore, becomes beholden to the government, the creator of this immunity.1130 Advocates for greater protection of newsga thering methods assert that commentators such as Bezanson and Walsh take too narrow a view of the scope of First Amendment protection for the press.1131 Professor Erwin Chemerinsky argued th at newsgathering is protected under the First Amendment, creating a presumption against media liability.1132 Because news is gathered for publication, those who publish the news serv e the core purpose of the First Amendment.1133 The information obtained in newsgathering serves both political and social functions.1134 It also fulfills the interest in allowing people to recei ve important information needed for decisionmaking.1135 127 Id. at 904. 128 Id. at 912. 129 Id. at 917. 130 Id. 131 See Chemerinsky, supra note 108 at 1158. 132 Id. I disagree with Professor Bezansons premise and his conclusion. Unlike Professo r Bezanson, I believe that the First Amendments protection for freedom of the press safeguards more than just the ability to print what the press chooses. Id. 133 Id. at 1159. See also Gutterman, supra note 108. 134 Id. Speech can benefit people with information relevant to all aspects of life. Id. 135 Id. at 1160.

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29 But Chemerinsky did not go so far as to grant the press a license to engage in any kind of newsgathering behavior.1136 Instead he offered a solution of using intermediate scrutiny when deciding media liability cases.1137 In this way, the media could only be found liable if the plaintiff is able to prove that the liability is necessary to achieve an important government purpose.1138 According to Chemerinsky, Supreme C ourt precedent would allow the use of intermediate scrutiny to analyze content-neutral laws.1139 Other advocates for heightened protecti on for newsgathering have made various proposals for how courts can protect the media in liability cases. Ideas such as requiring the plaintiff to prove actual malice in intrusion cases, 1140 and allowing a necessity defense for criminal conduct have been asserted.1141 Some, however, have called fo r a privilege that protects all newsgathering activities.1142 Professor James Albert argued that a privil ege for newsgathering should be considered with respect to the traditional pr ivileges allowed in tort law.1143 In tort, certain actions are privileged if they are done in the public interest.1144 This privilege is only bounded by current 136 Id. at 1160-1161. 137 Id. at 1161. 138 Id. 139 Id. at 1161-1162 (basing his theory on Turner Broadcasting System v. Federal Communications Commission 512 U.S. 622 (1994)). Imposing tort liability on the medi a for its newsgathering activities is applying a contentneutral law in a manner that burdens First Amendment conduct. Intermediate scrutiny is thus appropriate. Chemerinsky, supra note 108 at 1162. 140 See Jones, supra note 108; see also Egr supra note 109. 141 See Note, And Forgive Them Their Trespasses: Applying the Defe nse of Necessity to the Criminal Conduct of the Newsgatherer 103 HARV. L. REV. 890 (1990). 142 See Albert, supra note 108, Sims, supra note 109, Nick, supra note 109. 143 Albert, supra note 108 at 354-356. 144 Id. at 356.

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30 ideas on what will most effectively promote the general welfare.1145 The interests served by newsgathering advance the public interest and therefore should be protected by a privilege.1146 Dynn Nick repeated this argument in his law review note and conte nded that publications concerning the public interest are constitutionally protected.1147 Professor Andrew Sims asserted an argumen t similar to Alberts proposed privilege for newsgathering in the public interest. Sims proposed a limitation on the award of damages for newsgathering torts based on principals from the law of libel and the Courts ruling in Florida Star.1148 In the libel case Gertz v. Robert Welch, Inc ., the U.S. Supreme Court held that a private plaintiff in a libel action must prove actual malice, or that the information was published with knowledge of falsity or reckless disregard for the tr uth, if the libel related to a matter of public concern.1149 Sims asserted that the Court in Florida Star similarly protected the press in ruling that the name of the rape victim was of a pub lic concern and therefore the press could not be punished for publishing that information.1150 His concern was that the Florida Star opinion too broadly defined of public concern; the Gertz opinion too narrowly defined of public concern.1151 Sims advocated a midpoint between the definitions, although mo re closely aligned with the Gertz conception of public concern, requiring that the matter re ported be not merely of public concern, but of si gnificant public concern.1152 According to Sims, A broad definition 145 Id. (quoting W. PAGE KEETON, PROSSER AND KEETON ON TORTS 16, at 109 (5th ed. 1984)). 146 Albert, supra note 108 at 356 147 See Nick, supra note 109 at 206. 148 See Sims, supra note 109 at 560. 149 418 U.S. 323, 348-349 (1974). 150 See Sims, s upra note 103 at 560. 151 Id. 152 Id. at 561.

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31 of this requirement would encompass all politica lly relevant information but exclude the merely morbid, prying, and sensational.1153 If the media invaded a zone of privacy by intrusion or other tort, the relevant standard would be of the mo st serious public concer n, which would include serious criminal acts, political corru ption and dangers to public safety.1154 Media defendants that failed to meet the public concern standards woul d not be given immunity from large damage awards.1155 Unlawfully Acquired Information The earliest literature found discussing the use of unlawfully acquired information was published in the 1969 Harvard Law Review as part of the Recent Cases section.1156 The article, which amounted to a case comment, discussed a federal appellate court decision concerned with stolen information.1157 In Dodd v. Pearson, 1158 a Senator sued two j ournalists who received copies of files stolen from his office by his former employees.1159 The journalists later wrote a column using the stolen information.1160 The Senator sued under a theory of invasion of privacy. The court found the journalists liable for damage s to the Senator under the theory of conversion but rejected the Senators invasion of privacy claim.1161 153 Id. 154 Id. 155 Id. at 562. 156 RECENT CASES Constitutional LawFreedom of the PressJudg ment for Conversion Against Journalists Who Acquire and Publish Information with Knowledge that it was Stolen from U.S. Senators Files does not Violate Freedom of the PressDodd v. Pearson 279 F.Supp. 101 (D.D.C. 1968) 82 HARV. L. REV. 921, 926 (1969). 157 RECENT CASES, supra note 156. 158 279 F.Supp. 101 (D.D.C 1968). 159 279 F.Supp. 101, 102, revd in part by Pearson v. Dodd 410 F.2d 701 (D.C. Cir. 1969). 160 Dodd v. Pearson, 279 F.Supp. at 102. 161 Id. at 104-105.

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32 The Harvard Law Review article asserted that the cour t had taken a broad view of the crime of conversion since the traditional doctrin e of conversion requires that a person received and used the actual property of another with kno wledge that it was obtained illegally; in this case, the journalist only received copies of the files.1162 In doing so, the court made the information included in the file s the subject of conve rsion, instead of the files themselves.1163 According to the author, this was done in spite of a lack of precedent for placing value on intangibles.1164 The author further asserted that the Dodd court might have rejected the invasion of privacy claim based on the newsworthiness privilege.1165 The article stated that the decision may actually hurt the newsworthiness privilege. Instead of basing the measure of damages on the value of the converted property, the damages in Dodd were based on injury to the intangibles normally recoverable under invasion of privacy.1166 By not explicitly removing damages based on injury to the owners feelings the court may have left the journalists, and future media defendants, open to liability for large damage aw ards. Such damages would have a chilling effect on the dissemination of informati on in the public interest, there by negating any benefit from the newsworthiness privilege.1167 162 RECENT CASES, supra note 156 at 926-927. 163 Id. at 927. 164 Id. Classically courts have been reluct ant to recognize such intangibles as the requisite proper ty necessary for the maintenance of an action for conversion. Id. 165 Id. at 928. 166 Id. According to the author the damages claim in Dodd rested on injury to his reputation, his personal embarrassment, and his mental anguish. Id. 167 Id.

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33 The author argued that the court was incorre ct in not holding the journalists liable for invasion of privacy.1168 According to the author, under th e common law, the tort of intrusion, which is a major category of the invasion of pr ivacy tort, does not provide for a public interest privilege.1169 Because the journalists received a nd then published the information with knowledge that it was stolen, they would be held liable for intrusion in the same way that the original intruder would.1170 The author contended that such liability may be precluded by the First Amendments guarantee of freedom of the press. The broad interpretation of th e U.S. Supreme Courts rulings in New York Times v. Sullivan1171 and Time, Inc. v. Hill,1172 may support a freedom of the press claim in cases where there is a conflict between public and private interests.1173 The author noted that the Dodd case was distinguishable from Hill in that Hill was based on inaccuracies in the publication, while Dodd was based on the journalists conduct.1174 The author did, however, admit that allowing recovery against the journali sts would conflict with the publics right to be informed. On the other hand, the author state d, allowing no liability for the journalists may encourage more individuals to steal government files.1175 168 Id. 169 Id. at 929. 170 Id. 171 376 U.S. 254 (1964)(finding instances in which the private interests give way to the public interest). 172 385 U.S. 374 (1967)(establishing a public interest privilege in privacy cases). 173 RECENT CASES, supra note 156 at 929 174 Id. at 929-930. 175 Id. at 930. Such a result would undermine the public interest in freeing officials from the fear that their personal papers will be subjected to public scrutiny. Id.

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34 In the 1970s, more individuals unlawfu lly obtained government information. One notable U.S. Supreme Court case th at arose during this decade is New York Times Co. v. United States,1176 also known as the Pentagon Papers case. In the Pentagon Papers case, two newspapers received unlawfully obtained copies of a classified government study and proceeded to publish articles based on the information c ontained within; the gove rnment sued for an injunction to stop the publication of the articles.1177 The Court found in favor of the newspapers and ruled that a prior rest raint on publication of info rmation was unconstitutional.1178 The literature surrounding this case, and fo cusing on the unlawfully obtained information, is limited. One relevant article was published in December of 1971, the same year in which the Court decided the Pentagon Papers In his commentary, Professor Louis Henkin argued that the main question in the Pentagon Papers case was not whether the government could withhold information or punish the publication, but whether publication by the press deserved a different standard.1179 According to Henkin, the Supreme Court decided in the Pentagon Papers case that the press was different.1180 The case did not, however, explain how or why the press was different. Henkin asserted that the Court ruled that when congress has not spoken, Press publication even of government documents cannot be enjoined unless the courts balance in favor of the 176 403 U.S. 713 (1971). 177 Id. at 714. 178 Id. 179 Louis Henkin, The Right to Know and the Duty to Withhold: The Case of the Pentagon Papers 120 U. PA. L. REV. 271, 276 (1971). For a perspective of how the Nixon administration handled this case, and cases dealing with reporters at the same time see Mark Feldstein, The Jailing of a Journalist: Prosecuting the Press for Receiving Stolen Documents 10 COMM. L. & POLY 137 (2005). 180 Henkin, supra note 179 at 277.

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35 government, and the balances are weight ed heavily on the side of freedom.1181 The opinion only stood for the premise that when deciding cases co ncerning the press publi cation of government documents using a balancing test, the government cannot win unless the court finds more weight on the government side; the proble m was that the press side was already weighted heavily.1182 In his 1980 law review note, Bruce E. Met hven suggested a test by which the press interest in publication of the confidential government information could be examined.1183 Instead of the Pentagon Papers Methvens article focused on th e Supreme Courts decision in Landmark .1184 In Landmark the Court ruled that in order for the government to punish publishers of confidential government information, the subs tantive evil must be extremely serious and the degree of imminence extremely high.1185 According to Methven, the problem with this test was that the Court might lower the standard at times where there is great danger but not extreme imminence.1186 To protect the publics First Amendment in terest, Methven argued that statutes that punish the publication of confidential government information should be reviewed under a less stringent standard than that of imminent danger.1187 He suggested that the Court consider a test requiring that if a reasonable pe rson would consider the particul ar information clearly relevant in formulating political opinions the publication would be constitutionally protected unless it 181 Id. 182 Id. 183 See Bruce E. Methven, First Amendment Standards for Subsequent Punishment of Dissemination of Confidential Government Information 68 CAL. L. REV. 83 (1980). 184 For more information on Landmark see supra text accompanying notes 47-60. 185 Id. at 845. 186 Methven, supra note 183 at 98. 187 Id. at 99-100.

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36 created an extreme imminence of extremely serious danger.1188 In this way, the publication of confidential government information relevant to the public interest would ra rely be punishable. The test would not encourage Congress to classify more information as confidential solely to prevent publication.1189 In the 1990s the theme of the articles related to the use of unlawfully acquired information changed from that of government information, to the conduct of the media in acquiring information on private businesses.1190 Giles Cohen discussed why courts may have the power to prevent media nonparties, who have ac quired confidential discovery materials, from publishing the information.1191 He noted that courts have al ready barred media publications of information protected by c opyright and trade secret.1192 According to Cohen, one can analogize the confidential information protect ed by a court order to propert y, and thereby formulate a basis for enforcement of protective or ders against media-nonlitigants.1193 In order to enforce a protec tive order against th e media nonparty, however, a court would have to analyze whether an injunction will reac h the nonlitigant, and (2) whether there are competing interests which would advise against the injunction.1194 According to Cohen, the courts power to issue an injunc tion against the media in this s ituation would depend on whether 188 Id. at 102. 189 Id. at 103. 190 See Giles T. Cohen, Protective Orders, Property Interests and Prio r Restraints: Can the Courts Prevent Media Nonparties from Publishing Court-Protected Discovery Materials?, 144 U. PA. L. REV. 2463 (1996); William E. Lee, The Unusual Suspects: Journalists as Thieves 8 WM. & MARY BILL RTS. J. 53 (1999). 191 See Cohen, supra note 184. 192 Id. at 2482-2488. 193 Id. 194 Id. at 2503.

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37 the media knew about the injunction and how th e media obtained the co nfidential information.1195 In this way the court has to make a determinati on as to whether the media actively procured the information under the protective order.1196 If the court determines that the media actively procured the information, it links the media nonparty to a party to the order, thereby establishing the power of the court to issue an injunction against the media.1197 Professor William Lee examined the link be tween the method of information acquisition and the level of First Amendment protection the publisher of that information is afforded.1198 Lee first explored how the courts ha ve analyzed the method in whic h the media obtained confidential information.1199 Lee provided four reasons why the U.S. Supreme Court ha s not treated the method of newsgathering as relevant to whether it issues an injunction.1200 First, the method of newsgathering does not automatically disc lose the consequences of publication.2201 Second, the court must spend time inquiring into the method of newsgathering, adversely affecting the public interest in timely information.2202 Third, evidentiary issues ma y arise as the Court may find it necessary to delve into the iden tity of journalists sources.2203 Finally, Congress is better able than the courts to make distincti ons between methods of newsgathering.2204 195 Id. 196 Id. at 2504. 197 Id. 198 See Lee, supra note 190. 199 Id. at 60-89. 200 Id. at 70-74. 201 Id at 71. 202 Id. 203 Id. at 72-73. 204 Id. at 73.

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38 In discussing post-publication punishment fo r the media, Lee evoked the Courts ruling Daily Mail which, he asserted, may leave the press ope n to punishment for unlawfully acquiring information and publishing it.2205 In Daily Mail, the Court ruled that if a newspaper lawfully obtains truthful information a bout a matter of public significan ce then state officials may not constitutionally punish pub lication of the information, absent a n eed to further a state interest of the highest order.2206 However, the Court did not define lawful acquisition, as such, what constitutes unlawful acqui sition is questionable.2207 Lee noted that journalists have faced crimin al prosecution and tort lawsuits for receiving confidential information.2208 He argued that case law suppor ts the idea that even when a journalist knew that a so urce was required to keep certain information confidential, asking for that information was not illegal.2209 Lee concluded that the method used in newsgathering should not lessen the First Amendment protection for publication of the information found.2210 Lees article noted lower court cases that come close to answering whether the First Amendment would protect the publication of trut hful information that was unlawfully obtained. In his 2002 Oklahoma Law Review article Matthew Coleman analyzed the Bartnicki decision, which he called the U.S. Supreme Courts boldest steps to date in this area.2211 The Bartinicki Court ruled, under the specific facts of that case, that a publisher who legally obtains information 205 Lee, supra note 190 at 89. 206 Daily Mail 435 U.S. at 103. 207 Lee, supra note 190 at 89. See also Peter Karnajia, Boehner v. McDermott: Trafficking in Illegally Intercepted Information 22 COMM. LAW. 10, 12-13 (2005). 208 Lee, supra note 190 at 90-95. 209 Id. at 96. 210 Id. at 132. 211 Matthew J. Coleman, The Ultimate Question: A Limited Argument for Trafficking in Stolen Speech 55 OKLA. L. REV. 559, 559 (2002).

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39 from an individual who otherwise illegally ob tained the information has First Amendment protection.2212 Coleman did not think, however, that th is protection went far enough. Coleman argued that the Court should extend the privilege to truthful information even if the publisher obtained it illegally.2213 But instead of arguing for a broad ru le, Coleman asserted that the Court should be guided by re cognizing two things: (1) there are competing rights on both side s of the equationthe privacy and speech rights of those whose conversations are mi sappropriated, on the one hand, and the First Amendment rights of the publisher and its audience, on the other handand (2) [our] profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.2214 Coleman asserted the need for the courts to use a harm/benefit paradigm in deciding these cases. This kind of balancing approach would ta ke into account the comp eting interest of the speaker and the privacy of the i ndividual. It would also allow for a more nuanced result in comparison with an approach that only examined whether the information was lawfully acquired.2215 Coleman went further to propose a methodology for how the courts could weigh the potential harm to the speaker against th e rights of the public and the press. In his methodology, Coleman proposed that in assessing the harm to an individual speaker, the court must look at the nature of the speaker, whether he was a public or private figure, and the nature of the sp eech, whether public or private.2216 These factors have an inverse relationship with the harm to the speaker.2217 The two factors would also be used in evaluating 212 Bartnicki 532 U.S. at 528. 213 Coleman, supra note 211 at 560. 214 Id. at 561 (quoting New York Times v. Sullivan 376 U.S. 254, 270 (1964)). 215 Coleman, supra note 211 at 583. 216 Id. at 601-602. 217 Id. at 602-603. As with the public/private nature of th e speaker, there is an inverse correlation between the public nature of the speech at issue and the harm to the speaker, i.e., as a general matter, as the public nature of the

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40 the benefit to the public of publi cation of the information. As th e public nature of the individual and the speech increased, the benefit to the public increased.2218 By considering both the rights of the speaker and the rights of the press, the harm/b enefit analysis encouraged debate on issues of public importance, yet avoids the First Amendm ent implications of chilling private speech.2219 Judicial Analysis and the Freedom of the Press To the extent that commentators argue both for and against special newsgathering consideration for the press, it is necessary to de fine how the courts have traditionally analyzed cases involving the freedom of the press. Several commentators have noted the judicial tests used in evaluating cases involving the First Amendment.2220 These methods of analysis include absolutism, bad tendency and clear and present danger, and balancing. Absolutism Theorists who say that the First Amendment means what it says are called literalists because they take the literal text of th e Constitution to mean exactly what it says.2221 Literalists who treat the First Amendment literally by proclaiming that no law means no law are considered absolutists.2222 For absolutists, every law that in hibited the freedom of expression was unconstitutional.2223 This test has rarely, if ever, found the support of the majority of the Court, intercepted speech increases, the harm to the speaker of having otherwise private communications published likely decreases. Id. 218 Id. at 606-607. 219 Id. at 610. 220 See LARISSA BARNETT LIDSKY & R. GEORGE WRIGHT, FREEDOM OF THE PRESS: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 18-21 (2004); MARC A. FRANKLIN, ET AL, MASS MEDIA LAW 57-81 (2000); JOSEPH J. HEMMER, Jr., THE SUPREME COURT AND THE FIRST AMENDMENT 2-9 (1986). 221 Hemmer, supra note 220 at 8. 222 Id 223 Lidsky, supra note 220 at 18

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41 but its most known advocate was Justice Hugo Black.2224 Justice Black asserted the absolutist viewpoint with respect to the freedom of the press in the Pentagon Papers case.2225 In his concurring opinion in that case, he agreed with the majority that the government did not meet its burden of proof in order to restra in the publication of classified doc uments. In contrast with the majoritys view, he offered historical reasoning as to why the in junction issued in the case was unconstitutional.2226 According to Justice Black, [b]oth the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, inju nctions or prior restraints.2227 Further, the Justice noted that the press served an essential ro le in the American system of democracy.2228 He stressed that the press served the citizens of the democracy and not the government. As such, the power of the government to censor the press was removed.2229 The press was protected so that it could bare the secrets of government and inform the people.2230 Justice Douglas concurring opinion echoed Just ice Black in his abso lutist assertions.2231 Justice Douglas said that the First Amendment left no room for governmental restraint on the press.2232 He also noted that the case was really about th e ability to have inform ed debate on issues of 224. Id. Justice Douglas has also supported this test at times. Hemmer, supra note 220 at 8. 225 New York Times Co. v. United States 403 U.S. 713 (1971) (Black, J. concurring). 226 Id. at 716-717 (Black J., concurring). 227 Id. at 717 (Black, J., concurring). Mad ison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could ne ver be misunderstood: Congress shall make no law. .abridging the freedom. .of the press. Id. at 716-717 (Black, J., concurring). 228 Id. at 717 (Black, J., concurring). 229 Id. 230 Id. 231 Id. at 720 (Douglas, J., concurring). 232 Id.

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42 public importance.2233 Said Justice Douglas, Open debate and discussion of public issues are vital to our national health. On public questions there should be uninhibit ed, robust, and wideopen debate.2234 According to Professor Joseph Hemmer, the absolutist position was designed to enlarge the scope of expression protected by the Constitution.2235 Other tests used to analyze regulations on freedom of expression were thought to pr ovide only conditional protection for expression under the First Amendment.2236 But that did not mean that absolutist construed the First Amendment as protecting everything. Justice Bl ack was careful to delin eate between expression and conduct: I think I have made clear my belief that the Constitution guarantees absolute freedom of speech, and I have not flinched in applying the First Amendment to protect ideas I abhor. I have also continuously voted with in the court to strike down a ll obscenity and libel laws as unconstitutional. In giving absolute protecti on to speech, however, I have always been careful to draw a line between speech and conduct.2237 Bad tendency and clear and present danger The bad tendency test was most famously used in Gitlow v. New York ,2238 in which the U.S. Supreme Court ruled that the government could restrain expression that was inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace.2239 The danger in this test is that it would allow th e punishment of a wide variety of speech even 233 Id. at 724 (Douglas, J., concurring). 234 Id. (quoting New York Times Co. v. Sullivan 376 U.S 254, 269-270). 235 403 U.S. at 724. Hemmer, supra note 220 at 8. 236 Id. 237 HUGO BLACK, A CONSTITUTIONAL FAITH 53 (1968). 238 268 U.S. 652 (1925). 239 Id. at 667. In Gitlow a man was arrested for distri buting socialist pamphlets under a New York law that prohibited advocating the overthrow of the government. Id. at 656-659.

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43 when there was no harm intended. Emerson noted that in using this test to analyze First Amendment cases the Court made a strong presum ption in favor of government regulation of speech.2240 The Court later rejected the bad tendency test in favor of the clear and present danger test.2241 The clear and present danger test was first enunciated in Schenck v. United States .2242 In Schenck a man was convicted under the Espionage Act for distributing flyers to draftees urging them to resist the draft.2243 In affirming the conviction, the court ruled that the First Amendment was not an absolute bar to prosecution for speech.2244 The Court ruled that the question in every case is whether the words used are in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has th e right to prevent.2245 The test was later further delineated cl ear and present danger in Bridges v. California 2246 in which the Court noted the main factors for the using the tes t: a substantial evil, e xtreme serious[ness], and an extremely high degree of imminence.2247 240 THOMAS EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 104 (1970). 241 See Herndon v. Lowry, 301 U.S. 242 (1937) and Bridges v. California, 413 U.S. 252 (1941). 242 249 U.S. 47 (1919). 243 Id. at 48-49. 244 Id. at 52. 245 Id. 246 413 U.S. 252 (1941) (reversing the contempt convictions of a newspaper and a union leader for out of court statements). 247 Id. at 263. Compare Brandenburg v. Ohio, 395 U.S. 444 (1969).

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44 Balancing Balancing tests require a cour t to weigh the governments inte rest against the interest in free expression.2248 Professor Zachariah Chaffee, in hi s book on freedom of speech, wrote that in deciding cases using balancing: We must regard the desires and needs of th e individual human being who wants to speak and those of the great group of human beings among whom he speaks. That is, in the technical language, there are in dividual interests and social interests, which must be balanced against each other, if they conflict, in order to dete rmine which interest shall be sacrificed under the circumstan ces and which shall be protected and become the foundation of a legal right.2249 The courts have more than one way to go about balancing. A court may use ad hoc balancing, in which the court will weigh the specif ic interests involved based on the facts of that specific case.2250 Court decisions based on ad hoc balancing provide little assistance in future cases because the opinions are so fact specific.2251 A court may also use definitional balancing. This kind of analysis requires a court to consider the category of speech or speaker at is sue and balance this against the societal or governmental interest in restricting that speech.2252 An example of this is the U.S. Supreme Courts decision in Chaplinsky v. New Hampshire,2253 in which the Court ruled that there were certain well defined and narrowly limited clas ses of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.2254 These words were of 248 Franklin, supra note 220 at 57. Professor Franklin also notes that balancing is the most frequently used method of analysis. 249 ZACHARIAH CHAFEE, FREE SPEECH IN THE UNITED STATES 31 (1941). 250 Lidsky, supra note 220 at 19; Franklin, supra note 220 at 57. 251 Id. 252 Id. 253 315 U.S. 568 (1942). 254 Id. at 571-572.

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45 such insignificant societal value that the government interest in restricting their ut terance did not need to rise to the levels of substantial, i mportant, compelling, or overriding that are commonly necessary for a government interest in cases involving the First Amendment.2255 The idea of the preferred position should also be noted in reference to balancing and the First Amendment. The idea of the preferred positi on suggests that in cases involving the First Amendment, the expression side is favored.2256 In sum, the literature on the First Amendment and unlawful newsgathering, and the use of unlawfully acquired information by the media, has fo cused mostly on cases current at the time of publication. The major themes in the literatur e on unlawful newsgathering were whether the media should be privileged in newsgathering an d whether the media should be immune from damages related to this unlawful newsgathering. Another main theme to the literature was the courts use of balancing tests in order to decide whether or not unlawful newsgathering activity should receive constitutional protection. This re search did not locate a comprehensive study of all the cases in which the media was prosecuted fo r using illegally obtained information, whether the media was party to the illegal activity or not. This dissertation looks to fill in the gaps in the literature. Statement of Purpose and Research Questions This dissertation explores how the courts have, or will, decide the question of whether or not the media can be punished for truthful yet, unlawfully acquired inform ation. This research investigates the court cases in which the plaintiff, or prosecu tion, has claimed that the media committed some unlawful act in order to acquire information for publication. This study also 255 Id. at 572. 256 Hemmer, supra note 220 at 7.

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46 inquires into the judicial deci sion making process in cases in volving unlawful newsgathering activities. This study is significant because it s eeks to provide a better understanding of what freedom of the press means in relation to the ab ility to gather news. In undertaking this study this researcher will attempt to answer research questions related to this topic. These questions include: 1. Is unlawfulness a bar to First Amendment protection for newsgathering activities? 2. What value have the courts placed on unlawfully acquired information and its use by the press to inform the public? 3. What kind of scrutiny have the courts used to decide cases brought against the media for unlawful newsgathering, and how is the t ype of scrutiny used determinative of the outcome of these cases Methodology The literature on unlawful newsgathering iden tified the common news gathering activities for which the media is sued: (1) [F]raud or misrepresentation, usually center ing on the reporters employment status or affiliation; (2) trespass on the property of the target of the investigation; (3) intrusion into the privacy or seclusion of the targets home, often by means of subterfuge; (4) violation of privacy by hidden camera surveillance; and (5) to rtious interference with contract in order to obtain information from third parties.2257 The literature also identified cases useful for successfully answering the inquiries proposed by this dissertation. These cases were Food Lion v. ABC ,2258 Dietemann v. Time, Inc.,2259 Desnick v. ABC, Inc.,2260 Wilson v. Layne ,2261 and Berger. v. Hanlon .2262 Using legal research methods, the 257 See Sims, supra note 109 at 531-532. 258 887 F. Supp. 811 (M.D. N.C. 1995); 951 F. Supp. 1 217 (M.D. N.C.1996); 984 F. Supp. 923 (M.D. N.C. 1997) affd at 194 F.3d 505 (4th Cir. 1999). 259 449 F.2d 245 (9th Cir. 1971). 260 44 F.3d 1345 (7th Cir. 1994). 261 526 U.S. 603 (1999). 262 188 F.3d 1155 (9th Cir. 1999).

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47 researcher generated a list of cases to analy ze from both the major cases identified and the common newsgathering activities for which the media is sued. To find more cases related to unlawful news gathering the research er operated under the truth that the court system in the United Stat es is a common law syst em. Common law judicial systems adhere to the principle of stare deci sis meaning, a court should follow previously decided cases, or precedents, on the same legal topic.2263 As such, the researcher was able to identify other cases concerni ng unlawful newsgathering by re ading the cases identified and examining the cited cases within those cases as to whether or not the ca ses concerned unlawful newsgathering. The researcher also used the citator service on the legal database LEXIS to search for more cases related to unlawful newsgathering. A c itator is a research tool that lists later sources that have cited earlier sources.2264 The cases were then filtered to identify only those cases involving the media and unlawful newsgatherin g using the words media, journalist, reporter, and newsgathering or news gathering. The researcher also used the term newsgathering in the LEXIS topical search under the topic Constitutional Law, under the Bill of Rights subdivision, the Freedom of Sp eech subsection, and Freedom of the Press subtopic. The researcher searched this subtop ic under the Federal & State CasesSelected Constitutional Law Materials database. To ensure an exhaustive search for cases, the researcher used the terms media, journalist, reporter, and newsgathering or news gathering in combination with the terms misrepresentation, fraud, breach, trespass, intrusion, hidden camera, and hidden microphone, to sear ch the LEXIS database entitled Federal & 263 CHRISTINA L. KUNZ, ET AL., THE PROCESS OF LEGAL RESEARCH 119 (2000). 264 Id. at 145.

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48 State Cases, Combined. Agai n these cases were refined for only those cases involving the media and the common types of unlawful news gathering for which the media was sued. The remaining cases were analyzed for th e answers to the three research questions proposed. To analyze the cases for an answer to research question one, the researcher examined the cases found for whether the courts protec ted the media from liability for unlawful newsgathering under the First Amendment. Specifi cally, the researcher considered whether, and how, the First Amendment was used as a defense to liability, and whether, a nd to what extent the courts have accepted this defense. To answer research question two, the researcher examined the cases for how the courts have characterized th e information gathered unlawfully. Specifically, the researcher examined what kind of language the courts have used to describe this information, and whether the courts have ruled that the info rmation was of value to the public. Finally, to answer research question three, the researcher examined the cases for the method the courts have used to solve theses cases. Specifically the rese archer considered whether some kind of test was used to decide the cases and whether a pattern ha s arisen concerning judicial decision-making in these cases. Chapter Outline Chapter Two discusses the theories relate d to the idea of freedom of the press. Specifically this chapter examines the conception s of freedom of the press and how the courts have used these conceptions to decide cases against the press. Chapter Three examines unlawful newsgather ing as it relates to the invasion of some zone of privacy. The chapter first explores newsgathering ca ses dealing with private, or confidential communications. Specifically, this chapter examines cases in which the method of newsgathering was a hidden camera or recording or in general is claimed to have violated state or federal wiretapping and eavesdropping statutes.

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49 Chapter Four examines cases in which the journalist is claimed to have trespassed, invaded an individuals privacy by intrusion upon seclusion or violated an individuals 4th Amendment right against unreasonable search. Chapter Five considers cases in which it is claimed that journalist have committed some sort of breach of trust that violated state law. Specifically this chapter examines cases in which a journalist is claimed to have committed some sort of breach of duty, fraud, or misrepresentation. Chapter six seeks to answer all of the proposed research que stions by analyzing the cases collected in the previous chapters and concludes this dissertation w ith an analysis of the role of the different theories of the Press clause in the courts decisions. This chapter summarizes the research from the previous chapters and provi des answers to the proposed research questions

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50 CHAPTER 2 THEORETICAL PERSPECTIVE Freedom of expression encompasses the abil ity to communicate idea s through speech and other expression. It is apparent that the ability to express various ideas requires protection. Allowing individuals the freedom to express themselves is thought to benefit society in a number of ways. Professor Thomas Emerson theorized four consequential benefits of freedom of expression: self-fulfillment, attainment of trut h, decision making ability, and societal stability.21 According to Emerson, the ability to formulate beliefs without the permission to express those beliefs hampered individual fulfillment. Restraint of expression was an affront to the dignity of man, a negation of mans essential nature.22 Further, truth could be found by considering all expression on a given subject.23 Other scholars also have form ulated theories to explain the value of free expression.24 A well-known theory of freedom of expressi on is that of the marketplace of ideas. Marketplace theory is traced to John Milton who in 1644 published the Areopagetica which argued for intellectual freedom.25 In Marketplace theory, all idea s were to unrestrained, allowing individuals the opportunity to choose from a variet y of ideas to accept. This included ideas that were true and false. Milton wrote, And though all the winds of doctrin e were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and proh ibiting, to misdoubt her strength. Let her 1 Thomas I. Emerson, Toward a General Theory of the First Amendment 72 YALE L.J. 876, 877-878 (1963). 2 Id. at 879. 3 Id. at 881. 4 See infra text accompanying notes 5-20. 5 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 576 (1978).

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51 and Falsehood grapple; who ever knew Trut h put to the worse, in a free and open encounter?26 According to Milton, ideas that were true would be able to survive attack by those that were false. Also, the individual had the abilit y to discriminate between true and false ideas, but in order to use this ability the individual needed unfettered access to the ideas of others.27 John Stuart Mill, writing over tw o centuries later, was unconvinced that truth would always win, but recognized the value in allowing false speech. [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 genera tions; 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 wh at is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.28 One of the main avenues providing the public with a variety of information from which to cull the truth is the news media. William Ma rnell theorized that the press existed to serve truth.29 This meant that journalists had a duty to s eek the truth and to provide the truth to the other members of society. The rights of the members of society to access truth provided the framework for the function of j ournalists in society. It also created the limitations on what was considered press freedom.210 It is standard rhetoric that the press is ob ligated to print the truth. According to Dale Jacquette, all other journalistic responsibilities derive from this duty to print the truth.211 6 John Milton, Areopagitica, A Speech for the Liberty of Unlicensed Printing, To the Parliament of England 62 (1644). 7 FRED S. SIEBERT, The Libertarian Theory of the Press in FOUR THEORIES OF THE PRESS 39, 44 (Fred S. Siebert, Theodore Peterson, & Wilbur Schramm 1956). 8 JOHN STUART MILL, ON LIBERTY 13 (1859). 9 WILLIAM H. MARNELL, THE RIGHT TO KNOW xii (1973). 10 Id 11 DALE JACQUETTE, JOURNALISTIC ETHICS 3 (2007).

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52 Journalists can only print the truth when they are not hindered in the gathering of this information. This process, in turn can onl y succeed when inquiry is open, public, and unconstrained by individuals or institutions that might have a c ontrary interest in trying to prevent others from learning th e truth about newsworthy events.212 This goal of truth, according to some scholars, is so important that it also overcomes any concerns about what some people call deception in the gathering of news.213 Such theories would allow protection for deceptive newsgathering practices with the aim of bolstering the marketplace of ideas. The marketplace of ideas concept was formally recognized in American jurisprudence in the early 20th century in the dissenting opini on of a World War I era case concerning the Espionage Act of 1918. Abrams v. United States considered whether the enforcement of the Espionage Act violated the freedom of speech a nd press rights of a group of activists who distributed leaflets critical of the U.S. government during World War I. Justice Oliver Wendell Holmes, dissenting from the Court that f ound the law to be constitutional, wrote: Persecution for the expression of opinions seem s to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your pr emises. But when men have realized that time has upset many fighting faiths, they may come to be lieve more than they believe the very foundations of their own conduct that the u ltimate good desired is better reached by free trade in ideasthat the best test of truth is th e power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.214 In so writing, Justice Holmes asserted that there is a substantial interest in protecting speech critical of the government even during wa rtime. The government had to demonstrate that 12 Id at 111. 13 A. DAVID GORDON & JOHN M. KITTROSS, CONTROVERSIES IN MEDIA ETHICS 74 (1999). 14 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

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53 an increased risk of harm would arise from allowing such speech; if the government could not fulfill this burden then the speech had to be protected.215 As such, Justice Holmes wrote, [W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death216 The venerable Judge Learned Hand voiced the sa me sentiment during World War II, albeit not concerning speech critical of the war. In United States v. Associated Press ,217 the Associated Press (AP) wire service had to defend itself against antitrust allegations by the federal government. The AP was a cooperative of newspa pers that collected and exchanged information in exchange for a membership fee and agreeing to follow membership by-laws.218 The AP was challenged for having by-laws that enable it to deny its services to newspapers that were in competition with members of the cooperative.219 In ruling that the AP was acting as a monopoly, Judge Hand asserted that the extent of the AP placed it in possession of information essential to the survival of non-AP members.220 Further, he noted that this case was different from other antitrust cases because it dealt with the news. [T]hat industry serves one of the most vital of all general interest: the dissemination of news from as many different sources and with as many different facets and colors as is possible. That interest is closely akin to, if indeed it is not the same as, the interest protected by the First Amendmen t; it presupposes that right c onclusions are more likely to be gathered out of a multitude of tongues, th an through any kind of au thoritative selection. To many this is, and always will be fo lly; but we have staked upon it our all.221 15 Id. 16 Id. 17 52 F. Supp. 362 (S.D.N.Y. 1943). 18 Id. at 364. 19 Id. 20 Id. at 372. 21 Id.

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54 The Supreme Court demonstrated the signifi cance of Marketplace theory in relation to the press being able to repor t the news. According to the AP decision, the First Amendment protects the dissemination of information by multiple sources. A diversity of sources allows the individual to arrive at the right conclusions. This is language reminiscent of Miltons theory that truth would win over falsity in open combat. It seems then, that Marketplace theory advocates for uninhibited expression, no matter wh at the source. This could mean that the publication of unlawfully obtained information, t oo, is protected under Mark etplace theory. But Milton limited speech allowed into the market place according to whether it would cause harm.222 Free expression theorists also have identifie d the consequences of uninhibited expression, like that imagined by marketplace theorists. Ac cording to Professor Alexander Meiklejohn, free expression assists with informed governance.223 Meiklejohn connected the First Amendment right to freedom of expression to political action and theorize d that the intent behind the Amendment was to prohibit government interferen ce with the power of the people to elect its government.224 This power was embodied in the ability to the people to vote, but voting was more than casting a ballot; it was the expression of intelligence, integrity, sensitivity and a devotion to the general welfare.225 Meiklejohn did, however, extend First Amendment protection to other forms of expression beside s political communication in as much as they 22 Milton, supra note 6 at 16. .and whether it be more th e benefit, or the harm that thence proceeds? Id 23 See Alexander Meiklejohn, The First Amendment is an Absolute 1961 SUP. CT. REV. 245, 255 (1961). 24 Id. at 254. 25 Id. at 255.

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55 related to the acquisition of informati on necessary to make political decisions.226 Meiklejohn did, however, not share Miltons view that truth would always defeat falsity.227 The problem with these theories of free expression clause is that their focus is on the dissemination of information. The freedom of the press necessitates, however, protection for gathering information as well as protection for disse mination. This chapter discusses the theories of free expression related solely to the freedom of the press and the protection for newsgathering within the context of the First Amendment. First, this chapter considers how theorists have interpreted the press clause of the First Amendmen t and its relationship to the freedom of speech. Next, this chapter examines the right to access to information. Fi nally, this chapter discusses the methods of analysis used by the cour ts in deciding First Amendment cases. Or of the Press The widely held theoretical function of the press is th at of the Fourth Estate.228 The term Fourth Estate is attributed to Thomas Carlyle who wrote: Burke said there were Three Estates in Parl iament; but, in the Reporters' Gallery yonder, there sat a Fourth Estate more important far than they all. It is not a figure of speech, or a witty saying; it is a literal fact, --very moment ous to us in these times. Literature is our Parliament too. Printing, which comes necessari ly out of Writing, I say often, is equivalent to Democracy: invent Writing, Democracy is in evitable. Writing brings Printing; brings universal everyday extempore Printing, as we see at present. Whoever can speak, speaking now to the whole nation, becomes a power, a branch of government, with inalienable weight in law-making, in all ac ts of authority. It matters not what rank he has, what revenues or garnitures. The requisi te thing is, that he have a tongue which others will listen to; this and nothing more is requisite. 229 26 Id. at 257. Meiklejohn argued that education, philosoph y and the creative sciences, as well as literature and the arts were protected under the First Amendment because they enabled citizens to make decisions on governance, and sensitized them to issues of the general welfare. Id. 27 Id But see N.Y. Times v. Sullivan, 376 U.S. 254 (1964), in wh ich the majority finds that Erroneous statements are inevitable in free debate. Id at 271. 28 LEONARD W. LEVY, EMERGENCE OF A FREE PRESS 291 (1985). 29 Thomas Carlyle, On heroes and hero-worship, and the heroic in history 92 (1901).

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56 Like the other three estates of power in the British systempossibl y the church, the lords and the commonsthe fourth estate held power to influence society.230 Unlike the other three estates that received power by incidence of birth or appointment, the press got its power in its ability to report to the people the actions of the other estates. In this way, the press could reasonably have been considered as having power ful because it had the ability to report on the activities of the authorities to the general public. As such, the power of the press to report on the activities the authorities was controversial and so they passed laws making it a criminal offense to report the sessions of the legisl ative bodies in England and America.231 During the American Revolution, the freedom of the press was advocated, although not for those suspected of having Loyalist sympathies.232 After the Revolution, many states provided protection for freedom of the press in state constitutions.233 A specific guarantee of freedom of the press was not included in the Constitution when it was adopted in 1887. The Bill of Rights, the first ten amendments to the Constitution, which included an amendment protecting the freedom of speech and the press, was ratified a few years later in 1891. The First Amendment expressly mentions the pre ss in delineating the kinds of expression protected.234 The controversial aspect of the constitutional text as it relates to the exact meaning the Framers gave to the phrase or of the press.235 30 See ALBERT F. POLLARD, THE EVOLUTION OF PARLIAMENT 61-80 (1926) (calling the historical idea of three estates in parliament a myth). 31 Levy, supra note 28, at 14. Levy writes that under parliamen tary privilege each house of the legislature claimed and exercised certain rights. One of these rights was to suppress any unauthorized reporting of the proceedings of that parliamentary session. Id. 32 Id at 173. 33 Id at 183-186. 34 U.S. CONST. amend. I. 35 See infra text accompanying notes 36-85.

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57 This debate about the significance of the pr ess clause in the Firs t Amendment has lasted for decades, and focuses on whether the Framers meant to protect the press as an institution, or generally protect publication of diverse opinions. Protection for the press as an institution would offer journalistic organization more protection for newsgather ing activities than currently recognized by the courts. Viewing the freedom of the press as generally protecting publication does not offer the same level of First Amendmen t protection to newsgath ering as it does to publication.236 Under this concept of the press clause, journalists would have to depend on the courts to establish what activities are protected. This press clause controversy involv es competing theories: functionalism and structuralism.337 Justice Potter Stewart best articulated the structuralist approach in his 1974 address to Yale Law School, wh ich was later published in the Hastings Law Journal Justice Stewart described the press clau se as structural, meaning it protects an institution, thereby granting the press rights that allow it to act as a surrogate or agent for the public in reporting the news.338 As such, the press clause is not simply guaranteeing freedom of expression; the press clause created and protected an additional check on the th ree branches of government.339 If the 36 The First Amendment states in pertinent part, Congress shall make no lawabridging the freedom of speech, or of the press. 37 See LYRISSA BARNETT LIDSKY & R. GEORGE WRIGHT, FREEDOM OF THE PRESS: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION, 8 (2004). See also C. THOMAS DIENES ET AL, NEWSGATHERING AND THE LAW 14 (1999). 38 Potter Stewart, Or of the Press 26 HASTINGS L.J. 631, 633 (1975). The publishing business is, in short, the only organized private business that is given explicit constitutional protection. Id. In this dissertation, the press is defined as the organizations related to mass communication including, newspapers, magazines, radio and television news broadcasters. This definition also includes individuals using the Internet to disseminate news. There is, however, a debate as to who should be considered a member of the press. This is beyond the scope of this study. For further discussion of the changing perspective on who is considered a member of the press with the advent of the Internet see SCOTT GANT, WERE ALL JOURNALISTS NOW (2007). 39 Stewart, supra note 38 at 633.

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58 press clause existed only to protect the freedom of speech, it would exist only as a constitutional redundancy, protecting the same right as that protected under the speech clause.340 Justice Stewart also asserted that although the press is a pr otected institution, the press has no constitutional right to gather information held by the government.341 According to Justice Stewart, [t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.342 In discussing the Pentagon Papers case, however, Justice Stew art noted that the Court could also not find a constitutional basis for prohibiting the publication of information gathered through illegal means. He asserted that so fa r as the Constitution goes, the autonomous press may publish what it knows, and seek to learn what it can.343 Justice Stewart does not make an explicit statement as to what methods journa lists can use to acquire information. This dissertation examines what the courts have ru led were acceptable methods of gathering news. Hence, while there is no right to gather news, according to Justice Stewart, the press should be free to gather news and free to publish its findings. His support for the publication of information obtained through unlawful means is quite extensive, but inconsistent with the views of courts in general. His theo ry permitting the press to seek to learn what it can was echoed by Justice Brennan in the landmark newsgathering access case of Richmond Newspapers, Inc. v. Virginia344 in which the Court held that the First Am endment implicitly guar antees the right of the public to attend criminal trials.345 Justice Brennan wrote a concurring opinion asserting that 40 Id. at 634. 41 Id. at 636. 42 Id. 43 Id. at 635-636. 44 448 U.S. 555 (1980). 45 Id. at 580.

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59 the First Amendment was about more than just protection for the exchange of ideas; the First Amendment played a structural role in securi ng and fostering our republ ican system of selfgovernment.346 The Justice asserted that the structural role of the First Amendment was not only about fostering uninhibited debate, but al so it is about informing this debate.347 According to Justice Brennan, [t]he structural model links the First Amendment to that process of communication necessary for a democracy to surv ive, and thus entails solicitude not only for communication itself, but also for the indispen sable conditions of me aningful communication.348 Justice Brennan did, however, cau tion that First Amendment prot ection should be invoked with discrimination and temperance as there existed few restrictions on action which could not be clothed in ingenious argument in the garb of increased data flow.349 Justice Brennan seemed to be concerned that placing such a high Firs t Amendment protection on newsgathering would allow journalists to engage in any kind of beha vior to gather information for the purpose of publishing it. Similarly, Professor Vincent Blasi insisted that court decisions place a high value on newsgathering and freedom of the press. Blasi na med this value the checking value in that the press can check the misuse of official power.350 In providing an example, Blasi pointed to the reporting on the Watergate scandal that caused President Richard Nixon to resign.351 The reporting on Watergate and other si milar journalistic efforts require d the journalists to investigate 46 Id. at 587. 47 Id. 48 Id. at 588. 49 Id. (quoting Zemel v. Rusk 381 U.S. 1, 16-17 (1965). 50 Vincent Blasi, The Checking Value in First Amendment Theory 1977 AM. B. FOUND. RES. J. 521, 527 (1977). 51 Id

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60 those in authority, and then to expose th eir wrongdoing by publishing their results. The publication of the material informed the public about issues of importance.352 In Blasis article on the checking value, he uses three Supreme Court cases to illustrate how courts have decided news gathering cases, offering his vi ews on the direction the Court should have taken. First he discusses Branzburg v. Hayes ,353 the seminal case in which the U.S. Supreme Court decided that the First Amendment di d not shield reporters from having to testify in front of a grand jury about confidential sources.354 Branzburg was the consolidation of three cases in which reporters used confidential sour ces to report on activity of interest to law enforcement. 355 All of the reporters refused to appear before grand juries when subpoenaed to testify about their sources and what they witnesse d while newsgathering, asserting that the First Amendment provided protection fo r journalists. Alt hough the Court rejected their claim and ruled that the journalists were not shielded from having to testify in front of a grand jury, the Court agreed that there was limited Firs t Amendment protection for newsgathering.356 But according to Blasi, the Court limited the protectio n for newsgathering because it rejected the idea that the press functions as a watchdog; instead the majority focused on the criminal activity of the confidential sources. 357 This stemmed from the Courts characterization of the press as a private institution rather than organization aimed at fulfilling th e role of the Fourth Estate. 52 Id 53 408 U.S. 665 (1972). 54 Id. at 667. 55 The first case involved a reporter for the Louisville Courier-Journal who was able to interview and report on two drug dealers. In the second case a reporter investigated drug use in Frankfort, Kentucky, with the help of drug users. The final case involved a reporter who was able to observe a meeting of the Black Panther Party. 56 Id. at 707. 57 Blasi, supra note 50 at 593.

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61 The two other cases Blasi cited involve acce ss to prisoners in state and federal prison facilities. In Pell v. Procunier358 journalists sued California pr ison officials in response to a regulation prohibiting media interviews with specific prisoners. In Saxbe v. Washington Post359 the newspaper sued federal prison officials in re sponse to a similar regula tion. In both cases the news organizations claimed that the prisons ban on press-prisoner interviews violated their right to freedom of the press under the First Amendment.360 The Court rejected the press claim in both cases and ruled the press had no more right to access information than the general public.361 Blasi noted that in all three of these cases the dissenting op inions alluded to the checking value in First Amendment protection for ne wsgathering. Justice Douglas dissent in Branzburg noted the important function of the press in society.362 The Justice asserted that there is no higher function protected under the Constitution.363 Blasi stated that Justice Stewarts dissent in Branzburg also was important because it stressed the institutional autonomy of the press in regard to being questioned about their newsgathering practices.364 Justice Douglas dissent in Pell365 and Justice Powells dissent in Washington Post366 convey similar messages about the function of the press in society. 58 417 U.S. 817 (1974). 59 417 U.S. 843 (1974). 60 417 U.S. at 819; 417 U.S. at 844-45. 61 417 U.S. at 835; 417 U.S. at 850. 62 Blasi, supra note 50 at 595. Justice Douglas wrote: [E]ff ective self government cannot succeed unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and re-examination [sic]. 408 U.S. at 715. 63 408 U.S. at 722. The function of the press is to explor e and investigate events, inform the people what is going on, and to expose the harmful as well as the good influences at work. Id. 64 Blasi, supra note 50 at 596. 65 See 417 U.S. at 835-842 (Douglas, J. dissenting). 66 See 417 U.S. at 850-875 (Powell, J. dissenting).

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62 The fact that the press role as a check on government was re legated to mostly the dissent in these important newsgathering cases concerned Blasi. He cal led the Courts granting of only limited protection for newsgathering a failure.367 This failure to grant greater First Amendment protection for newsgathering was at tributable to two factors: (1 ) the Court was unsure about the implications of granting full protection to newsgathering, and (2) the Court recognized newsgathering as different than other protected speech activities.368 Blasi agreed that newsgathering was different from other speech activ ities. Because of this, he asserted that the Court should evaluate the interest served by ne wsgathering in terms of the checking value. Investigative reporting, then, w ould serve the public interest by providing a check on the workings of government and providing citizen s with information about those in power.369 Blasi submitted that the key stage in checking on government is in obtaining the information. As such the Court should, while balanci ng the states interest a nd the interests of the journalists, accord greater weight in First Amendment analysis of newsgathering claims than that given to the publicati on of the information given.370 Methods of newsgathering considered unethical might also be evaluated for First Amendment protection. But this does not allow courts to establish a jour nalistic code of ethics.371 Journalists should not be exempt, however, from generally applicable laws.372 This meant that journalists could not break the law that applied to everyone in society just to get a story. 67 Blasi, supra note 50 at 602. 68 Id. 69 Id. at 603. 70 Id. at 610. 71 Id. at 611. 72 Id.

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63 This dissertation examines whether the cour ts have provided a de facto exemption for journalists who have violated gene rally applicable laws to gather information. While noting that investigative reporting served the public interest by providing a check on government, Blasi did not specifically state th at unlawfully acquired information did not also serve the public interest. This dissertation examines the value the courts say that unlawfully obtained information serves for the public. In contrast with the structuralist conception of the First Amendment, functionalism posits that the speech and press clauses both protect expression; speech meaning oral expression and press meaning written or printed expression.373 Chief Justice Warren Burger enunciated the functionalist approach to the press clause in First National Bank of Boston v. Bellotti .374 Burger agreed with the majoritys ruling that a Mass achusetts statute prohibiting corporate speech on political issues was unconstitutional, but wrote a separate concurring opinion that discussed questions about the freedom of the press that arose from the Belloti ruling.375 Chief Justice Burger argued that a narrow st ructuralist reading of the press clause would allow the government to impose restrictions on non-media corpora tions that would not be allowed on media corporations.376 Burger noted two problems with the structuralist theory of the press clause. First, the structuralist approach wa s not historically sound.377 The common view of freedom of the press in 73 Melville B. Nimmer, IntroductionIs Freedom of the Press A Redundancy: What Does it Add To Freedom of Speech 26 HASTING L.J. 639, 640 (1975). 74 435 U.S. 765 (1978) (Burger, C.J. concurring ), rehg denied, 438 U.S. 907 (1978). In Belotti a group of financial institutions challenged the constitutionality of a state law that prohibited certain business organizations from spending money to influence referenda. 435 U.S. at 767. The Court held the statute unconstitutional. Id at 776. 75 435 U.S. at 795-801. 76 Id. at 798. 77 Id.

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64 the 1700s was that of freedom for the publication of ideas, and not just freedom of a certain institution.378 Also, for the most part, freedom of speech was synonymous with freedom of the press.379 This is not, however, to say th at the Press Clause is redundant.380 Burger pointed out that the Speech Clause may be viewed as prot ecting the liberty to e xpress ideas and beliefs,381 whereas the Press Clause may be viewed as liberty to disseminate expression broadly.382 Burgers second problem with the structuralis t interpretation of the Press Clause is the difficulty in formulating a definition of the press.383 According to Burger labeling some entities as the press while excluding others is reminiscent of the licensing scheme that the First Amendment was written to prohibit, allowing th e government to use content, ownership, and frequency as determinative factor s for what constitutes the press.384 Burger also asserted that the freedom of the press embraces every sort of publication which affords a vehicle of information and opinion, and that has an informative function.385 Therefore, the Justice saw no special protection for the institutional press. 78 Id. at 798-799. 79 Id. at 799. 80 Id. Compare with Melville B. Nimmer, IntroductionIs Freedom of the Press A Redundancy: What Does it Add to Freedom of Speech? 26 HASTINGS L.J. 639 (1975). 81 Id. 82 Id. at 800. 83 Id. at 801. 84 Id. 85 Id. (quoting Branzburg v. Hayes 408 U.S. 665, 704-705 (1972)). Burger asserts: The informative function asserted by representative of the organized press is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatist. Almost any author may quite accurately assert that he is contributing to the flow of information into the public. Id.

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65 Access to Information Theorists also recognized the vi tality of obtaining informati on to the sustainability of a democratic society. James Madison wrote: A popular government, without popular informa tion or the means of acquiring it, is but a prologue to a farce or a tragedy; or pe rhaps both. Knowledge will forever govern ignorance. And a people who mean to be thei r own governors, must arm themselves with the power knowledge gives.386 Madison, like Meiklejohn after him, saw the nece ssity in having a citizenship enabled to make informed decisions about their governance. The people had a right to govern themselves. It follows logically then, that the people could be viewed as requiring a conc urrent right to access information, also called the right to know. According to Professo r Laurence Tribe, at times the definition of the right to know may include an individuals right to acqui re desired information or ideas free of government al veto, undue hindrance, or unwarranted exposure.387 Individuals had the right to obtain information without gover nment restraint. Emerson saw this right to know as fitting with freedom of expression: Reduced to its simplest terms the concept incl udes two closely related features: First, the right to read, to liste n, to see, and to otherwise recei ve communications; and second, the right to obtain information as a basis for transmitting ideas or facts to others. Together these constitute the reverse side of the coin fr om the right to communicate. But the coin is one piece, namely the system of freedom of expression.388 According to Emerson, both the right to know an d the right to communication played important roles in the search for truth. The U.S. Supr eme Court demonstrated the connection between these two rights in reco gnizing the right to receive information. In Virginia State Board of 86 Letter from James Madison to W.T. Barry, August 4, 1822, in LETTERS AND OTHER WRITINGS OF JAMES MADISON, FOURTH PRESIDENT OF THE UNITED STATES VOL. 3, 276 (1867). 87 Tribe, supra note 5 at 675-676. 88 Thomas I. Emerson, Legal Foundations of the Right to Know 1976 WASH. U. L. Q. 2 (1976).

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66 Pharmacy v. Virginia Citizens Consumer Council, Inc .,389 the Court found that consumers had the right to receive information in the form of advertised prescription dr ug prices under the First Amendment.390 But this right concerned mostly prohibiting government restraints on publication, and had less to do with the ab ility to gather information. Journalists, as investigators of the workings of government, required constitutional protection to ensure that it was able to facilitate the publics right to know. It would appear from Tribe and Emersons definitions of the right to know that when journalis ts engaged in unlawful newsgathering methods, such a right to receive info rmation would be a shield from lawsuits. But the right to know did not include a concurrent ri ght to access any information without regard for its source.391 The laws protecting private individual s and privately held information did not infringe on the right to know.392 And yet, the U.S. Supreme Court has ruled th at the public and the press have a right to access certain government information. In Richmond Newspapers, Inc., v. Virginia,393 the Court held that implicit in the First Amendment is the right to attend criminal trials.394 The case arose 89 425 U.S. 748 (1976). 90 Id. at 763-765. A group of prescription drug consumers argued that a Virginia statute, that prohibited pharmacist from advertising the prices of pr escription drugs, was unconstitutional. Id. at 749-750. 91 Id. at 676. [T]he right to know is the first amendment [sic] filtered through the prism of Holmes marketplace of ideas; such a right carries the implication that government, while it may not close the market, may move to correct its defects and regulate its incidental consequences. Id. 92 Emerson, supra note 88 at 19. Indeed, a private person is protected against unwilling disclosures by a variety of laws against trespass, theft, frau d, and other crimes and torts. Id 93 448 U.S. 555 (1980). 94 Id. at 580. The Court also ruled that [a]bsent an overriding interest articulated in findings, the trial of a criminal case must be open to the public. Id. at 581. The Court based this holding on the freedoms of speech and the press, and also the right to peaceably assemble. Id. at 577-578.

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67 after the exclusion of the public from the f ourth trial of a man indicted for murder.395 Two members of the media, along with the public, we re expelled from the trial after the defense counsel requested that th e courtroom be closed.396 Criminal trials historically have carried a presumption of openness. In finding this, the Court recognized the value of allowing public tria ls. Public trials were therapeutic to the community.397 [T]he open processes of justice serve an importa nt prophylactic purpose, providing an outlet for community concern, hostility, and emotion.398 Further, open trials satisfy the need to feel that justice was done.399 Open trials also increased citizen respect for law enforcement and the judicial process.3100 The Court also noted the role of the press access to trials played in the promoting the publics right to know.3101 A democratic society re quired that the press in form the public of what goes on during a criminal tria l, according to the Court.3102 Although recognizi ng that the public no longer attended criminal trials in the way it ha d in the past, the Court found that this did not 95 Id. at 559. The man, Stevenson, was indicted for the murder of a hotel manager. He was first tried and convicted by the state Circuit Court; the Virginia Supreme Court reversed that conviction on the grounds of improperly submitted evidence. The second and third trials ended in mistrials. Id. 96 Id. 97 Id. at 570. 98 Id. at 571. Without an awareness that societys responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated and may mani fest themselves in some form of vengeful self-help. Id. 99 Id. 100 Id. at 572. Not only is respect for the law increased an d intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy. Id. (quoting J. WIGMORE, EVIDENCE 1834 at 438). 101 448 U.S at 572-574. 102 Id. at 574 n.9. One of the demands of a democratic so ciety is that the public should know what goes on in courts by being told by the press what happens there, to the end that the pu blic may judge whether our system of criminal justice is fair and right. Id. (quoting Maryland v. Baltimore Radio Show, Inc ., 338 U.S. 912, 920 (1950)).

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68 mitigate the resulting legal education th e public could receive from attending a trial.3103 The Court also noted the special function that the press played in attending these trials: Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the pr int and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public. While media representatives enjoy th e same right of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard. This [c ontributes] to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system. .3104 As such, the government had to supply an overridi ng interest in order to constitutionally close a criminal trial to the public and the press.3105 Two years later, the Court extended the guara ntee of access to criminal trials in ruling that while the interest in protecting minors in se xual assault cases was a compelling interest, that interest did not justify the ma ndatory closure of all sexual assault cases involving a minor victim.3106 In Globe Newspapers v. Superior Court reporters were excluded from a sexual assault trial under a Massachusetts law that mandated the closure of trials involving minor victims.3107 In ruling that mandatory closure of such trials was unconstitutional, the Court found 103 448 U S. at 572. With the press, cinema, and electronic media now supplying the representations or reality of the real life drama once available only in the courtr oom, attendance at court is no longer a widespread pastime. Yet [it] is not unrealistic even in this day to believe that public inclusion affords citizens a form of legal education and hopefully promotes co nfidence in the fair administration of justice. Id. (quoting State v. Schmit 139 N.W. 2d 800, 807 (1966)). 104 Id. at 572-573 (quoting Nebraska Press Assn. v. Stuart 427 U.S. 539, 587 (1976)(Brennan, J., concurring in judgment)) 105 448 U.S. at 581. 106 Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 607-608 (1982). 107 Id. at 598-599. Massachusetts Gen. Laws Ann., ch. 278, 16A (West 1981) stated: At the trial of a complaint or indictment for rape, incest, carnal abuse or other crime involving sex, where a minor under eighteen years of age is the person upon, with or against whom the crime is alleged to have been committed, the presiding justice shall exclude the gene ral public from the court room, admitting only such persons as may have a direct interest in the case. MASS. GEN. L. ANN. ch. 278, 16A (West 1981).

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69 that the statute mandating closure was not narr owly tailored to meet the states compelling interest in protecting minor victims of sexual assault.3108 The Court found that instead of ordering closure, the statute could have required a trial court to make case-by-case determinations of whether closure was necessary.3109 Recalling the historical reasons behind allo wing open criminal trials under the First Amendment, the Court noted that the First Amen dment serve[d] to ensu re that the individual citizen [could] effectively participate in a nd contribute to our republ ic system of selfgovernment.3110 The right of access to trials ensured informed discussion about the workings of government.3111 Further, the ability of the public to attend trials allowed a check on the administration of justice, which was essential to self-government.3112 The Court has also ruled that the same openness requirement s applied to jury selection3113 and preliminary hearings.3114 In all of these access cases the Supreme C ourt did not differentiate the press from the public in ruling on the press abil ity to attend and cover trials. Some commentators believe the press should enjoy a right of access greater than th at of the general public in certain situations.3115 Professor Timothy Dyk suggested that the pre ss would deserve greater access to government 108 457 U.S. at 609. 109 Id. 110 Id. at 604. 111 Id. at 605. 112 Id. at 606. 113 See Press Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984). 114 See Press Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986). 115 See, e.g ., Timothy Dyk, Newsgathering, Press Access, and the First Amendment 44 STAN. L. REV. 927 (1992).

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70 information in three instances: inequitable granti ng of press access, denial of press access, and selective press access.3116 Dyk arrived at his conclusions by differentiating the press from the public. He identified three distinguishing factors. First, the press se rved interests that the public could only remotely serve by having access to restricted areas.3117 For instance, the press presence at the scene of a natural disaster is in the role of a surrogate for the general public.3118 Secondly, the presence of the public may be more disruptive in certain situations than the presence of the press. 3119 At the scene of a car accident, for example, the member s of the public might slow down to gawk at the wreckage, thereby creating a traffic jam, whereas the journalists at th e accident scene would know how to investigate without obs tructing those in charge. Lastl y, the press has the resources, time and personnel to sift through information that the public cannot; it is because of this that the press is sometimes allowed access to re stricted areas and to sensitive trials.3120 But Dyk asserted that newsgathering should not be mischa racterized as expressive activity that allows press access only when the public has a right of acce ss for expressive activity at the particular location and ignores the critical issue of whether special access for newsgathering should be permitted.3121 Instead, Dyk argued that the presum ption of press access existed if the government had allowed press access in the past. Therefore, the government had the burden of 116 Id. at 930. 117 Id. at 935. 118 Id. 119 Id. 120 Id. 121 Id. at 936. It should be noted, however, that other theorists are ag ainst special access for the press. See e.g Anthony Lewis, A Preferred Position For Journalism? 7 HOFSTRA L. REV. 595 (1979).

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71 proving that denying press access served a legitimate public interest.3122 Courts deciding these cases would use the same balancing test that has been used when the press seeks used when the seeks access to places or information, which i nquires whether the deni al is necessitated by a compelling governmental interest, and is na rrowly tailored to serve that interest.3123 For the most part, those theories concerni ng access to information and places consider only the information and places controlled by the government. These theories, in general, do not provide journalists with protec tion for accessing information or places controlled by private persons or organizations. This dissertation will examine how the courts have ruled concerning journalists right to access privately held information. Newsgathering and the Law Free speech and free press theories have provided the press with some protection for gathering truthful information in an unlawful manner. On the other hand, such newsgathering practices have caused journalists to be accused of violating various to rt and statutory laws including, trespass, intrusion, wi retapping, and misrepresentation. In most of these cases, the journalists were not seeking access to govern ment held information, or a governmental proceeding, but access to private individuals a nd privately held information. Amid these allegations of civil wrongs, the courts have cons idered the limits of First Amendment protection for newsgathering activities. According to Jane Kirtley, it is appropr iate and necessary for courts to recognize that the First Amendment does encompass news gathering and therefore requires application of [a] stringent constitutional standard.3124 In a 1999 article, Triggering the 122 Dyk, supra note 115 at 953-954. 123 Id. at 954 (quoting Globe Newspaper Co ., 457 U.S. at 607). 124 Jane Kirtley, Is it a Crime?: An Overview of Recent Legal Actions Stemming from Investigative Reports in THE BIG CHILL: INVESTIGATIVE REPORTING IN THE CURRENT MEDIA ENVIRONMENT 137, 153 (2000). Kirtley would have the courts use the same constitutional standard as used in defamation cases. Id.

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72 First Amendment: Newsgathering Torts and Press Freedom Matthew Bunker, Sigman Splichal, and Sheree Martin (Bunker, et al ) suggest a new framework for how the courts should scrutinize newsgathering cases.3125 Bunker, et al asserted that when journalis ts are sued for violating laws of general applicability while gathering news, some form of First Amendment scrutiny should be applied to the plaintiffs claim.3126 This method of analysis w ould be consistent with both New York Times Co., v. Sullivan ,3127 in which the Supreme Court fashioned the constitutional standard of proof actual malice for public officials in libel cases, Hustler Magazine, Inc. v. Falwell ,3128 in which the Court ruled that plaintiffs could not circumvent the Sullivan standard by claiming a different cause of action. According to Bunker, et al, the proposed approach would be the extension of the Sullivan and Falwell analyses to newsgathering.3129 The key to this approach was that the courts would examine the plaintiffs motive for using a to rt claim against the pr ess in a newsgathering case, If the use seems primarily intended to in hibit or punish protected speech rather than simply to vindicate the interest associated wi th the tort, a First Amendment analysis is appropriate.3130 Such a test would filter out cases that do not require First Amendment scrutiny, while at the same time ensuring that the plaint iff was not attempting to punish journalists for speech that occurred as a re sult of their newsgathering. 125 Mathew Bunker, et al, Triggering the First Amendment: Ne wsgathering Torts and Press Freedom 4 COMM. L. & POLY 273 (1999). 126 Id. at 293. 127 376 U.S. 254 (1964). 128 485 U.S. 46 (1988). 129 Bunker supra note 125 at 293. 130 Id.

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73 If the court identifies the punishment of speech as the plaintiffs motive, then the authors suggested that the court use a test like strict scrutiny, that says the plaintiff must establish a compelling interest in vindicating the common-law newsgathering claim alleged, be it trespass, fraud, interference with cont ract or some other tort.3131 This would place a burden on the plaintiff to demonstrate that the press committed a serious, if not egregious, invasion of some protected right that genuinely deserves prot ection even absent any subsequent publication.3132 The second part of the test would consid er the importance of the information sought while newsgathering. The second step suggest here would adjust for these concerns by requiring a court to inquire into the value of the information s ought from the newsgathering conduct. It would clearly not be fair to journalists to require that the information they actually produce be of great importance; after all, some stories, no matter how promising, do not pan out. A purely consequentialist analysis would t hus inhibit newsgather ing to the extent journalists neglected important potential storie s that might not materialize. Instead, the approach here would be to look at the potenti al value of the information as a reasonable journalist would have e nvisioned it at the beginning of the investigation.3133 The main question would be whether the inform ation sought would have been of great public interest. Therefore, informa tion about food and business practic es, consumer safety, and public health would score highly on th is second part of the test.3134 A high score on this part of the balance would make if even more difficult for the plaintiff, while matters of lesser public concern might make recovery somewhat easier, de pending also, of course on the severity of the tortious conduct.3135 If accepted, the analysis suggested by Bu nker, et al would raise the level of scrutiny used by courts in newsga thering cases by requiring a balanc ing of the plaintiffs interest 131 Id. at 294. 132 Id. 133 Id. at 295-296. 134 Id. at 296. 135 Id.

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74 against those of the public. This dissertation examines whether th e courts have implemented an analysis similar to that proposed by the authors in cases concerning unlawful newsgathering techniques. Conclusion The freedom of expression, though including free dom of the press, has most often been interpreted as the freedom to publish information w ith less protection for the ability to gather that information. Advocates for an interpretation of the press clau se as protecting the actual newsgathering activities of the press assert that the institutional press plays an essential role in American society in gathering and publishing news. The U.S. Supreme Court has acknowledged the role of the press in newsgathering cases concerning access to criminal trials. The Court, however, has considered about th e role of the pre ss in relation to information about the government. This dissertation will examine how the courts have decided newsgathering cases where the press has disregarded general applic able laws when reporting on both public and private institutions. This dissertation will also establish what value, if any, the courts apply to unlawful press behavior and the information gather ed from this behavior. This dissertation will also explore the method of analysis the courts have used to decide cases involving unlawful acquisition.

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75 CHAPTER 3 WIRETAPPING AND EAVESDROPPING On June 10, 1993, ABCs news program PrimeTime Live broadcast an investigative segment that began with reporter Sam Donaldson saying, We begin tonight with the story of a so-called big cutter, Dr. James Desnick In our undercover investigat ion of the big cutter youll meet tonight, we turned up evidence that he may also be a big charger, doing unnecessary cataract surgery for the money.31 The broadcast was the culmination of three months of investigation of the Desnick Eye Centers in Illinois and Wisconsin. To create the story, PrimeTime Live s investigative team had contacted Dr. James H. Desnick, who let a film crew videotape the main eye clinic in Chicago, a llowed access to a cataract removal operation and permitted interviews with various doctors, eye clinic staff and patients.42 Dr. Desnick did not know, however, that ABC had also sent fake patients to the eye clinics armed with hidden cameras, which were able to record the eye examinations they received.43 PrimeTime Live broadcast the hidden camera segments juxtaposed with interviews with former eye clinic patient s, staff, and experts on ophthalmology. After the segment aired, Dr. Desnick sued ABC, claiming that ABCs use of hidden cameras constituted violations of federal electronic surveillance laws, also called wiretapping or eavesdropping laws.44 This chapter examines how the courts have analyzed the press behavior in newsgathering with respect to these wiretapping and eaves dropping related newsgathering claims. Specifically, this chapter considers cases in which the press uses the First Amendment as 1 Desnick v. Am. Broad. Co., Inc., 44 F.3d 1345, 1348 (7th Cir. 1995). 2 Id. 3 Id. 4 Id. at 1351. He also sued ABC under the Illinois state wiretap law.

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76 a defense when accused of recording or disclo sing a conversation or communication without consent. The first section explores how the c ourts have decided wiretap cases brought under the federal wiretap statute, first in cases in which the press is a third-party recipient of intercepted communications and later in cases where it is claimed that the press participated in the wiretapping. Next, this chap ter examines state wiretap and eavesdropping cases against the press. This chapter concludes with a summary of the main them es of these cases against the press. Wiretap at the Federal Level Title III of the Omnibus Crime Control a nd Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C. 2510-2520 (Title III) prohibits the intentional interception and or disclosure of any wire, oral or electronic communication.45 Parties whose conversations or communications were intercepted or disclosed can seek actual or statutory damages of the greater of $100 a day for each day of the violation or $10,000.46 In order to recover damages, in a case where the violator is a party to the communication, the federal wiretapping law requires that the plaintiff prove that the interception or disclosure was made for the purpose of committing a crime or tort.47 Many states have similar laws prohibiting the interception and disclosure of private communications. Press organizations have been accused of viol ating these laws most often in situations involving hidden cameras or microphones. In these investigations the news media have, at times, turned up truthful information regarding illeg al or unethical activities that the press finds 5 See 18 U.S.C.S. 2510-2520 (2007). 6 18 U.S.C.S. 2520(c)(2). The statute computes actual damages as the sum of actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation. Id. at 2520(c)(2)(A). 7 18 U.S.C.S. 2511(2)(d) (2007).

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77 newsworthy and the public finds interesting. Thes e cases include situatio ns in which the press was involved in the interception of the communication, and also wh en the press only received the product of an interception, whether a recording or a transcript. Whether the press was involved in the recording seems to be a factor in whether or not the courts have ruled in the press favor in these cases. This section explores how the cour ts have ruled in cases where the press was and was not a party to the inte rception of a communication. The Press as Third Party Recipien t of Inte rcepted Communications One of the earliest cases involving the press and Title III was the 1973 case of Smith v. The Cincinnati Post & Times-Star 48 which arose from a telephone c onversation that the plaintiff, Rufus Lee Smith, had with Howard Wunker. During this conversation Smith indicated to Wunker that he could fix a divorce case th at was pending in a county family court. Unbeknownst to Smith, Wunker reco rded the conversation, and then gave the recording to the Cincinnati Post newspaper, which published the cont ents to the reco rded conversation. 49 Smith sued both Wunker and the newspaper for damages arising from recording and disclosing the telephone conversation. The trial court dismissed Smiths suit against Wunker for failure to state a claim upon wh ich relief could be granted.410 The district cour t ruled that it was not illegal under the federal wireta p laws for a party to record a conversation to which he or she were a party.411 The district court also ruled that the disclosure by the newspaper was lawful.412 8 475 F.2d 740 (6th Cir. 1973) 9 Id. at 740. 10 See FED. R. CIV. PRO. 12(b)(6), which allows a defendant to a case to file a motion to dismiss in cases in which the other party has not made a valid claim based on the applicable law. See also Jones v. Capital Cities/ABC Inc., 874 F. Supp. 626 (S.D.N.Y. 1995) and Knautz v. Wilson, 28 Media L. Rep. 2588 (M.D. Fla. 2000) for discussion of reasons to grant a media defendants mo tion to dismiss in a Title III action. 11 475 F.2d at 740 (citing Smith v. Wunker 356 F.Supp. 44 (S.D. Ohio 1972)). 12 Smith v. Cincinnati Post 475 F.2d at 740.

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78 On appeal, Smith argued that alt hough the conversation had legally been recorded, the disclosure of that conversation to the news paper and the publication of that information was unlawful. The Sixth Circuit disagreed.413 The appellate court ruled that Smith could not get damages from the newspaper because the recording of the conversation did not violate th e federal law. Further, because it was lawful for a party to a conversation to r ecord the conversation, it was also lawful for that party to later disclose the contents of that conversation.414 If a party to the conversation, like Wunker, discloses what was said during th e conversation, the c ourt concluded, there is no violation of the right of privacy. Wunker did not violate Title III by disclosing what was said in the conversation to the newspaper; hence, the newspaper di d not violate the fede ral wiretap statute.415 The U.S. Court of the Appeals for the Dist rict of Columbia sim ilarly found no violation of Title III when The Detroit News newspaper obtained information from Department of Justice (DOJ).416 In Zerilli v. The Evening News Association Anthony Zerilli and Michael Polizzi filed suit against the U.S. Attorney General, unknow n agents of the DOJ and the publishers of The Detroit News, claiming that during the 1960s the DOJ ha d intercepted private communications, between the plaintiffs and othe rs, by illegally bugging the o ffice of the Home Juice Company in Detroit, Michigan.417 Zerilli and Polizzi also claimed that in 1976, the agents of the DOJ disclosed the contents of the intercepted comm unications to the newspaper, which used the information to publish a series of articles on orga nized crime in Detroit. Zerelli and Polizzi 13 Id. 14 Id. 15 Id. See also Knautz v. Wilson, 28 Media L. Rep. 2588, 2592 (M.D. Fla. 2000) (ruling that because a wiretap was consensual there was not violation of Title III). 16 See Zerilli v. Evening News Assn, 628 F.2d 217 (D.C. Cir. 1980). 17 628 F.2d at 218.

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79 argued that they were entitled to damages under th e federal wiretap statute for the disclosure of the intercepted communications.418 The D.C. Circuit disagreed, finding that the interceptions at issued occurred before the federal law went into effect in 1968. As such, the court noted that the issue was whether 18 U.S.C. 2520 provides a remedy for the post-en actment disclosure of information that was unlawfully obtained through a pre-enactment interception.419 The court concluded it did not.420 Because the interceptions were made before the en actment of the statute, the interceptions could not violate the statute. Further, the disclosures of those intercep tions could not violate the statute because the interceptions did not vi olate the federal statute. Theref ore, the court decided that the plaintiffs failed to state a claim upon which relief could be granted.421 The federal governments disclosure of intercepted communications to the media, and the disclosure of that information, was also at issue in In re The Providence Journal Company .422 This case arose when Raymond J. Patriarca file d a motion for a temporary injunction against The Providence Journal to prevent the newspaper from publis hing any information from logs and memoranda the newspaper received from a Freedom of Information Act (FOIA) request to the FBI.423 The logs and memoranda were compile d by the FBI from the FBIs electronic 18 Id. at 219. The plaintiffs also claimed asserted 4th Amendment claims against bo th the government and the newspaper. Id. 19 Id. 20 Id 21 Id. at 220-222. The court did note, however, that the pl aintiff may have a case for common-law invasion of privacy if all of the elements could be shown. Id. at 221. 22 820 F. 2d 1342 (1st Cir. 1986). But See In re The Providence Journal Co., 820 F.2d 1354 (1st Cir. 1987), cert. denied 444 U.S. 1071 (1980). 23 Id. at 1344.

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80 surveillance, in vi olation of the 4th Amendment,424 of Patriarcas father. The FBI later destroyed the tapes related to the surveillance, but kept the logs and memoranda, releasing the surveillance materials to the Journal and other media outlets only after Patriarcas fathe rs death in 1985. 425 The court granted Patriarcas motion for an injunction against the newspaper. One day later, the newspaper published an article using the information from the logs and memoranda. Patriarca the filed a motion for criminal contempt against the Journal .426 The district court found the newspaper in contempt and fined it $100,000 a nd gave its executive director an 18-month suspended jail sentence. The newspaper appe aled arguing that the injunction was a prior restraint on its First Amendment rights.427 In analyzing the newspapers appeal, the Fi rst Circuit would seemingly have to decide which principle took precedence: the First Ame ndment presumption agai nst prior restraints,428 or the collateral bar rule, which states that parties must comply with a court order even if that order is later ruled unconstitutional.429 Instead of deciding between these two options, the court chose 24 The FBI conducted this surveillance without a warrant in violation of his [Partr iarcas] Fourth Amendment rights. Id. 25 Id. 26 Id. at 1345. 27 Id. 28 The U.S. Supreme Court has ruled unequivocally that prior restraints on the press carry a presumption of unconstitutionality. See Near v. Minnesota, 283 U.S. 267 (1931); Nebraska Press Assoc. v. Stuart, 427 U.S. 539 (1976); New York Times Co. v. United States, 403 U.S. 713 (1971). Prohibiting the publication of a news story or an editorial is the essence of censorship. The power to censor is the power to regulate the marketplace of ideas, to im poverish both the quantity and quality of debate, and to t restrict the free flow of criticism against the government at all levels. It is plain now as it was to the framers of the Constitution and Bill of Right that the po wer of censorship is, in the absence of the strictest constraints, too great to be wielded by any individual or group of individuals. In re The Providence Journal Co., 820 F.2d at 1345. 29 The collateral bar rule holds that one charged with contempt for disobeying an injunction cannot defend on the ground that the injunction was unconstitutional. The theory is that orderly judicial process requires that injunctions be obeyed until found to be invalid MARC A. FRANKLIN, ET AL, MASS MEDIA LAW: CASES AND MATERIALS 47 (2000).

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81 to focus on the narrower issue of whet her the order in question was invalid.430 The newspaper would have an exception to the collateral bar rule if the court ruled that the injunction was invalid. The Journal would then be able to assert that it should not be cited for contempt because the injunction was unconstitutional. Alt hough court orders are presumed valid, the court noted that there were situations in which an order would be excepted from the collateral bar rule.431 The court found that th is was such a situation.432 In reviewing U.S. Supreme Court precedents concerning the use of prior restraints, the court found that the order had not met the burden required for allowing pr ior restraints on the press. The court relied on the S upreme Courts threepart test from Nebraska Press Association v. Stuart433 in which the Supreme Court held that a ga g order against the press during a criminal trial was unconstitutional using three factors to examine whether the gravity of the evil promoted by pretrial publicity deserv ed a prior restraint. The cour t examined (a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectiv ely a restraining order would operate to prevent the threatened danger.434 The Providence Journal court used the Nebraska Press Association test to find the injunction against the newspaper to be invalid. First, Patriarcas motion for an injunction was 30 820 F 2d at 1347. 31 The court noted that two such exceptions to the collateral bar rule: when a court order issued by a court without the proper jurisdiction to make the order, and when the court order is transparently invalid Id. 32 Id. at 1352. 33 427 U.S. 539 (1976). The court also examined the Supreme Courts decision in New York Times Co. v. United States 403 U.S. 713 (1971), in which Justice Stewart, in his concurring opinion, wrote that a prior restraint on the press was inappropriate absent proof that it will surely re sult in direct, immediate, and irreparable damage to our Nation or its people. 403 U.S. at 730 (Stewart, J., concurring). 34 427 U.S. at 562.

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82 based on Title III, among other things.435 The court found that Title III provided no basis for a prior restraint because the law did not provide fo r injunctive relief within its text. Also, the actual electronic surveillance by the FBI took place before the enactment of the statute, and the statute did not apply retroactively.436 Further, the court noted that in order for a court to provide a injunction against the press, the party seeking the inj unction must demonstrate not only that [the] publication will result in damage to a near s acred right, but also that the prior restraint will be effective and that no less ex treme measures are available.437 Patriarcas only interest implicated by the Journal s publication was his right to priv acy, which the court ruled was an insufficient interest for issuing a prior restraint.438 The courts discussion of the value of news is of particular interest to newsgathering and publication. The court found that temporary restraining orders in terrupt the mode of operation for daily newspapers. Because news was ever changing, even a small delay in publication can hurt a newspapers ability to publish a st ory and to have any impact on events.439 Similarly, other media outlets could have obtained the logs and memoranda and published the information because they were not subject to an injunction. Therefore, the Journal s inability to publish, as a result of the injunction, may make some readers lose c onfidence in the newspapers competence.440 The injunction may have also infringe d on the newspapers editorial discretion. 35 In re The Providence Journal 820 F.2d at 1349. Patriarca also based his motion on the FOIA and the 4th Amendment. These were found to not support the prior restraint. Id. 36 Id. at 1350. 37 Id. at 1351. 38 Id. at 1350. The court noted that the U. S. Supreme Court has implied that there are a narrow range of cases in which prior restraint might be appropriate such as when either national security or an individuals right to a fair trial is at stake. An individuals right to protect his privacy from damage by private parties, although meriting great protection, is simply not of the same magnitude. Id. 39 Id. at 1351. 40 Id. at 1352.

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83 The court also noted that even if the paper had decided to appeal the court order, the delay in getting an appeal could cause the in formation to lose its news value.441 Wiretap information available in public records was also at issue, at least in part, in a group of cases involving Carver Peavy, who at one time was a trustee of the Dallas Independent School District (DISD). Peavy f iled at least two lawsuits agai nst news organizations based on the organizations reporting of conve rsations intercepted in violati on of the federal wiretap law. In Peavy v. New Times, Inc.442 Peavy sued the publishers of the Dallas Observer, which published an article containing th e transcripts of a DISD meeti ng at which two DISD trustees read transcripts of recordings that were anonym ously mailed to their offices. The recordings were of conversations that Pea vy had with various persons in wh ich he used racial, gender and sexual orientation epithets and profanity to describe other DISD trus tees and Dallas school community members.443 The newspaper obtained the transcripts of the meeting by making a state open records act request, but never obtained a copy of the recordi ngs, and printed the transcript of the recordings in its entir ety along with an editors note.444 Peavy sued the paper under section 2510 of the federal wiretap act arguing that the newspaper violated the act by publishing the tran script with knowledge that the information contained had been illegally intercepted.445 In the newspapers response it challenged the constitutionality of the statute as applied to it under the facts, claiming if it were found liable under the wiretap statute, the newspaper would be punished for publishing truthful information. 41 Id. 1352-1352. 42 976 F. Supp. 532 (N.D. Tex. 1997). 43 Id. at 534. 44 Id. at 535. 45 Id. at 537.

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84 The district court chose to answer the narro w question of whether Congress may impose sanctions on the accurate publication of transcripts of a telephone conversation obtained from public recordsmore specifica lly, from school board minutes open to public inspection.446 In holding that Congress could not puni sh the publication of public information, the court relied on the three-part Daily Mail principle, which, according to the Supreme Court in Florida Star v. BJF ,447 inquires into (1) whether the information at issue was lawfully acquired, truthful and about a matter of public concern; (2) whether the proposed punishment served a state interest of the highest order; and (3) whether the punishme nt would have a chilling effect on the press.448 The court found that the under the Daily Mail principle it would be unconstitutional to sanction the press under the wi retap statute in this case.449 First, the newspaper lawfully obtained the information from the public record even though the original reco rding may have been illegally intercepted.450 Further, the information contained in the transcript was of particular concern to DISD constituents a nd the Dallas community at large.451 Second, the interest that the 46 Id. at 537-538. 47 491 U.S. 524 (1989) (holding that a newspaper could not be punished for publishing information contained in a police report that was available to the public). 48 976 F. Supp. at 538. (quoting Florida Star 491 U.S. at 536) 49 976 F. Supp. at 540. 50 The next year the District Court fo r the Northern District of Texas granted summary judgment to a television station who received and broadcast excerpts from an ille gally intercepted telephone conversation between member of the Dallas City Council and her brother in which the councilwoman used profanity and derogatory names for minorities. See Mayes v. LIN T.V. of Tex., Inc., 1998 U.S. Dist. LEXIS 15088 (N.D. Tex. 1998). In Mayes the court ruled that the councilwomans Title III claim against the television station failed because she had provided no evidence that the station knew of the illegality of the recording. Id. at *21. The court ruled: To establish liability for use or disclosure, a plainti ff must demonstrate that the defendant knew: 1) the information used or disclosed came from an intercepted communication, an d 2) sufficient facts concerning the circumstances of the in terception such that the defendant could, with presumed knowledge of the law, determine that the interception was prohibited in light of the statute. Id. (quoting Forsyth v. Barr 19 F.3d 1527, 1538 (5th Cir. 1994). 51 976 F.Supp. at 538.

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85 enforcement of the statute would protect in th is case was the privacy of Peavy. The court concluded, however, that in light of Supreme Co urt precedent, Peavys pr ivacy rights were not compelling enough to infringe on the press First Amendment rights.452 Finally, the court noted that th ere indeed would be a high prob ability of self-censorship if the press were punished when for publishing lawf ully obtained truthful information. Such a ruling would also create a burden on the media th at would require them not to rely solely on government held public information.453 Unlike the New Times court, the U.S. Fifth Circuit Court of Appeals rejected the use of the Daily Mail principle when deciding another Peavy wiretap case that arose under different facts. In Peavy v. WFAA-TV, Inc.,454 Peavy sued a television stat ion under Title III claiming the station violated the statute when it broadcast information obtained from illegally intercepted telephone conversations. Th e station broadcast information le arned from the recordings during three news reports on Peavys alleged misconduct concerning DISD insurance.455 Peavys neighbor Charles Harmon, with whom Peavy ha d ongoing conflicts, origin ally intercepted the conversations. Harman used a police scanne r to intercept and r ecord Peavys telephone conversations.456 52 Id. at 539. The court compared Peavys pr ivacy rights to those rights asserted in Smith v. Daily Mail 443 U.S. 97 (1979) (holding that a states interest in protecting the anonymity of a juvenile criminal defendant was not substantial enough to infringe on the freedom of the press), Florida Star (holding that a statute that allowed the punishment of the media for identifying a rape victim did not serve a substantial states interest), and Landmark Communications Inc. v. Virginia 435 U.S. 829 (1978) (holding that the states interest in prohibiting the publication of judicial conduct review committee proceedings was not substantial). 53 976 F. Supp. at 540. 54 221 F. 3d 158 (5th Cir. 2000). 55 Id. at 166. Peavy also sued under state law cl aiming a violation of the Texas wiretap act, TEX. CIV. PRAC. & REM. CODE 123.001 (1996), and civil conspiracy. Id. at 166. 56 Id. at 164.

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86 Harman later contacted WFAA and spoke w ith a producer and late r an investigative reporter about the recorded conversations. Harman disclosed how he had recorded the conversations, and he gave copies of some of the recordings to a reporter.457 The reporter also instructed Harman not to turn off the recorder while intercepting the c onversations. The reporter later met with the producers who agreed the cont ent of the recordings was worth investigating.458 The news station also consulted an attorney who stated that it was lawful for the journalist to acquire the tapes of the telephone conversations.459 The attorney later informed the reporter that this activity was illegal and that he shoul d not accept any more tapes from Harman.460 By this time the station had received 18 tapes contai ning 188 telephone convers ations between Peavy and others.461 The content of the conversations were us ed as part of the research and background to three broadcasts by the news station concerni ng DISD insurance. The station did not use any of the actual conversations during the broadcasts.462 The federal district court held that even though WFAA had violated Title III by disclosing and using the information from the intercepted conversations, Title III was unconstitutional as applied to the television station.463 [R]ely[ing] on limited principles that 57 Id. 58 Id. 59 Title III originally only prohibited the interception and di sclosure of wire and oral communications. The radio portion of a cordless telephone communication transmitted between the cordless handset and the base unit was not covered under the law until Title III was amended in 1994. See H.Rep. No. 827, 103d Cong., 2d Sess., reprinted in 1994 U.S.C.C.A.N. 3489, 3497. This amendment became effective on October 25, 1994, just five weeks before Harman purchased his police scanner and began to record Peavys telephone calls. Peavy v. WFAA-TV, Inc., 37 F. Supp. 495, 506 (N.D. Tex. 1998). 60 Id. at 165. 61 Id. 62 Id. at 166. 63 Peavy v. WFAA-TV, Inc., 37 F. Supp. 2d 495, 513-515 (N.D. Tex. 1998). The district court also granted the stations motion for summary judgment on the Texas wiretap claims for the same reason. Id. at 516.

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87 sweep no more broadly than the appr opriate context of the instant case 464 to analyze whether the application of Title III would violate the First Amendment the court ruled: [t]his fact-intensive analysis is guided by three considerations: (1) whether the media lawfully obtained truthful information about a matter of public significance; (2) whether imposition of liability is necessary to further a state interest of the highest order; and (3) whether punishing the media for publishing truthf ul information would result in timidity and self-censorship.465 Peavy conceded that the intercepted informati on was truthful. The court then had to decide whether the television station ha d lawfully obtained the information and whether the information concerned a matter of public significance. 466 The court found that the station did not seek out Harman to intercept and record Peavys convers ations. Instead, Harman contacted the station with his information; receiving, investigating, and reporting on tips from such sources is a routine news gathering technique.467 The court went on to rule th at it was not the duty of the media to determine whether or not informati on provided by a private source was unlawfully acquired. Such a requirement would place a hea vy burden on the media and impede its interest in timely dissemination of the news.468 The court ruled that any information acquired through legitimate newsgathering techni ques is lawfully obtained.469 The court also found the information contained in the recorded in terceptions involved a matter of public significance.470 The contents of the recordings concerned an insurance scheme that would enrich Peavy; because Peavy was using his elected position to implement this scheme 64 Id. 65 Id. (citing Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979)). 66 37 F. Supp. 2d at 516 67 Id. According to the court, these kind of activities are protected by the First Amendment. Id. 68 Id. at 517. 69 Id. 70 Id.

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88 it was a matter of public concern.471 Further, the court found the privacy interest asserted by Peavy was created by the federal wiretap act and was not constitutional privacy. As such, the district court ruled that the pr ivacy interest asserted was not compelling enough to stand against the press constitutional right to publish.472 Lastly, the court determined that the stations actions were consistent with those of responsible journalistto investigate leads, verify facts, and publish newsworthy information.473 Any other requirements for the station would undoubtedly result in timidity and self-censorship.474 On appeal, the Fifth Circuit rejected the use of strict scrutiny and distinguished the Florida Star/ Daily Mail considerations.475 The court distinguished Florida Star on the basis that Florida Star and Daily Mail concerned content-based statutes, meaning the statutes prohibited a certain kind of speech, whereas in the Peavy case, the statute prohibi ted publication without regard to the subject matter. According to the co urt, the wiretap act prohibits use and disclosure of illegally intercepted communications solely ba sed on the manner in which the information is obtained. 476 In contrast to the federal wiretap statute, the statute in Florida Star only applied to one segment of the media; Title III applied to all media and the public.477 The court also found the three Florida Star / Daily Mail considerations pr otecting truthful information that was lawfully obtained inapplicab le. First, the telephone conversations were not a part of the public record, but were illegally intercepted by private individuals, thereby placing 71 Id. 72 Id. at 517. 73 Id. at 518. 74 Id. 75 221 F. 3d at 189-190. Accord with Natoli v. Sullivan, 606 N.Y.S.2d 504, 506-510 (N.Y.S. 1993). 76 221 F.3d at 189. 77 Id.

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89 the information outside of the Daily Mail principle.478 The lawfulness of the acquisition of the tape was questionable because the station could be seen as having had some participation in the interceptions. The court also found the second Daily Mail consideration inapplicable because the telephone conversations were not public at the time WFAA used and disclosed them.479 Finally, the appeals court found that the Ti tle III did not place such a burden on the press so as to have a chilling effect as the Act[] do[es] not impose an onerous obligation on the media, but prohibited the use and disclosure of illegal interceptions by everyone.480 Title III also contained a scienter requirement that makes the prohibition on use and disclosure applicable only if the person intentionally uses or discloses the info rmation, or knows or has reason to know that the interceptions were illegal.481 As such, the court concluded that intermediate scrutiny was the appropriate level of scrutiny for the federal wiretap act.482 The court used the test for intermediate scrutiny derived from United States v. OBrien ,483 which makes three inquiries: (1) [whether the law] furthers an important or substantial governmental interest; [(2)] if the governmental in terest is unrelated to the suppression of free expression; and [(3)] if the in cidental restriction on alleged First Amendment freedoms is not greater than is essential to th e furtherance of that interest.484 The court found that the wiretap act 78 Id. (quoting Florida Star 491 U.S. at 534). 79 221 F.3d at 189. 80 Id. at 190. 81 Id. Blacks Law Dictionary defines scienter as, A degr ee of knowledge that makes a person legally responsible for the consequences of his or her act or omission. BLACKS LAW DICTIONARY 624 (2001). According the court, Title III places a requirement on all citizens not to use or disclose interceptions know ing or having reason to know [the interceptions] were in violation of the Wiretap Acts. Peavy 221 F.3d at 190. 82 Id. 83 391 U.S. 367 (1968) (holding that the federal statute crim inalizing defacement of draf t cards was constitutional) 84 Id. 377.

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90 satisfied intermediate scrutiny. First, the govern ment interest was in protecting privacy, which the court ruled to be sufficient for this leve l of scrutiny and of a constitutional dimension.485 Secondly, the wiretap statute was directed at how the information was obtained and not at the content of the information, and only applied wh en the scienter requirement is fulfilled.486 Finally, the prohibitions did not place a burden on more speech than is necessary to protect the privacy interests.487 As such, the appellate court reversed th e district courts gran t of summary judgment as it applied strict scrutiny. Instead, the Fifth Circuit f ound Title III constitutional under intermediate scrutiny, and held that the wireta p statute did not violated the First Amendment because, the United States [. .] ha[s] a substant ial interest in maintainin g the confidentiality of private communications; the use and disclosure pr oscriptions are unrelated to the suppression of speech; and the incidental burdens on speech are not impermissibly broad.488 Almost one year later, the U.S. Supreme C ourt seemingly vacated the Fifth Circuit ruling in a case involving the application of Title III to similar facts and circumstances as those in Peavy. In Bartnicki v. Vopper489 the Court held that the First Amendment protected the disclosure by a radio journali st of an illegally intercepted cellular te lephone conversation.490 Bartnicki arose during a time of conf lict between the Pennsylvania State Education Association and the Wyoming Valley School Board.491 In May 1993, the teachers union negotiator contacted 85 221 F.3d at 192. 86 Id. 87 Id. The court also ruled that the statute was not vague or overbroad. Id. at 193. 88 Id. at 191. 89 535 U.S. 514 (2001). 90 Id. at 518. 91 The Pennsylvania State Education Association, a union, was involved in contentious negotiations with the Wyoming Valley School Board. Id.

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91 the president of the union, by cellular telephone, to discuss ongoing negotia tions between the board and the union.492 At one point during the conversati on, the union president said, If theyre not gonna [sic] move for three percent, were gonna [sic] have to go to their, their homesTo blow off their front porches, well have to do some work on some of those guys.493 An unknown party intercepted and recorded th e conversation. A tape recording of the conversation was anonymously delivered to the h ead of the local taxpayers organization, who then sent the tape to a local radio journalist and other media outlets.494 Vopper, a radio journalist played the recording of the conversation during his public affairs talk show.495 Both the union president and chief negotiator sued the radio j ournalist claiming that th e publication of the contents of their cellular tele phone conversation violated both federal and Pennsylvania state wiretap statutes.496 The defense argued that it had nothing to do with the interception of the conversation and that the publication of the conve rsation was protected by the First Amendment because the journalist did not par ticipate in the interception, the jo urnalist lawfully accessed the interception, and the content of the interception was a matter of public concern.497 The U.S. Supreme Court recognized the lack of active participa tion by the press in intercepting and recording the union members conversation as one of three factors that distinguishes the case from other cases brought under Title III.498 The other two factors were that the press lawfully obtained the r ecording of the conversation and that the subject matter of the 92 Id. 93 Id. at 518-519. 94 Id. at 519. 95 Id. The tape was aired after the union and the school board had reached an agreement. Id. 96 Id. at 520. See also 18 PA. CONS. STAT. 5725(a) (2000). 97 535 U.S. at 526. 98 Id. at 525.

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92 conversation was of public importance.499 In fact, because the press played no part in the actual acquisition of the information, th ere is no real discussion of First Amendment protection for newsgathering. The Court did, however, discuss First Amen dment protection for the publication of the information, and held that the publication of the union members conversation was protected under the First Amendment. The Court declined however, to answer the broad question of whether the government may ever punish not on ly the unlawful acqui sition, but the ensuing publication as well.4100 Instead, the Court focused on the much narrower question of whether the government can punish the publisher of inform ation if the publisher lawfully obtained the information from a third-party who obtained the information unlawfully.4101 While acknowledging that there may be s ituations in which the publish er may be punished, the Court reasoned that Bartnicki was not such a case. The Court identified two interests served by th e wiretap statute: rem oving the incentive to intercept private conversations and protecting the privacy of t hose whose conversations have been intercepted. It reasoned, however, that if th e press were to be punished in this case, the governmental interests would not be served:5102 The normal method of deterring unlawful conduc t is to impose an appropriate punishment on the person who engages in it. If the sanctions that presently attach to a violation of 2511(1)(a) do not provide sufficient deterrence, perhaps those sanctions should be made more severe. But it would be quite remark able to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduc t by a non-law-abiding third party. Although there are some rare occas ions in which a law suppressing one partys 99 Id. These are the Florida Star / Daily Mail considerations. 100 Id. at 528. (quoting Florida Star v. B.J.F 491 U.S. 524, 535 n. 8 (1989)). 101 535 U.S. at 528. 102 Id. at 529-531.

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93 speech may be justified by an in terest in deterring criminal conduct by another, this is not such a case.5103 In Bartnicki, the press did not engage in the interception of the conversation. Therefore, the punishment of the press would not deter thirdparties from again inte rcepting and recording conversations.5104 Further, the Court rejected the idea that the unlawful conduct of a third-party should be grounds to prohibit publication by the pr ess, finding no empirical evidence to support the assumption that the prohibition against disclosures reduces the number of illegal interceptions.5105 The Court further reasoned that although pr ivacy was an important government interest, in this case privacy concerns give way when ba lanced against the interest in publishing matters of public importance.5106 In this case the enforcement of the statute would have punished the publication of truthful informati on of public concern: informati on about the negotiations between the school board and the teachers union. The Cour t noted its previous cases in which it ruled that not even defamation or fact errors remove d First Amendment protection in some instances, demonstrating the Courts commitment to protecting open debate.5107 In his dissenting opinion, Chief Justice Re hnquist rejected the majoritys reasoning for holding that the application of Title III in this case violated the First Amendment. Far from protecting free and open debate, Justice Rehnquist saw the ruling as actually causing selfcensorship in private speech: 103 Id. at 529-530. (citation omitted) 104 Id. at 531. [T]here is no basis for assuming that imposing sanctions upon respondents will deter the unidentified scanner from continuing to engage in surreptitious interceptions. Id. 105 Id. at 531. 106 Id. at 534. 107 Id. at 534-535. The Court cited New York Times v. Sullivan, 376 U.S. 254 (1964), in which it ruled that in order to meet constitutional standards, public officials in libel cases had to prove actual malice to recover damages.

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94 The Court holds that all of these statutes violate the First Amendment insofar as the illegally intercepted conversa tion touches upon a matter of public concern an amorphous concept that the Court does not even a ttempt to define. But the Courts decision diminishes, rather than enhances the purposes of the First Amendment: chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day. 5108 The Chief Justice believed the main problem with this ruling was the majoritys reliance on the Daily Mail/Florida Star cases.5109 The Daily Mail/Florida Star cases were decided based upon three factors: 1) the information was lawfully obtained from the government; 2) the information was already publicly available; 3) the cases concerned the possibi lity of press self-censorship in order to avoid punishment fo r publishing of the information.5110 The dissent argued that the Daily Mail cases did not answer the question of whethe r, in cases where information has been acquired unlawfully by a newspaper or by a sour ce, government may ever punish not only the unlawful acquisition, but the ensuing publication as well. Therefore, the Chief Justice held that the Daily Mail principle was inapplicable to the Bartnicki case.5111 Press Participation In The Interception Although the courts have found both for the press when the press has not directly participated in an ille gal interception using the Florida Star/Daily Mail considerations, these are not the determining factors when the press has dir ectly participated in th e unlawful activity. In cases where the media has directly participated in intercepting private co mmunications the courts look to 2511(2)(d) of Title III, which enumer ates exceptions to its prohibitions against interception. Secti on 2511(2)(d) states: 108 Id. at 542 (Rehnquist, C.J., dissenting). 109 Id. at 545 (Rehnquist, C.J., dissenting). 110 Id. at 546-547 (Rehnquist, C.J., dissenting). 111 Id. at 547 (Rehnquist, C.J., dissenting) (quoting Florida Star 491 U.S. at 535, n. 8).

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95 It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or el ectronic communication where su ch person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.5112 This exemption allows a journa list to record a comm unication without the knowledge or consent of the other party, making hidden camera and microphone recording seemingly excluded from Title III. This exemption to Title III does not apply, however, if the party giving consent to the interception does so in order to commit a crime or other injury to another party. In order to circumvent this exception, plaintiffs in civil actions brought under Ti tle III have asserted (1) that the press was not a party to the recorded commu nication, and (2) that th e press recorded the communication with the intent to commit a crime or tort. Not a party to the communication The District Court for th e Distri ct of Northern Illinois determ ined that a recording was not nonconsensual because not everyone agreed to have the conversation recorded.5113 Russell v. ABC arose after the ABC network aired a story on sanitation issues in th e commercial fish industry. A reporter for PrimeTime Live obtained a job at Potash Brothers grocery store in Chicago that sold seafood products. While working there, the reporter wore a hidden camera and microphone, and recorded conversations sh e had with the stores manager, Marilyn Russell.5114 Portions of the conversations were aired during the PrimeTime Live broadcast. 112 18 U.S.C.A. 2511(2)(d)(2007) 113 Russell v. ABC, Inc., 1995 U.S. Dist. LEXIS 7428, *4 (N.D. Ill. 1995) 114 Id. at *1.

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96 Russell sued ABC claiming that the reporters secret filming and recording violated the federal wiretap law.5115 She argued that the party to the communication exception to Title III, which exempts interceptions made by or with the pe rmission of one of the pa rties involved in the intercepted communication, should not apply to ABC in this cas e because the reporters conduct was criminal and tortious. Russell argued that the federal statute pr ohibited nonconsensual recording.5116 The district court disagreed, finding that her logic was flawed. The court stated that it [wa]s circular to suggest that defenda nts violated the Wiretap Act because defendants violated the Wiretap Act.5117 Additionally, the court found th at the language of the statute specifically states that only one of the parties need consent to the recording to make it lawful.5118 As such, the court dismissed Russells claim under the wiretap act.5119 Although, as noted by the Russell court, Title III specifically states that a party to a conversation may lawfully record that conversa tion, there is no language in the statute or statutory history defining who is a party to the communication. At least one federal court decision provided guidance on this issue in anot her case involving the use of hidden cameras and microphones. In Pitts Sales, Inc. v. King World Productions,5120 the owners of a magazine sales company sued King World Produc tions after a story aired on Inside Edition examining the business practices of magazine sales companies. A producer for Inside Edition secured a job with Pitts Sales by misrepresenting personal information on the job application, and while 115 Id. at *2. She also claimed invasion of privacy by false light and intrusion. Id. 116 Id. at *3. 117 Id. at *4 118 Id. 119 Id. at *11. 120 383 F. Supp. 2d. 1354 (S.D. Fla. 2005).

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97 working for the company he recorded the day-to-day activities of the magazine sales staff with a hidden camera and microphone.5121 Portions of the film footage and recordings were used during a news report focusing on the treatment, abuse, and inadequate supervision given to young sales agents. Pitts Sales sued King World claiming that Inside Edition had violated Title III by recording the conversations and meetings the producer had while employed as a magazine sales agent.5122 In its defense, King World argued that the producer was always a party to the communication because he was always in the room while recording, even though he may not have always participated in the conversations.5123 Pitts Sales argued that in order to be protected as a party to the communication the producer had to be a direct participant in the conversations.5124 The court agreed with King Worl d and ruled that a party to a communication, under Title III, is any person present when the co mmunication is uttered. That person does not have to be a direct participant in the conversation.5125 The court reasoned that the Inside Edition producer was close enough to pick up the conversations on the camera and microphone that he carried. His proximity to th e conversations alone made him a party to the communications.5126 121 Id. at 1356. 122 Id. at 1357. The company also claimed the producers viol ated the federal RICO stat ute, fraud, trespass and tortious interference with contractual relations. Id. 123 Id. at 1359. 124 Id. 125 Id. at 1361. 126 Id.

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98 The court also cited Sussman v. ABC ,5127 a case where, as in Pitts Sales reporters secretly recorded conversations in the work place. In th at case, a federal appell ate court ruled that the reporter was always a party to the communicatio n even though she used multiple surveillance devices to record what was going on around her.5128 Although the Sussman court did not specify whether the journalist was al ways present at the time of the recordings, the Pitts Sales court implied that was what the Sussman court meant.5129 The Pitts Sales court also cited Brooks v. ABC ,5130 a federal district court case in which the court ruled that even in a situation where the nonconsenting party did not meaningfully partic ipate in the recorded communication, a person could still be considered a pa rty to the communication. The Brooks court ruled that a requirement of meaningful participation by th e nonconsenting party w ould be burdensome and unsupported by the statute or statutory history: [T]he court can find nothing in Title III or its hi story that requires meaningful participation in the communication by the non-consenting part y for the one-party consent exceptions to have effect. Such a requirement would do mo re harm than good. Courts would be stalled trying to determine how much participation is necessary and there would be serious vagueness problems with such a requirement. 5131 Using the Brooks and Sussman rulings, the Pitts Sales court reasoned that the producers mere presence was enough to qualify for the exce ption to the federal law as a party to the communication. If not, then the court would be st alled determining the extent of the producers participation in any conversations, whether the producer spoke or if th e speaker looked at the 127 185 F.3d 1200 (9th Cir. 1999). 128 Id. at 1202. 129 383 F. Supp. at 1361. 130 737 F. Supp. 431 (N.D. Ohio 1990) affd by 932 F.2d 495 (6th Cir. 1991). 131 737 F. Supp. at 437.

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99 producer to include him in the conversation.5132 As such, the court found that the communications were lawfully recorded by a party to the communication, and granted summary judgment to King World Productions.5133 Bad purpose Even if a court finds that a journalist was a party to a communication, the plaintiff may still assert that the journalist is not exempt from liability unde r the Title III if the journalist recorded the communication with a criminal or tortious purpose. Prior to the statutes amendment in 1986, plaintiffs could bring suit if they could prove that a recording was made for an injurious purpose. That language was at issue in Boddie v. ABC ,5134 a court decision that is noted as the cause of the 1986 amendment to the statute by Congress.5135 In Boddie, a woman sued ABC after the company aired portions of an interview on the program Injustice for All .5136 Although the woman agreed to be interviewed for the program, she declined to appear on camera. Therefore, the in terviewer secretly recorded the interview. The woman sued ABC, claiming that the compa ny had violated the federal wiretap law.5137 The district court dismissed the wiretap claim. On appeal, the Sixth Circuit held that the wiretap claim had been improperly dismissed. The court found that whether ABC acted with an injurious purpos e was a matter for a jury to 132 383 F. Supp. at 1362. 133 Id. 134 881 F.2d 267 (6th Cir. 1989). 135 See S. Rep. No. 541, 99th Cong., 2d Sess. 17 (1986), reprinted in 1986 U.S.C.C.A.N. 3555. 136 881 F.2d at 268. 137 Id. at 268.

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100 determine. Thus, the court remande d the case to the district court.5138 While on remand, Congress amended section 2511(2)(d) of Title III and removed the injurious purpose language.5139 As such, the district court ruled that the 1986 amendment was a clarification of the pre-1986 language of the statute, and that Congress did not mean for the phrase injurious purpose to allow a cause of action for conduct re lative to the gatheri ng and disseminating of news which does not rise to the level of a crime or tort5140 The Sixth Circuit affirmed the district court s judgment, but disagreed with its reasoning. Although agreeing that courts may use subsequent legislation to determine the purpose or intent of a statute, the court ruled th at in this instance Congress did not clarify the meaning of the statute. Instead, the legislativ e history of the amendment made clear that Congress acted to to eliminate the ability to bring suit wher e a journalist commits no tort or crime.5141 The court also ruled that the amendment to the statut e could not be applied retroactively.5142 138 Boddie v. ABC, Inc., 731 F.2d 333, 338 (6th Cir. 1984). Accord with Brown v. ABC, Inc., 704 F.2d 1296 (4th Cir. 1983) and Benford v. ABC, Inc., 502 F. Supp. 1159 (D. Md. 1980). 139 881 F. 2d at 268. 140 Boddie v. ABC, Inc., 694 F. Supp. 1304, 1309 (N.D. Ohio 1988). 141 881 F.2d at 269. The court found that [t]he legislative history never explains how the courts ought to have interpreted the term improper purpose; it says only that the term is overly broad and vague. Further, any inference that the amendment merely clarified the injurious purpose language is negated by the fact that rather than defining or rephrasing the term, the amendment removed it altogether. Finally, Congress rationale for removing the phrase also indicates that it wished to eliminate a basis of liability altogether, not to clarify it. Id. (citing a Senate Report that stated, Many news stories are embarrassing to someone. The present working of section 2511(2)(d) not only provides such a person with a right to bring suit, but it also makes the actions of the journalist a potential criminal offense S.Rep. No. 541, 99th Cong., 2d Sess. 17, repr inted in 1986 U.S.C.C.A.N. 3555, 3571). 142 881 F.2d at 270.

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101 ABC argued in its defense that the injur ious purpose language of the pre-1986 statute was unconstitutionally vague because it did not define what constituted an injurious purpose.5143 The court agreed and analyzed the injurious purpose language using th e void for vagueness doctrine that inquires into whether a person of ordinary intelligence would understand what actions are prohibited.5144 The court found that there was uncertainty as to the limits of injurious purpose.5145 The court noted that a journalists reason for recording a conversation was to disseminate the information obtained.5146 It is this dissemination of information gained from recording a conversation that may prove to be injurious, but whethe r the dissemination of information was injurious was a matter for a jury to decide. The court found that if a journalist could not determine before disseminating th e information whether a jury may deem the information injurious, this might deter the j ournalist from publishing, thereby chilling speech.5147 Because the wiretap statute has a potentially inhibiting effect on the press constitutionally protected reportorial functions, the court conc luded that the vagueness test applie[d] with particular force.5148 Therefore, the pre-1986 language of the federal wiretap statute could not pass the vagueness test because it failed to give adequate notice of its scope, rendering the statute unconstitutional.5149 143 Id. at 270. 144 Id. 145 Id. at 271. 146 Id. at 270. 147 Id. at 271. 148 Id. 149 Id. at 272. See also Lucas v. Fox News Network, LLC, 2000 U.S. Dist. LEXIS 22834 (N.D. Ga. 2000)(ruling that a plaintiffs claim that the news or ganization secretly recorded private conversations to cause insult and injury is not valid as Congress deleted the language that would have allowed recovery for this type of injury under that statute).

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102 Although the statutory histor y of the 1986 amendment to th e statute noted Congress wish to protect journalists from civil liability, courts have noted that the statute does not now provide the media with the pr ivilege to unlawfully wiretap.5150 A plaintiff may recover damages from the journalist if the plain tiff can prove that the journalist act ed with criminal or tortious intent for recording a conversati on. Evidence of criminal or tor tious intent was the crux of several wiretap cases against th e press. Because proving that a journalists purpose is very difficult, many media defendants in wiretap cases make motions for summary judgment claiming that the plaintiff has failed to state a claim upon which relief can be granted.5151 The federal court of appeals in Brooks v. ABC5152 affirmed a district courts grant of a summary judgment to a media defendan t sued for a Title III violation. In Brooks William Brooks agreed to meet with a re porter from ABC to discuss alle gations that a judge was having sex with women in exchange for favorable court rulings.5153 Once Brooks arrived at the hotel where he was supposed to meet the reporter, th e reporter began to rapi dly ask him questions concerning his suspected role as an enforcer for the judge. During the questioning, a crew secretly recorded Brooks answers. Soon after, a camera cr ew emerged and began to videotape the questioning.5154 Portions of the secret recordings and the film from the camera crew were aired on the ABC program 20/20. 150 881 F 2d at 271. 151 See, e.g. Deteresa v. ABC, 121 F.3d 460 (9th Cir. 1997) (finding that summary judgment was appropriate when the plaintiff presented no evidence of a tortious or criminal purpose by the press in recording an interview). 152 932 F.2d 495 (6th Cir. 1991). 153 Id. at 496. 154 Id.

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103 In 1981, Brooks filed suit against ABC claiming that the broadcast libeled him.5155 He then filed a motion to amend his complaint to include a claim that A BC violated the federal wiretap act.5156 ABC filed a motion for summary judgment. The di strict court granted the motion for summary judgment to ABC and denied the motion to amend.5157 The federal appellate court affirmed the district courts de nial of the motion to amend the claim.5158 Brooks argued that summary judgment was inappropriate because ABC had acted with the purpose of violating the repealed Ohio wire tap statute that prohibi ted conduct not permitted under the laws of the United States.5159 The district court concluded that the law of the United States at issue was section 2511 of the wiretap act. Therefore, ABC had not acted tortiously to trigger 2511.5160 The Sixth Circuit agreed and found th at 2511 of the federal wiretap act and the Ohio statute prohibited the same conduct.5161 Therefore, there was no substance to the mans federal wiretap claim, making summary judgment appropriate.5162 In Desnick, the Seventh Circuit also found that th ere was no substance to a doctors claim that ABC had violated Title III when it sent repo rters, with hidden cameras, to his eye clinics posing as patients seeking treatment. On appeal of a grant of dismissal of the Title III claim against ABC for secretly recordi ng at an eye clinic, the federa l appellate court found that ABC 155 Id. at 497. 156 Id. He also claimed that ABC violated the federal civil rights statutes 42 U.S.C. 1981, 1985. Id. 157 Id. 158 Id. at 499. The court did, however, vacate th e summary judgment ruling on the libel claim. Id. 159 Id. 160 Id. at 499-500. 161 It was unnecessary for the court to discuss the possibility that Title III pr eempted the Ohio law because at the time of the appeal, the Ohio statute had been repealed. Id. at 499. 162 Id. 500.

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104 did not send reporters to the cl inic in order to commit a crime or tort, even though the broadcast may later be proven to be tortious.5163 Further, Dr. James Desnick had not furnished evidence that that was ABCs intent. The court found the journalists purpose was to see whether or not the clinic would recommend cataract surgery.5164 The court ruled that if no rights were infringed upon in the process of the inves tigation by the news organization, Dr. Desnick had no possibility for damages even if the news gathering activities were surreptitious, confrontational, unscrupulous, [or] ungentlemanly.5165 In Russell v. ABC ,5166 the Northern District of Illinois, following the Seventh Circuits in Desnick, found that the critical inquiry for a court to make in a wiretap case was, why the communication was intercepted, not how the recording was ultimately used.5167 In Russell, a reporter from ABC obtained a job at a Chicago grocery store and s ecretly recorded conversations she had with the store manager concerning how to sell the stores seafood. Portions of the conversations were later broadcast on PrimeTime Live .5168 The court found that the purpose of the recordings in Russell was to obtain information about sa nitation practices in the commercial fish industry, not to commit a crime or a tort.5169 The Federal District Court of Arizona used th is same kind of critical question analysis to grant summary judgment to ABC in Medical Laboratory Management Consultants v. ABC .5170 163 44 F.3d 1345, 1353. For facts of case see supra text accompanying notes 1-4. 164 Id. 165 Id. at 1355. 166 1995 U.S. Dist. LEXIS 7528 (N.D. Ill. 1995). 167 Id. at *10. 168 Id. at *1. 169 Id. at *10. 170 30 F. Supp. 2d 1182 (Dist. Ariz. 1998).

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105 In this case, the owners of a medical laboratory, the Devarajs, sued ABC, claiming the company had violated the fede ral wiretap statute.5171 A reporter from ABC was ab le to tour the Devarajs laboratory after the reporter calle d them and told them that she was a cytotechnologist interested in starting her own laboratory.5172 During the tour, a hidden ca mera specialist posing as a computer expert recorded footage of the activ e lab with a hidden camera, while accompanying the reporter. The footage was later broadcast in a report about inaccurate results in pap smear tests.5173 The Devarajs argued that ABC recorded the tour for purpose of committing intrusion, fraud, trespass and tortious in terference with contractual re lations. When ABC moved for summary judgment,5174 the court found that the Devarajs provided no evidence of ABCs purpose. As in Russell and Desnick the Med. Lab. court ruled that the critical question was not whether they are ultimately liable for conduct found to be tortious, but wh ether, at the time the recording took place, they recorded the convers ation with the express intent of committing a tort.5175 The court found that the distinction in th is inquiry was significa nt because the media could be held liable for any surreptitious reco rding even when the purpose was newsgathering.5176 171 Id. at 1204. The Devarajs also claimed public disclosure of private facts, intentional infliction of emotional distress, unfair practices, trade libel, negligent inflicti on of emotional distress, conspiracy, intrusion, fraud, interference with contractual relations, trespass and punitive damages. Id. at 1186. 172 Id. at 1185. 173 Id. 174 Id. at 1204-1205. 175 Id. at 1205. 176 Id. See also Vazquez-Santos v. El Mundo Broad. Corp., 283 F. Supp. 2d 561 (Dist. P.R. 2003).

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106 Because the Devarajs had presented no evid ence that ABC had any other purpose besides gaining information for its broadcast, the court ruled summary judgment was appropriate.5177 Protecting newsgathering from an overly burdensome interpretation of Title III was also at issue for the Ninth Circuit in Sussman v. ABC .5178 In Sussman a reporter for ABC posed as a telephone psychic to gain employment at Psychic Marketing Group. Once employed, the reporter secretly recorded the ac tivities around her; the footage of these recordings later aired on PrimeTime Live .5179 Other employees of the marketing group sued ABC claiming that the reporter violated the federal wiretap act.5180 The federal district court ru led that ABCs conduct was not criminal or tortious because the surreptitious recording was done to gather news.5181 On appeal, the Ninth Circuit clarified the district courts ruling. According to the fede ral appellate court, Congress did not mean to exempt all journalists from liability under the statute.5182 The Ninth Circuit found that the district court must have meant that there was a lawful purpose for the journalists taping: newsgathering. But the existence of a lawful purpose for the reco rding did not preclude a journalist from having an unlawful purpose; nor did the lawful purpose of a taping delete any unlawful purpose for the intended use of the taping.5183 177 30 F. Supp. 2d at 1206. 178 186 F.3d 1200 (9th Cir. 1999). 179 Id. at 1201. 180 Id. 181 Id. at 1202. The district court stated W here a journalist is a party to a conversation, the recording of such a conversation for newsgathering purposes is not criminal or tortious concuct withing the meaning of the statute. Id. 182 Id. The court gives the example of a news gathering or ganization secretly videotap[ing] bedroom activities. Even though there may be some legitimate news gathering purpose (e.g., listening for pillow talk about some newsworthy event), public airing of such a tape may be illegal or tortious under state law. Id. 183 Id.

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107 The court found that there was no California state law that made it illegal to air the tapes made by the reporter while employed at the marketing group. In fact, a recent California state court ruling made newsworthiness a complete ba r to claims brought for invasion of privacy by publication of private facts.5184 The court noted that in the pr esent case the plaintiffs had not claimed that the story was not newsworthy.5185 Further, the focus of the courts inquiry was not upon whether the interception itself violated anot her law; it [wa]s upon whether the purpose for the interceptionits intended usewas criminal or tortious.5186 Although ABCs taping may have violated state invasion of privacy laws, the court found there was no evidence that ABC had an illegal or tortious purpose for its taping.5187 Although most courts agree that the critical question in wire tap cases is not whether the recording itself violated the law, at least one court has ruled that if the interception itself is not unlawful, then the use or the disclosure cannot be unlawful.5188 In Vazquez-Santos v. El Mundo Broadcasting, a radio reporter received notice that Bernardo VazquezSantos, the legal counsel to the Governor of Puerto Rico, was using his se cretaries to send out invi tations to a political party fundraiser.5189 The reporter called Vazquez-Santos at his office and questioned him about 184 Id. (noting the California Court of Appeals ruling in Marich v. QZR Media, Inc ., 73 Cal. App. 4th 299 (Cal. Ct. App. 1999). 185 186 F.3d at 1202 186 Id. (quoting Payne v. Norwest Corp ., 911 F. Supp. 1299, 1304 (D. Mont. 1995), affd in part and revd in part, 113 F.3d 1079 (9th Cir. 1997). 187 186 F.3d at 1203. Where the purpose is not illegal or tortious, but the means are, the victims must See k redress elsewhere. Id. at 1202-1203. But cf. W.C.H. of Waverly, Mo., Inc. v. Me redith Corp., 1986 U.S. Dist. LEXIS 18125 (W.D. Mo. 1986)(holding that summary judgment wa s inappropriate for a media defendant on a Title III claim because the plaintiff had alleged facts and tort claims in its amended complaint that, if proved, may also establish a tortious or injurious purpose. Id. at *8). 188 See Vazquez-Santos 283 F. Supp. 2d at 566 (citing Betancourt v. Nyppy, Inc ., 137 F. Supp. 2d 27, 31-32 (D.P.R. 2003). 189 283 F. Supp. 2d at 562-563.

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108 the use of taxpayer money for political advertisi ng, recorded their conversation, and later played the recording on his radio show.5190 Vazquez-Santos sued, claimi ng the reporter had violated the federal wiretap statute. El Mundo moved for summary judgment.5191 The court ruled that in orde r to prevail on his federal wire tap claim, Vazquez-Santos had to establish a criminal or to rtious purpose for the recording.5192 The court found that even if El Mundo was found liable for violations of the laws of Puerto Rico, the question was whether at the time of the recording, the reporter made the recording with tortious intent.5193 Because Vazquez-Santos could not prove th at the recording was made with a tortious or criminal intent, the district court granted su mmary judgment to El Mundo. One federal court has ruled that although T itle III prohibits certain conduct, it does not allow a prior restraint of the press in their exer cise of first amendment [sic] rights even it the presss conduct clearly violates Title III.5194 In re King Word Productions, Inc arose after Dr. Stuart Berger petitioned for, and was granted, an injunction prohibiting Inside Edition from broadcasting footage that its pr oducer had filmed surreptitious ly while in Bergers office claiming to be a patient. The producer was actu ally investigating Berger for malpractice and unethical behavior.5195 Berger filed for the injunction in a federal district court, alleging that Inside Edition had violated Title III, a nd that he would be irreparably harmed if the footage 190 Id. at 563. 191 Id. at 562. 192 Id. at 567. 193 Id. at 568. (citing Desnick 44 F.3d at 1353). 194 In re King World Prod ., 898 F.2d 56, 59 (6th Cir. 1990). 195 Id. at 57-58.

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109 were broadcast.5196 The district court granted a temporar y restraining order against broadcasting the footage, and rejected Inside Editions First Amendment arguments. Inside Edition sought a writ of mandamus, an order commanding the district court to perform its duties correctly, from a federal appellate court, arguing that the restraining order was a prior restraint on their First Amendment rights.5197 According to the Sixth Circuit, the party seeking a writ of mandamus must demonstrate a clear abuse of discretion or conduct by the district court, and a lack of adequate alternative means to obtain the relief they seek.5198 The court also enumerated five criteria, which formulated the standard for a mandamus petition: 1) The party seeking the writ has no other adequa te means, such as direct appeal, to attain the relief desired. 2) The petitioner will be damaged or prejudi ced in a way not correctable on appeal. (This guideline is closel y related to the first). 3) The district courts order is clea rly erroneous as a matter of law. 4) The district courts order is an oft-repeated erro r, or manifests a persistent disregard of the federal rules. 5) The district courts order rais es new and important problems, or issues of law of the first impression.5199 The Sixth Circuit ruled that Inside Edition could not challenge th e restraining order on direct appeal because a temporary rest raining order could not be appealed.5200 Further, the court ruled [a]s to the second factor, because the pur pose of the first amendment [sic] press freedom 196 Id. at 58. 197 Id. 198 Id. 199 Id. at 58-59. 200 Id. at 59.

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110 clause is to allow the dissemination of info rmation, good or bad, right or wrong, even minimal interference with the first amendment fr eedoms causes an irreparable injury.5201 In granting Bergers petition for an in junction the district court relied on Stockler v. Garratt,6202 in which the Sixth Circuit ruled that liability under Title III applied even if the information gathered by wiretap was never used for a criminal or tortious purpose. According to the Sixth Circuit, the district court used Stockler to conclude that violation of Title III trumped the First Amendment right to air th e footage. The court stated, T he First Amendment is just not interested in protecting the news media from calculated misdeeds.6203 There was, however, nothing in the Stockler decision or Title III that allowed an abridgment of the rights of the First Amendment. The court found that the re straining order was an impe rmissible prior restraint on Inside Edition s First Amendment rights.6204 To be granted such an order, Berger had to demonstrate that the harm he would suffer would be great enough to justify a prior restraint.6205 The standard for a prior restraint was, however, especially high: Protection of the right to information that appeals to the public at large and which is disseminated by the media is the cornerstone of the free press clause of the first amendment [sic]. No matter how inappropriate the acquisition, or its correctness, the right to disseminate that information is what the Constitution intended to protect. Consequently, even prior restraint of the dissemination of national security information has been denied.6206 201 Id. 202 893 F.2d 856 (6th Cir. 1990). 203 898 F.2d at 59. 204 Id. 205 Id. at 60 206 Id.

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111 The Sixth Circuit ruled, therefore, that Inside Edition had demonstrated that it had a right to the writ of mandamus, and the court instructed th e district court to vacate the restraining order. The court did, however, note that its issuance of the writ did not constitute an approval of the surreptitious means used to gather this information.6207 Wiretap at the State Level In his dissent in Bartnicki Chief Justice Rehnquist noted that, the District of Columbia, and 40 states, have enacted laws prohibiting th e intentional intercepti on and knowing disclosure of electronic communications.6208 Like Title III, the federal wiretap law,6209 most state wiretap laws only require the consent of one of the parties to the communication.6210 Other state wiretap laws, however, require the consent of all parties. This section examines wiretap claims against the press based on state law. California California Penal Code section 632(a) provides: Every person who, intentionally and without th e consent of all par ties to a confidential communication, by means of any electronic am plifying or recording device, eavesdrops upon or records the confidential communicati on, whether the communi cation is carried on among the parties in the presence of one anot her or by means of a telegraph, telephone or other device, except a ra dio, shall be punished6211 Section 637.2(a) allows the partie s to a conversation to sue the person who violated 632(a) for damages.6212 Such a suit can only be won if the plaintiff can prove that the communication was 207 Id 208 Bartnicki v. Vopper 532 U.S. 514, 542 (Rehnquist, C.J., dissenting). See also Id. at fn.1 (listing state statutes). 209 18 U.S.C. 2510-2520. 210 See Franklin, supra note 29 at 591. 211 CAL. PENAL CODE 632(a) (2004). 212 This section of the statute allows damages in the amounts of, Five Thousand dollars ($5,000) [or] [t]hree times the amount of actual damages, if any, sustained by the plaintiff. It also allows the plaintiff to bring an action for an injunction. CAL. PENAL CODE 637.2 (2004).

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112 confidential under the meaning of the statute. The statute defines a confidential communication as: [I]nclud[ing] any communicati on carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to th e parties thereto, but excludes communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect th at the communication may be overheard or recorded.6213 In deciding cases based on 632, the courts must determine whether the plaintiff had a reasonable expectation of conf identiality for the communication. The Ninth Circuit ruled, in Deteresa v. ABC ,6214 that a reasonable jury could not find that a woman, who refused to be interviewed by an ABC reporter but continued to have a casual conversation with him, had a reasonable expect ation that the reporte r would not publish the information from the conversation.6215 In Deteresa a producer from ABC visited the home of Beverly Deteresa who had been a flight attendant on the flight that O.J. Simpson had taken after the murder of his ex-wife.6216 Deteresa never allowed the producer into her home, and expressed that she did not want to be interviewed for the news program. She did, however, continue to talk to the producer outside of her home and explained that she was fru strated with hearing some of the false news reports being published about what occurred on the flight with O.J. Simpson and explained to the producer some of the details of what really occurred.6217 The next day the producer called Deteresa to ask her if she would appear on came ra; she declined. The producer then informed her that he had recorded their co nversation from the previous day, and also had a 213 CAL. PENAL CODE 632(c). 214 121 F.3d 460 (9th Cir. 1997). 215 Id. at 465. 216 Id. at 462. 217 Id. 462-463.

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113 cameraperson videotape the conve rsation from a public street.6218 That night, ABC broadcast a clip of the news program Day One in which the announcer stated th at the flight attendant who served Simpson in the first class section told Day One that she did not, as widely reported, see him wrap his hand in a bag of ice.6219 ABC did not, however, broadcast the audiotape.6220 The court noted that the main issue of di spute between the parties on the 632 claim was whether the conversation between Deteresa and the producer constituted a confidential communication under the statute.6221 According the court, Application of the statutory definition of confidential communication turns on the reasonable expectations of the parties judged by an objective standard and not by th e subjective assumptions of the parties.6222 But to determine whether Deteresa had a reasonable ex pectation of privacy, the court had to choose between two tests from the California state courts of appeal.6223 The first test, from Frio v. Superior Court ,6224 stated that, under sec tion 632 confidentiality a ppears to require nothing more than the existence of a reasonable expectati on by one of the parties that no one is listening in or overhearing the conversat ion, but confidentiality coul d be defined more narrowly by defining it as a reasonable expectation that the content of the communication has been entrusted privately to the listener.6225 The opposing test, from OLaskey v. Sortino takes a narrower 218 Id. at 463. 219 Id. 220 Id. 221 Id. See also Sanders v. ABC, Inc., 978 P.2d 67 (Cal. 1999) (discussing the expectation of privacy with respect to conversations). 222 121 F.3d at 463 (quoting OLaskey v. Sortino 273 Cal. Rptr. 674, 677 (Cal. Ct. App. 1990)). 223 Id. 463-464. 224 250 Cal. Rptr. 819 (Cal. Ct. App. 1988). 225 Id. at 824.

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114 construction of confidential a nd required that in making the de termination of reasonableness with respect to confidentiality courts must ex amine whether either party reasonably expected, under the circumstances, that the conversatio n would not be divulge d to anyone else.6226 Without guidance from the California Supreme Cour t, the federal appellate court chose to adopt the OLaskey standard.6227 Using this standard the court had to ask whether Deteresa had an objectively reasonable expectation that the conversation w ould not be divulge d to anyone else.6228 The court found that she did not. The producer, when first approach ing Deteresa, immediately revealed who he was and for whom he worked.6229 Further, Deteresa did not tell the producer that she wanted her statements to remain in confidence. Neither did the producer promis e not to reveal the information Deteresa told him.6230 The court found that no one in Deteresas shoes could reasonably expect that a reporte r would not divulge her account of where Simpson had sat on the flight and where he had or had not kept his hand.6231 The Deteresa court did not discuss the fact that the producer never entered Deteresas home in order to record their conversation. Bu t the location in which a conversation occurred affects whether or not a court will find that a party to the conversation had a reasonable 226 Deteresa 121 F.3d at 464 (quoting OLaskey 272 Cal. Rptr. at 677). 227 121 F.3d at 464 The California Supreme Court had not visited th ese conflicting lines of cases. When a decision turns upon applicable state law, and th e highest state court has not adjudicated the issue, this Court must determine what decision the highest court woul d reach if faced with the issue. Id. (quoting Capital Dev. Co. v. Port of Astoria 109 F.3d 516, 519 (9th Cir. 1997)). 228 121 F.3d at 465. 229 Id. 230 Id. 231 Id.

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115 expectation that the conversa tion would be confidential.6232 For example, in Wilkins v NBC, Inc ., a California appellate court ruled that a conversat ion that took place during a lunch meeting held on the outdoor patio of a restaurant was not confidential under the meaning of 632.6233 Wilkins arose from a Dateline NBC investigation of th e pay-per-call industry.6234 Two producers for NBC contacted SimTel, a pay-per-call company, in response to a national advertisement and arranged a lunch meeting with company representatives.6235 The producers brought two additional people to the meeting that took plac e on the patio of a re staurant; the company representatives did not inquire into th e identities of two additional people.6236 During the meeting the SimTel representatives explained how their pay-per-call system worked; the producers recorded the meeting using hidden cameras and later broadcast excerpts from the recording.6237 The SimTel representatives argued that th e producers violated 632 by recording the lunch meeting because the meeting contained confidential communications. The court disagreed.6238 The court found that the statute excl udes communication made in a public gatheringor any other circumstances in wh ich the parties to the communication may reasonably expect that the co mmunication may be overheard.6239 Using the OLasky test for a reasonable expectation of confid entiality, the court found that the SimTel representatives did not 232 See Wilkins v. NBC, Inc., 84 Cal. Rptr. 2d 329 (Cal. Ct. App. 1999). 233 Id. at 337. 234 Id. at 332. Pay-per-call is the practi ce of charging for services on so-cal led toll-free 800 lines, often without the knowledge of the persona billed for the services. Id. 235 Id. 236 Id. 237 Id. 238 Id. at 337. 239 Id. (quoting CAL. PENAL CODE 632(c)).

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116 have a reasonable expectation of confidentiality because the re presentatives did not tell anyone that the information discussed was private.6240 Also, the representatives did not inquire into the identities of the two additi onal people that accompanied the producers to the meeting, and acknowledged that the producers could have brought as many people as they wished to the meeting.6241 Further, the representati ves did not attempt to pause in the conversation or lower their voices when waiters came to the table. Ther efore, the court ruled th at the conversation was not confidential under th e California statute.6242 At least one California appellate court has ruled, however, that the ability of another person to hear a conversation be tween two other parties is not synonymous with the ability to overhear, which would cause a conversation to be excluded from protection as confidential under 632.6243 In Lieberman v. KCOP Television decided after Wilkins a doctor sued a television station claiming the company violated 632 when it twice sent reporters, with hidden cameras, to his clinic seeki ng medical attention.6244 An unidentified companion accompanied the reporters during both visits.6245 The reporters used the hidden camera footage to do a story about allegations that the doctor prescribed prescription drugs without the proper medical examinations.6246 In response to the doctors lawsuit, the station filed a special motion to strike the complaint under the California Code of Ci vil Procedure 425.16, also called a strategic 240 84 Cal. Rptr. 2d at 337. 241 Id. 242 Id. But see Sanders v. ABC, Inc., 85 Ca. Rptr. 2d 909 (Cal. 1999) (finding that the mere fact that a conversation could possibly be overheard did not automatically negate the speakers expectation of privacy). 243 See Lieberman v. KCOP T.V., Inc., 1 Cal. Rptr. 3d 536, 544 (Cal. Ct. App. 2003). 244 Id. at 539. 245 Id. 246 Id. The television station used the excerpts for a news segment entitled, Caught in the Act. Id.

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117 lawsuit against public participation (SLAPP).6247 The station claimed that 632 was not applicable because the doctor had no expectatio n of privacy with the extra person involved, and that 632 should not apply to its newsgathering activities.6248 The trial court denied the stations motion to strike and found that th e recorded conversati ons were confidential communications despite the third-party presence.6249 On appeal, the station argued that the doctor could not have had a reasonable expectation of privacy because of the presence of the third person, who was not a participant in the conversations, during the medical consultations.6250 The court found, however, that the definition of party includes not only a participant, but also a person who is simply concerned.6251 Further, the court found that the presence of others does not nece ssarily make an expectation of privacy objectively unreasonable, but presents a question of f act for the jury to resolve.6252 With respect to the stations argument unde r its SLAPP motion, the court found that the California Code of Civil Procedure 425.16 provided protection for four categories of statements, The first two categories pertain to statements made in connection with proceedings before or in connection with an issue under consideration or revi ew by a legislative, executive, or judicial body, or any other offici al proceeding authorized by law. The third category identifies matters of public intere st addressed in circumstances traditionally protected by the right to freedom of speec hCategory four provides a catch-all for any other conduct in furtherance of the exercise of the constitutional ri ght of petition or the 247 Id. at 539-540. 248 Id. The court seems to use privacy an d confidential interchangeably. 249 Id. at 540. 250 Id. at 543-544. 251 Id. at 544. 252 Id.

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118 constitutional right of free speech in connection with a public issue or in an issue of public interest.6253 The court noted that the last two categories of statements applied to the facts in Lieberman .6254 The court characterized the hidden recordings as not being pure 632 violations because the recordings were used in connection with an investig ative report by the media.6255 The court found that reporting the news is speech subject to the protecti ons of the First Amendment and subject to a motion brought under se ction 425.16, if the report concer ns a public issue or an issue of public interest.6256 The court determined that the imprope r prescribing of drugs is a crime and is of great public interest.6257 Therefore, the court concluded that the broadcast was in furtherance of the stations exercise of free speech in conne ction with an issue of public interest.6258 But this conclusion did not lead the cour t to create an affirmative defense for 632 allowing secret recording if justified by the legitimate motive of gathering news.6259 The court noted that the California Supreme Court recognized that [T]he common law intrusion tort and section 632 might, under some circumstances, impose an impermissible burden on newsgath ering; and that such a burden might be found in a law that, as applied to the press, would result in a significant constriction of the flow of news to the public and thus eviscerate the freedom of the press6260 253 Id. at 540-541. 254 Id. at 541. 255 Id. 256 Id. 257 Id. 258 Id. 259 Id. at 545. 260 Id. (quoting Shulman v. Group W Prod. Inc. 955 P.2d 469, 495 (Cal. 1998)).

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119 The court noted, however, that the California Suprem e Court did not create a bright-line rule that 632, or intrusion, placed an impermissible burden on the press. Further the court found that the conduct of journalism does not depend, as a ge neral matter, on the use of secret devices to record private conversations.6261 Therefore, the court ruled that there was no need to create a affirmative defense to 632 based on newsgathering.6262 The federal District Court for the Central District of California found, however, that the California courts did recognize a distinction between an individual discussing a conversation to another party and the covert r ecording of the conversation.6263 In Turnbull v. ABC, a group of actors sued ABC after a producer for the comp any attended and secretly recorded acting workshops in which the actors participated.6264 In order to gain entry to the workshops, the producer had to pay a fee,6265 and at one workshop she was requir ed to sign a si gn-in sheet that stated, I am here to practice my acting in a pr ofessional atmosphere and sharpen my craft, I am here to hone my audition techniques.6266 While at the workshops, the producer recorded a variety of conversations, most of which the producer was not a part.6267 The district court found that a triable issue of fact existe d as two whether the actors attending the workshop had a reas onable expectation of privac y in their conversations, and therefore, summary judgment for ABC was inappropriate.6268 The court rejected ABCs 261 1 Cal. Rptr. at 545. 262 Id 263 See Turnbull v. ABC, 2004 U.S. Dist. LEXIS 24351 (C.D. Cal. 2004). 264 Id. at *10-11. 265 Id. at *12. 266 Id. at *15. 267 Id. at *14. 268 Id. at *33-34.

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120 argument that the conversations were not c onfidential because others could overhear the conversations in the room.6269 The court found that if the c ourt were to accept Defendants argument, it would vitiate the statute. Defendants are arguing, in effect, that anything that can be overheard is not confidential. However, in orde r for a conversation to be recorded, it must be overheardin this case by a sensitive recording device.6270 Further, the court noted that the producer recorded conversations th at occurred when the participants were across the room from or had their backs to the producer.6271 Also, the workshops were small, and at least one recorded participant stated they dont have to know that, which the cour t determined was an indication that the participant had a reas onable expectation of privacy.6272 Florida The 1974 amendment to the Florida wiretap statute6273 requiring consent from all parties to record a communication resulted in a lawsuit filed by Sunbeam Television Corporation, and the Miami Herald against the State of Florida.6274 The station claimed that the amendment constituted a prior restraint on the press because it impaired its ability to gather news.6275 The television station asserted that secret recordings during investig ative reporting activities were necessary to insure the accuracy of the information gathered a nd to preserve the conversation. [Also] the interests protected by the statute were interests in privacy, wh ich are subordinate to 269 Id. at *26. 270 Id. 271 Id. at *31-33. 272 Id. at *32. 273 FLa. STAT. 934.03(2)(d). 274 See Shevin v. Sunbeam T.V. Corp., 351 So. 2d 723 (Fla. 1977). 275 Id. at 725.

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121 their alleged First Amendment rights.6276 In defense of its claim that recording was a necessity, the station further argued that There are three basic elements which necessita te the use of concealed recording equipment in investigative reporting: accuracy; candidne ss of person interviewed; and corroboration. The element of accuracy, they say, is in the in terest of the individual as well as the public generally, in that no one will be harmed by an unt ruth. Further, it is in the interest of the broadcaster or publisher that it be able to establish the truth with precision.6277 The station also noted that indi viduals engaged in criminal or undesirable beha vior would not speak freely to the press if they kne w that they were being recorded.6278 The Florida Supreme Court noted, however, th at the media plaintiffs did not claim that the amendment to the statute in any way re strained their ability to publish the news.6279 Applying this fact, the court cited the U. S. Supreme Courts decisions in Pell v. Procunier ,6280 Saxbe v. Washington Post ,6281 and Branzburg v. Hayes6282 to conclude that the amendment to the wiretap law was not a restraint on the pres s. The court noted that the amen dment did not restrict what the press could publish, nor did it excl ude any source from the press, intrude upon the activities of the news media in contacting sources, prevent th e parties to the communication from consenting to the recording, or restri ct the publication of any in formation gained from the communication.6283 The court found that in passing the la w, the Florida legislature was allowing 276 Id. 277 Id. 278 Id. The station also claimed that if no corroboration of the information gathered was available other than the notes or memory of the reporter, the news resulting form the investigation could not be broadcast. Id. 279 Id. 280 417 U.S. 817 (1974 )(holding that the press did not have a right of access to a prison under the First Amendment). 281 417 U.S. 843(1974) 282 408 U.S. 665 (1972)(holding that the First Amendment di d not invalidate the requirement that reporters appear and testify before a grand jury). 283 351 So. 2d at 727.

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122 all parties to a convers ation to have an expectation of privacy.6284 In holding that the amendment to the Florida wiretap statut e did not violate the First Amendment, the court found: News gathering [sic] is an integral part of news dissemination, but hidden mechanical contrivances are not indispensabl e tools of news gathering. Th e ancient art of investigative reporting was successfully practiced long before the invention of electronic devices, so they cannot be said to be indispensable tools of inves tigative reporting. The First Amendment is not a license to trespass or to intrude by electronic means into the sanctity of anothers home or office. It does not b ecome such a license simply because the person subjected to the intrusion is reasonably suspected of committing a crime.6285 Illinois The Illinois eavesdropping statute prohibits th e use of an eavesdropping device to hear or record a communication without the cons ent of all parties to the communication.6286 The statute defines an eavesdropping de vice as any device capable of being used to hear or record oral conversation or intercept, retain, or transcribe electron ic communications whether such conversation or electronic comm unication is conducted in pers on, by telephone, or by any other means.6287 The statute also prohibits the use or disc losure of any informa tion that an individual knows or should know was obtained by use of an eavesdropping device.6288 What exactly constituted an eavesdropping device was at issue in Cassidy v. ABC .6289 Arlyn Cassidy, then a Chicago police officer, file d for an injunction against ABC after a camera crew secretly recorded him during a police undercover investigation.6290 The manager of a 284 Id. at 726-727. 285 Id. at 727. 286 720 ILL. COMP. STAT. ANN. 5/14-2 (LexisNexis 2008). The statute was previously ILL. REV. STAT. Ch. 38, par. 14-2, which only required the consent of one of the parties to a conversation. See Cassidy v. ABC, Inc., 377 N.E.2d 126, 129 (Ill. App. Ct. 1978). 287 720 ILL. COMP. STAT. ANN. 5/14-1 (LexisNexis 2008). 288 720 ILL. COMP. STAT. ANN. 5/14-2 (LexisNexis 2008). 289 377 N.E.2d 126 (Ill. App. Ct. 1978). 290 Id. at 127-128.

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123 massage parlor contacted ABC to complain about police harassment of his business.6291 A film crew then set up a camera in a two-way mirror, which gave them access to a neighboring room, but did not install a microphone in the room.6292 The police officer entered the room accompanied by one of the lingerie models who wo rked at the massage parlor. Upon entering the room and noticing what looked like camera li ghts, the officer asked the model if someone were filming, to which the model responded in th e affirmative without re vealing that a news crew was recording. After some interaction with the model the officer arrested her for solicitation.6293 He was joined in the room by thr ee other undercover officers and asked the model if anyone was in the neighboring room. At that time, the camera crew opened the door and yelled out Channel 7 News while con tinuing to film the scene in the room.6294 In ruling that summary judgment for ABC was appropriate, the Il linois appellate court ruled that the camera crew did not violate the statute because a camera was not an eavesdropping device as the camera could not have been used to hear or record a conversation.6295 The court found that the only eavesdropping de vice was the microphone that was located in the other room, which did not record the interacti on between the officer and the model.6296 Further, the court noted that although it was logical that the officer would have expected his interaction with the model to be private, his conduct was perfor med in the line of his duty as an officer.6297 The court also found that because the officer continue d into the room with th e model even after the 291 Id. at 128. 292 Id. 293 Id. 294 Id. 295 Id. at 129. 296 Id. 297 Id. at 130.

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124 model informed him that someone was recording in the room, the officer had no expectation of privacy.6298 The federal District Court for the Northern Dist rict of Illinois, in in terpreting the Illinois law, has found that there is no expectation of privacywhere the i ndividual recording the conversation is a party to the conversation.6299 In Russell v. ABC, Inc. a reporter obtained a job at a grocery store to do an inve stigation of seafood handling met hods; while working at the store, the reporter wore a hidden camera.6300 Excerpts from the hidden camera footage were then broadcast on ABCs PrimeTime Live news program.6301 The manager of the store claimed that the reporter violated the Illi nois eavesdropping statute because it was a crime in the state to record a conversation without the consent of all parties.7302 The court rejected the managers claim and f ound that the Illinois c ourts have held that no eavesdropping occurs where an i ndividual to whom statements are made or directed records them, even without the knowledge or consent of the person making the statements private vis-vis that individual.7303 The court determined that the critical factor in the determination of whether there was a violation of the statute was w hether [the parties] justifiably expected their conversation to be private.7304 Although the store manager cl aimed that she intended her 298 Id. 299 Russell v. ABC, Inc., 1995 U.S. Dist. LEXIS 7528, *7 (N.D. Ill. 1995) (quoting People v. Herington 645 N.E.2d 957, 958 (Ill. 1994). 300 1995 U.S. Dist. LEXIS at *1. 301 Id. 302 Id. at *4. 303 Id. at *5 (quoting Herrington 645 N.E.2d at 958-959). 304 Id. at *6. The court established this rule from People v. Beardsley 503 N.E.2d 346 (1986) in which a defendant secretly recorded the conversation of two police officers sitting in the front of a squad car while he was under arrest. In that case the Illinois Supreme Court did not find that this conduct violated the eavesdropping statute. 503 N E.2d at 350.

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125 conversations with the reporter to be private, the court found that the reporter did not illegally eavesdrop on the manager.7305 The court ruled that when a part y to a conversation records it, all he is doing is making a more accurate record of so mething that he has already heard. This does not violate the [managers] right to privacy.7306 In this case the reporter had only made a recording of what she heard; she therefore did not infringe on the managers privacy, or impermissibly eavesdrop. Louisiana The Louisiana wiretap statute was fashioned after the federal wiretap statute Title III.7307 The statute prohibits the willful interception of any wire or oral communication; it also outlaws the use and disclo sure of any of the cont ents of an interception.7308 The Louisiana law further prohibits the publication or broad cast of the contents of an interception.7309 A violation of the law can result in criminal and civil penalties.7310 In spite of the prohibition on publication and broadcast, at least one Louisian a state court has ruled that the statute did not violate the First Amendment or the Louisiana constituti onal right to freedom of the press.7311 In Keller v. Aymond a publisher intercepted and recorded the convers ations of two men. The publisher then called a press co nference at which he played th e recordings and gave copies 305 1995 U.S. Dist. LEXIS at 6-7. The court analogized this case with another Illinoi s eavesdropping statute case, Thomas v. Pearl 998 F.2d 447 (7th Cir. 1993), in which a basketball coach secretly recorded telephone conversation he had with a recruit. That court in that case ruled that the coach did not ea vesdrop on the recru it because the recruit agreed to speak with him. Id. at 453. 306 1995 U.S. Dist. LEXIS at *7. 307 See LA. REV. STAT. ANN. 15:1301-1307. See also Keller v. Aymond, 722 So. 2d 1224, 1230-1232 (La. Ct. App. 1998) (discussing the differences in langua ge between the Louisiana statute and Title III). 308 LA. REV. STAT. ANN. 15:1303. 309 LA. REV. STAT. ANN. 15:1307. 310 LA. REV. STAT. ANN. 15:1303 and 15:1312. 311 See Keller 722 So. 2d at 1230.

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126 of transcripts of the conve rsations to those in atte ndance, including reporters.7312 The newspapers printed excerpts from the tran scripts of the conversations.7313 The two men filed suit against both the publisher and the newspapers claiming that they had violated the Louisiana wiretap law.7314 The newspapers filed a motion for, and were gr anted, summary judgment by the trial court. The Louisiana appellate court reversed.7315 The appellate court found that in this case the constitutional rights of access to information and the freedom of the press were in conflict with the right to privacy. But because there were no Louisiana rulings on the issue, in considering the constitutionality of the state wiretap statute the court found it instructive to examine Title III cases in order to accurately balance the two competing rights.7316 The court first considered the U.S. Court of Appeals for the Eighth Circuits decision in Certain Interested Individuals, John Does I-V, Who Are Employees of McDonnell Douglas Corporation v. The Pulitzer Publishing Company ,7317 in which that court ruled that an individuals right to privacy outweighed the pub lics interest in access to the information [contained in FBI affidavits attached to federal search warrants] and that Title III, 18 U.S. 2510 et seq, protected the materials from disclosure because the materials contained intercepted communications.7318 The Pulitzer court found: [D]isclosure to a limited audience of professi onally interested strangers in the context of their official duties is not the equivalent to di sclosure to the public. Title III does not allow 312 Id. at 1226. 313 Id. 314 Id. The two men claimed that the newspapers had published, disclosed and used the contents of the illegal interception. Id. 315 Id. 316 Id. at 1227-1228. 317 895 F.2d 460 (8th Cir. 1990). 318 722 So. 2d at 1228.

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127 public disclosure of all lawfully obtained wiretap evidence just because a few officers are privy to its contents; if this were constr ued to do so, much of the statute would be superfluous7319 Analogizing the ruling in Pulitzer to its case, the Louisiana appellate court found that once the two mens conversations were inte rcepted by the publisher and then used in the press conference, this did not transform the intercepted comm unications into non-inter cepted communications unprotected by the Louisiana statute.7320 The court also noted that the two men might be entitled to more protection because of th e nature of their conversations.7321 The Keller court distinguished Pulitzer finding that the cas e at bar involved no government or law enforcement interception of th e conversations, only private citizens illegally recording the conversations.7322 Because of this, the court found that there [was] no legitimate public interest to be served by the newspapers disclosure of th e private conversations of the plaintiffs in this case. The plaintiffs ha d an expectation of pr ivacy in their personal conversations that is clearl y protected by the Fourth Amen dment to the United States Constitution and [the Louisiana state] constitution.7323 The court also repeated the rule that the press had no more right to access information than the public did,7324 following the Ninth Circuits ruling in California First Amendment Coalition v. Calderon .7325 In that case, court ruled that the freedom of the press, although 319 895 F.2d at 465. 320 722 So. 2d at 1228 321 Id. at 1229. 322 Id. 323 Id. The court found that neither the pu blic nor the press has a right of ac cess to private conv ersations between private individuals initiated in the privacy of their respective homes. Id. 324 Id. 325 150 F.3d 976 (9th Cir. 1998) (holding that a rule prohibiting th e press from witnessing certain procedures with respect to a prisoners execution di d not violate the First Amendment).

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128 substantial, [is] not without limits.7326 The Calderon court, while recognizin g the role the media played in informing the public, st ated that the First Amendment di d not offer the press the right to gather news not available to the public, nor di d the importance of interest in the subject matter factor into the ruling.7327 The Louisiana appellate court found that the public did not have a right to access private telephone conversations and th at conduct was prohibited under the state wiretap statute.7328 As such the court ruled [The] prohibitions are constitutional and are extended to the press. The press cannot escape the prohibitions of the Louisiana El ectronic Surveillance Act under the guise of constitutional protection. We find that La.R.S. 15:1301 et seq s hould be stringently enforced and construed against the violator of any of its sections pursuant to a literal interpretation of the statute.7329 Maryland Like the Louisiana statute, the Maryland Wiretapping and Electronic Surveillance Statute was patterned after Title III.7330 Like Title III, the Mary land wiretap law prohibits the interception, use or disclosure of an oral or wire communication.7331 The Maryland statute also has a scienter requirement in that intercepti ons, use and disclosure of an oral or wire communication is unlawful only if done willfully and knowing or having reason to know that the information was obtained through the inte rception of a wire or oral communication.7332 The federal District Court for the District of Maryla nd analyzed the statutes willfulness requirement 326 Id. at 981 (citing Branzburg v. Hayes 408 U.S. 665 (1972)). 327 Id. at 982. 328 722 So.2d at 1229 329 Id. 330 See MD. CODE ANN., CTS. & JUD. PROc. 10-401-414 (2008). 331 MD. CODE ANN., CTS. & JUD. PROC. 10-402 (2008). 332 Id.

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129 in Benford v. ABC, Inc.7333 In Benford an insurance salesman was recorded on a hidden camera while giving a sales speech to members of C ongress who were posing as prospective insurance purchasers.7334 Portions of the recording were broadcast on ABC.7335 The salesman sued claiming that ABC violated the Maryland wiretap law.7336 In denying the salesmans motion for summar y judgment on his claim that ABC violated the Maryland wiretap law, the court found that there were issu es concerning ABCs conduct in relation to the law that needed to be considered by a jury.7337 First, the court ruled that in order to prove that ABC was liable under the state law, the salesman had to prove that ABC acted willfully in recording his communication.7338 The Maryland statute did not, however, define willfully, nor did the legislative history, or any prior Maryland state court decision.7339 The federal court found that it was appropriate to l ook to the meaning of willful as established in Title III.7340 The court noted that under T itle III, willful denotes eith er an intentional violation or a reckless disregard of known legal duty.7341 The court found then th at there were issues of material fact as to whether ABC acted willfully to violate the Maryland law. 333 649 F. Supp. 9 (D. Md. 1986) 334 See Benford v. ABC, Inc., 554 F. Supp. 145, 147 (D. Md. 1982). 335 Id. 336 Id. The salesman also claimed that the defendants violated his 4th Amendment rights, invaded his privacy, and violated Title III, among other things. 337 Benford 649 F. Supp. at 10. 338 Id. 339 Id. 340 Id. 341 Id. The court also noted that the willfulness standard was the same in both the criminal and civil context of the statute. Id.

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130 The court also found that the salesman had failed to prove that A BCs recording of the salesmans sales pitch was an oral communi cation within the meaning of the Maryland statute.7342 The Maryland statute defi ned oral communication as any conversation or words spoken to or by any person in priv ate conversation, but the statut e failed to define private conversation.7343 The court found that the sales presen tation took place in a private home, and that there was not an indication as to whether the salesman wanted his listeners to pass the message or to others.7344 The court further found that th ere was no evidence as to the reasonableness of the salesmans intentions. Therefore, the court f ound that summary judgment was in appropriate for the salesman.7345 Massachusetts A 2007 Massachusetts case involving th e publication of unlawfully intercepted recordings followed the U.S. Supreme Courts ruling in Bartnicki.7346 In Jean v. Massachusetts State Police Mary Jean, a local political activist who maintained a website complete with articles and critiques of local politicians, was contacted by Paul Pechonis. Pechonis explained that a few days prior, armed State Police ha d arrested him at his home for a misdemeanor.7347 While at his home, the officers conducted a warr antless search that was audio and videotaped by a nanny-cam.7348 Pechonis gave Jean a copy of the tape, which Jean posted on her Web site 342 Id. at 11. 343 Id. (quoting MD. CODE ANN. 10-401). 344 649 F. Supp. at 11. 345 Id. 346 See Jean v. Massachusetts State Police, 492 F.3d 24 (2007). 347 Id. at 25. 348 Id.

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131 accompanied by editorial comment.7349 A few months later the Stat e Police informed Jean that she was in violation of Massachusetts Genera l Law ch. 272, 99, which prohibited the willful interception and/or disclosure of a wire or oral communication.7350 The letter required that Jean remove the video within 48 hours or the pol ice would contact the District Attorney.7351 Jean filed a motion for a temporary restrain ing order and an injunc tion against the State Police and the Massachusetts Attorney General, cl aiming that the threatened enforcement of 99 would infringe on her right to free speech.7352 The federal district c ourt granted the injunction. ruling that Bartnicki was the controlling law for the decisi on. The court also found that Jean had lawfully obtained the vide otape that related to a matter of public concern.7353 The district court concluded that a balancing of the State and the p ublic interest weighed in favor of granting the injuction; the State Police appealed.7354 In examining the U.S. Supreme Courts decision in Bartnicki the U.S. Court of Appeals for the First Circuit found th at the Supreme Court based its ruling on three factors.7355 First, the Court found that the federal wire tap statute Title III was conten t-neutral, and the law was a regulation of pure speech.7356 Second, the Court identified two state interests: removing the 349 Id. 350 Id. at 25-26. MASS. GEN. LAWS ch. 272 99 defines interception as to secretly hear, secre tly record, or aid another to secretly hear or secretly record through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication. MASS. GEN. LAWS ch. 272 99 (B)(4)(2007). 351 492 F.3d at 26. The police again contacted Jean to clarify the meaning of the st atute, and stated that because the statute was limited to oral and wire communications if Jean were to remove the audio portion of the recording, she would not be in violation of the statute. Id. 352 Id. 353 Id. 354 Id. 355 Id. at 28. 356 Bartnicki 532 U.S at 526.

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132 incentives for intercepting private communications and minimizing the harm to persons whose conversations have been illegally intercepted.7357 The Court found that the first interest carried little weight as there was no evidence that punishing someone w ho lawfully obtained information from a third-party who unlawfully obtained th e information would reduc e the amount of illegal interceptions.7358 The Court found that the second interest carried more weight because it dealt with the state interest in protecting privacy.7359 The Court emphasized th at the rule with respect to public disclosure of private in formation that was obtained was the Daily Mail principle that states that, if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not const itutionally punish publication of the information, absent a needof the highest order.7360 Using this balancing princi ple, the Court considered the question of whether the government could punish the publisher of information lawfully obtained from a source that unlawfully obtained it. The U.S. Supreme Court decided that the states privacy concerns give way when balanced agai nst the interest in pub lishing matters of public importance.7361 Applying the Bartnicki decision to the Jean case, the First Circuit concluded that Jeans circumstances [were] otherwise materially indi stinguishable from those of the defendants in Bartnicki .7362 In so ruling, the court first noted that 99 was a content-neutral law of general 357 Id. at 527. 358 Id. at 530-531. 359 Id. at 533. The court found th at disclosure of the contents of a private conversation can be an even greater intrusion on privacy than the interception itself. Id. 360 Id. at 528. (quoting Smith v. Daily Mail 443 U.S. 97). 361 532 U S. at 534. The Court noted that, one of the costs asso ciated with participation in public affairs is an attendant loss of privacy. Id. 362 492 F.3d at 33.

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133 applicability.7363 The court then considered the competi ng interests involved with respect to 99 as applied to the circumstances in Jean. The court found that the st ate interest in protecting privacy was less compelling in Jean than in Bartnicki.7364 In Bartnicki the main concern was encouraging the uninhibited ex change of ideas and inform ation among private parties,7365 the First Circuit found, [ h]owever, this interest is virtually irrelevant here, where the intercepted communications involve a search by police officers of a private citizens home in front of that individual, his wife, other members of the famil y, and at least eight la w enforcement officers.7366 Further, the court found that th e state interest in deterri ng illegal interception was not compelling, even though the identi ty of the interceptor was know n, there was no justification for punishing the subsequent publisher of th e illegally intercepted information.7367 In considering the public interest in the publication of the intercepted information, the First Circuit noted that the inte rest in permitting the publication of truthful information of public concern applied.7368 Therefore, the only possible argument that the State Police could have was that Jean did not obtain the information lawfully.7369 The court found, however, that Jeans conduct was not determinative of whether she acte d unlawfully. Instead th e court ruled that the determinative question [was] whether the First Amendment,permits Massachusetts to criminalize Jeans conduct.7370 The court found that it did not, and that neither Jeans 363 Id. at 29. 364 Id. 365 Bartnicki 532 U.S. at 532. 366 492 F.3d at 30. 367 Id. 368 Id. 369 Id. 370 Id. at 31.

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134 knowledge of the illegality of the interception, nor her ab ility to prevent further dissemination of the interception, was persuasive.7371 Consequently, the court ru led that the First Amendment protected Jeans publication of the video on her Web site.7372 Michigan A Michigan appellate court immediately dism issed a media defendants assertion that a claim against the media for a violation of the Michigan eavesdropping stat utes involved the First Amendment.7373 Dickerson v. Raphael arose after a daughter secret ly taped a conversation she had with her mother, in the presence of other re latives, concerning her moth ers participation in the Church of Scientology.7374 The daughter received help in intercepting the c onversation from producers for the Sally Jesse Raphael talk show.7375 The daughter wore a microphone that transmitted the conversation to the producers, who later used excerpts of the conversation on the talk show.7376 The mother, who declined to appear on the show, sued Sally Jesse Raphael claiming that the producers had violated Michigan Compiled Laws 750.539 and 28.807, both of which prohibit eavesdropping, and the use or divulgence of any information obtained from eavesdropping.7377 A jury decided the case in favor of Raphael.7378 371 Id. at 31-32. 372 Id. at 33. The court also supported its opinion with Boehner v. McDermott 484 F.3d 573(D.C. Cir. 2007)(indicating that if a Congressman had been a private citizen the court would have granted First Amendment protection to his disclosure of an illegal interception of the conversation of another Congressman). 373 See Dickerson v. Raphael, 564 N.W.2d 85, 88 (Mich. Ct. App. 1997). 374 Id. at 87. 375 Id. 376 Id. at 88. 377 Id. 378 Id.

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135 The Michigan appellate court rejected Ra phaels argument that the producers did not violate the Michigan statutes because the conversa tion was not private. Because neither statute contained a definition of private, the court resorted to a dictionary definition that defined private as intended for or restricted to the use of a particular person or gr oup or class of persons.7379 The court ruled that the trial court erred in inte rpreting the statute as a llowing a participant in a conversation to broadcast [the conversati on] simultaneously to other nonparticipants.7380 The trial court had based this ruling on a case in which a court had allowed the police to monitor informants with eavesdropping devices.7381 The court of appeal found this case inapplicable because the statutes contain exceptions for law en forcement; the present case did not involve the police, only private persons.7382 Further, the court found that the trial court e rred in reasoning that if one participant broadcasts a conversation, that conversation would no longer be private.7383 The trial court had based its reasoning on cases in which courts had found that users of cordless telephones knew that the telephon es could possibly transmit their conversations to others beyond those intended, and therefore defendants who ove rheard these conversations were not liable under Title III.7384 The appellate court found that unlike the plaintiffs in the cases involving cordless phones, the mother in this case did not know about or consent to the interception of her conversation.7385 379 Id. at 89 (quoting Websters Third New International Dictionary, Unabridged Edition (1966)). 380 564 N.W.2d at 89 381 Id. (citing People v. Collins 475 N.W.2d 684 (Mich. 1991)). 382 564 N.W.2d at 89. 383 Id. 384 Id. (citing Tyler v. Berodt 877 F.2d 705 (8th Cir. 1989) and Edwards v. Bardwell 632 F. Supp. 584 (M.D. La. 1986)). 385 564 N.W.2d at 89.

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136 The court decided that as a matter of law, the producers conduct vi olated the Michigan eavesdropping statutes, and therefore, the case warranted a directed verdict in favor of the mother.7386 The court ruled that the conversation be tween the mother and daughter was private, as the mother testified that she expected the conversation to be private, and both the daughter and the producers knew that the mother would not have consented to have the conversation recorded.7387 The court also found that While the First Amendment protect[ed] the publication of truthful information of legitimate public concern, the information ma y not be obtained unlawfully: Generally applicable laws do not offend the first amendment simply because their enforcement against the press has incidental effects on it ability to gather and repot the news.7388 The court found that the Michigan eavesdropping statutes were ge nerally applicable laws that only have an incidental effect on de fendants newsgathering and reporting.7389 The Supreme Court of Michigan later reverse d, in part, the judgment of the appellate court and remanded the case for consideration of the issue of whether the conversation was private.7390 Minnesota Like many other states, the Minnesota wire tapping statute was modeled after Title III.7391 Like Title III, the Minnesota statute attaches liab ility to anyone who intentionally intercepts an oral communication.7392 The statute also provides an exemp tion for a party to the conversation so 386 Id. at 90. Blacks Law Dictionary defines directed verdict as, A ruling by a trial judge taking a case form the jury because the evidence will perm it only one reasonable verdict. BLACKS LAW DICTIONARY 746 (2d ed. 2001). 387 564 N.W 2d at 90. 388 564 N.W.2d at 92 (citing Cohen v. Cowles Media Co. 501 U.S. 661, 669(1991)). 389 564 N.W.2d at 92. 390 See Dickerson v. Raphael, 601 N.W.2d 108 (Mich. 1999). 391 See Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402 (Minn. Ct. App. 1995). 392 MINN. STAT. 626A.02(1)(a)(1992).

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137 long as the interception was in fu rtherance of a crime or tort.7393 A Minnesota appellate court has found that the burden of proving that an interception was in furthe rance of a crime or tort lay with the plaintiff.7394 In Copeland v. Hubbard Broadcasting, a couple allowed an intern to accompany a veterinarian into their home to treat their cat.7395 Neither the couple nor the doctor knew that the student was also an employee of a local televisi on station, who at the time of the visit wore a hidden camera to videotape the doctors methods.7396 The station later broadcast excerpts from the recordings. The couple su ed the station for trespass a nd later moved to amend their complaint to include a claim for a violation of both Title III and the Minnesota wiretap statute.7397 The trial court denied their motion. The appellate court affirmed the trial c ourts ruling and found th at the couple had not presented evidence that would create a triable issue.7398 The court also rejected the couples claim that the station was not exempted from the Minnesota statute because the station had committed trespass. The court ruled that the couples allegation of trespass was insufficient because the statute requires that the communicat ion be intercepted for the purpose of committing a tortious act. The evidence is undisputed that [the station] intercep ted the communication for 393 MINN. STAT. 626A.02(2)(d)(1992). 394 Copeland 526 N.W.2d at 406 (citing Thomas v. Pearl 998 F.2d 447, 451 (7th Cir. 1993)). 395 526 N.W.2d at 404. 396 Id. 397 Id. 398 Id. at 406.

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138 commercial purposes and not for the purpose of committing trespass.7399 Therefore, the court affirmed the trial courts denial of th e couples motion to amend their complaint.7400 New Jersey The New Jersey W iretapping and Electronic Surveillance Control Act, modeled after Title III, allows anyone whose conversati on has been intercepted or disclo sed to file a civil suit against the individual who intercepted or disclosed their conversation.7401 In Hornberger v. ABC, Inc .,8402 two policemen sued ABC after hidden cameras recorded the officers stopping, frisking, and searching the car occupied by three young black men. Producers from ABC arranged for the three men to drive one of their mothers Me rcedes on the New Jersey highway to test complaints of law enforcement targeting blacks.8403 ABC broadcast clips from the footage taken by hidden cameras on its PrimeTime Live television program; the officers sued under the New Jersey wiretap statute. Ruling that the o fficers had no expectation of privacy in their conversation while searching the car, the trial court granted ABC summary judgment.8404 The New Jersey appellate court affirmed the grant of summary judgment on appeal. Although the officers did not consen t to have their conversation recorded, the court found that they did not have a reasonable expectation of privacy while searching the car.8405 This was because the car was considered open and publicly accessible: 399 Id. 400 Id. 401 N.J. STAT. ANN. 2A:156A-1 to 4. 402 799 A.2d 566 (N.J. Super. Ct. App. Div. 2002). 403 Id. at 586. 404 Id 405 Id. at 627.

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139 Here, the location of the conversation [the o fficers] was more akin to an open, accessible place than an enclosed, indoor room. The sear ch of the car occurred on the shoulder of a busy public highway. Automobiles and other mean s of transportation are afforded a lower expectation of privacy than homes, offices and other structures. The four doors of the Mercedes were wide open while [the officers] were conductin g their search, rendering the vehicle even more exposed. These officers we re public servants performing their police function in public view. 8406 Because the officers were performing the search in public, and because they were on duty, the officers expectation of privacy [was] restricted.8407 The court ruled, therefore, that summary judgment for ABC was appropriate. Oregon A media defendant challenged the constitutio nality of the Oregon wiretap statute in Oregon v. Knobel .8408 While being interviewed by a reporte r for a local newspaper, a deputy noticed that the reporter had a ta pe recorder in his shirt pocket.8409 The officer asked the reporter if he knew that it was illegal to record a c onversation without permissi on, to which the reporter replied in the affirmative.8410 The conversation continue d for another 10-15 minutes.8411 The reporter was charged with viol ating Oregon Revised Statutes 165.540(1)(c), which provides that no person shallobtain or attempt to obt ain the whole or any part of a conversation by means of any device, contrivance, machine or ap paratus, whether electrical, mechanical, manual or otherwise, if all participants in the convers ation are not spec ifically informed that their conversation is being obtained.8412 The reporter was convicted of the statutory violation. 406 Id. at 623 (citations omitted). 407 Id. at 625. 408 777 P.2d 985 (Or. Ct. App. 1989). 409 Id. at 987. 410 Id. 411 Id. 412 Id. (quoting OR. REV. STAT. 165.540(1)(c)).

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140 On appeal the reporter argue d that the statute violated his freedom of press under both Oregon and U.S. Constitutions, because it prevented him from transcribing notes from a conversation and it interfered with his ability to gather news.8413 The court rejected his claims, and found that the statute did not prevent him from taking notes because the statute was aimed at prohibiting electr onic surveillance.8414 By transcribing a recording, a person was not making an interception, therefore, there wa s no violation of the law. Furt her, the court ruled, prohibiting surreptitious tape recording of a conversation does not restrict [the reporters] right to communication with individuals or to gather news.8415 The court found that the First Amendment did not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.8416 The court held that the Oregon statute did not impermissibly burden the press and was, therefore, constitutional.8417 Pennsylvania The constitutionality of the application of Pe nnsylvanias wiretap statute with regard to the press was challenged in the 1991 case of Boettger v. Loverrro .8418 In Boettger the Pennsylvania State Police inter cepted Boettgers te lephone conversation pursuant to a warrant obtained under the Pennsylvania wiretap statute.8419 The conversation revealed Boettgers involvement with illegal gambling. Boettg er was later charged with bookmaking and 413 777 P.2d at 987-989. 414 Id. at 988. 415 Id. 416 Id. at 989. 417 Id. The court did, however, remand the case for a new trial as to whether or not the tape recorder was hidden and to for the trial courts err in not excluding evidence of bias. Id. at 989-990. 418 587 A.2d 712 (Pa. 1991). 419 Id. at 713.

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141 conspiracy.8420 While awaiting trial Boettger filed a mo tion to compel the District Attorney to produce a transcript of the inter cepted call. The District Attorney complied and attached a copy of the transcript to a response, and filed it with the Clerk of Court.8421 Boettger also filed a motion to suppress the intercepted call.8422 Loverro, a reporter who attended the hearing for the suppression motion went to the Clerk of Courts office to see the court file for the case.8423 The reporter was allowed to inspect th e file including the transcript of the interception, from which the reporter made notes for publication.8424 Publication of the stor y was withheld, however, until the court issued an order denying Boettgers motion to suppress.8425 Boettger sued the reporter claiming a violation of the Pennsylvania wiretap statute.8426 The trial court granted Boettger a directed verdict as to the newspapers liability for violating the wiretap statute fr om the reporters disclosure of the transcript information.8427 The trial court also denied the newspapers motions for a judgment notwithstanding the verdict and a new trial.8428 The Pennsylvania intermediate appellate court reversed the tr ial courts ruling, and entered a ruling for the newspaper. The Pennsyl vania Supreme Court reve rsed the intermediate 420 Id. at 714. 421 Id. 422 Id. This motion was filed pursuant to 18 Pennsylvani a Constitutional Statutes 5721, which allows any aggrieved person in any trialto suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom. 18 PA. CONS. STAT. 5721. 423 587 A.2d at 714. 424 Id. 425 Id. 426 Id. 18 Pennsylvania Constitutional Statutes 5725 creates a civil cause of action for any person whose wire or oral communication is intercepted, disclose or used. 18 PA. CONS. STAT. 5725. 427 587 A 2d at 715. 428 Id. A judgment notwithstanding the verdict, or non obstante veredicto, is a judgment entered for one party even though a jury verdict has been rendered for the opposing party. BLACKS LAW DICTIONARY 378 (2d ed. 2001).

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142 appellate court.8429 The newspaper then filed a petition for certiorari to the U.S. Supreme Court, which vacated and remanded the case to the Pe nnsylvania Supreme Court in light of the Florida Star v. BJF8430 decision.8431 On remand, the Pennsylvania Supreme Court found the three Smith v. Daily Mail8432 considerations, as stated in Florida Star, to be applicable to the Boettger case.8433 The Boettger court identified those considerations as: [F]irst the government has ample means of safeguarding significant interests upon which publication may impinge since the publication of only lawfu lly obtained information is protected; second, punishing the press for publication of information already publicly available is relatively unlikely to further th e interest for which the state seeks to act; and third, timidity and self-censorship may re sult from permitting punishment of the media for publishing truthful information.8434 First the Boettger court found that the transcripts in this case [did] not fall within the category of recordation or transcription of interceptions intended to be protected by the Act.8435 The transcripts were submitted by the District Atto rney to the Clerk of Court, thereby making the transcript a public record without an y restrictions on access or disclosure.8436 Also, the information from the transcript was not of the categories of information the statute was designed to protect.8437 The excerpts of the transcripts used in the news story detailed Boettgers dealing with illegal gambling. According to the court, This is precisel y the type of conversation sought to be uncovered by the authorized in terceptions of the Act. The st ates interest in protecting our 429 587 A.2d at 715. 430 491 U.S. 524 (1989). 431 587 A.2d at 715 432 443 U.S. 97 (1979). 433 587 A.2d at 716. 434 Id. (quoting Florida Star 491 U.S. at 533-535). 435 587 A.2d at 717. 436 Id. at 718. 437 Id.

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143 citizens right to privacy does not extend to protecting a right to privacy in illegal endeavors.8438 The court also found that the denial of the motion to suppress the interception removed any protection for the transcript under the statute.8439 Finally, the court found that the newspaper had made a good faith reliance on the denial of the motion to suppress, as illustrated by the newspapers wa iting for the court order denying the motion to publish the story.8440 The court noted the teachings of Florida Star tell us that to disallow the reliance of Easton upon the court order as a defense to the civil suit is to run afoul of the constitutional infirmity of timidity and self-censorship.8441 The court found that the press served a purpose by disseminating information, which is protected by the First Amendments press clause.8442 It is the freedom of dissemination of informati on and ideas of public importance that is the bonding agent in a democracy. Without dispute, it is in the public inte rest to have a free press. Thus the legislature intended for the pub lic interest in a free press to supercede the interest of an individual whose private conversation regarding his illegal activities had been lawfully intercepted and lawfully obtained by a newspaper.8443 Therefore, the court affirmed the judgment of the intermediate appellate court, and ruled in favor of the newspaper.8444 438 Id. The court examined the statutes legislative history to find that illegal activity such as blackmail, kidnapping, and gambling were the kind of activities that the legislat ure was concerned with in authorizing law enforcement power to intercept telephone conversations. Id. 439 Id. at 719. The court found that the court order denying the motion to suppress placed the contents of the wiretapped conversation squarely into the category of evidence which is neither privileged nor protected. Id. 440 Id. 719-720. 441 Id. at 720 (quoting Florida Star 491 U.S. at 535-536). 442 587 A.2d at 720 443 Id. at 720-721. 444 Id. at 721.

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144 Texas The press has also challenged the constitutionality of the Texas wiretap statute.8445 Stephens v. Dolcefino involved a television st ations hidden camera investigation of a city politician. A reporter for KTRK Television bega n an investigation of the City of Houston Controller.8446 To do so, the reporter sent a researcher from the television station to a legal education conference, at which the Controller was in attendance, equipped with a hidden camera.8447 At the conference, the researcher film ed the Controller, along with other public officials, and recorded their conv ersations using the hidden camera.8448 The next month, the television station broadcast footage recorded on the researchers camera.8449 William Stephens, then Deputy Controller of the City of Houston, su ed the station claiming the station had violated the Texas wiretap statute.8450 The trial court granted the tele vision stations motion for summary judgment partially on the ground that the applic ation of the statute violated the First Amendment.8451 On appeal, Stephens argued th at the trial court erred in gr anting summary judgment to the television station.8452 The Texas appellate court agreed. According to the appellate court, the television station relied on cases where the media defendant lawfully obtained truthful 445 See Stephens v. Dolcefino, 126 S.W.3d 120 (Tex. Ct. App. 2003). See also Peavy v. WFAA-TV, Inc., 221 F.3d 158 (5th Cir. 2000)(holding that neither Title III nor the Texas wiretap act infringed upon the First Amendment). 446 126 S.W.3d at 124. 447 Id. 448 Id. 449 Id. 450 Id. at 125. 451 Id. at 137. 452 Id.

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145 information.8453 But the court found that the medi a has no special immunity from the application of general laws. [It] has no special pr ivilege to invade the rights and liberties of others.8454 Further the court found that it was for a jury to decide whether the television stations use of the hidden camera to record the conversations was lawful.8455 The court found that until that issue of lawfulness was resolv ed, the court could not determine whether the television station could use the First Amendm ent as a defense to the wiretapping charge.8456 Washington The Washington privacy statute, 8457 like wiretap statutes, pr ohibits the r ecording of private conversations without consent, has also been challenged for constitutionality under the First Amendment with respect to journalists. Bu t, the court in that ca se did not definitively decide on the statutes constitutionality.8458 Fordyce v. City of Seattle arose from the arrest of a journalist, Jerry Fordyce, who was filming a public demonstration. Police arrested Fordyce for violating the Washingt on privacy statute.8459 Although the charges were later dropped, Fordyce filed suit against the city claimi ng the police had violated his civil rights by interfering with his First Amendment right to gather news.8460 He also petitioned the court for a permanent injunction against the enforcem ent of the Washington statute.8461 The federal district court 453 Id. 454 Id. (quoting Branzburg v. Hayes 408 U.S. 665, 683 (1972)). 455 126 S.W.3d at 137. 456 Id. 457 WASH. REV. CODE 9.73.030. 458 See Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). 459 Id. at 438. 460 Id. 461 Id.

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146 granted the citys motion for summary judgment on the civil rights claims and declined to grant Fordyce injunctive relief.8462 Instead, the court granted Fordyce declaratory relief, stating that the Washington statute does not prohi bit the videotaping or sound-r ecording of conversations held in a public street, within the he aring of persons not participati ng in the conversation, by means of a readily apparent recording device.8463 On appeal, the Ninth Circuit found that there we re issues of material fact as to whether the police attempted to prevent Fordyce from ex ercising his First Amendment rights by arresting him under the statute.8464 Further the Ninth Circuit vacated th e trial courts grant of a declaratory judgment, finding that the federal district court never informed the State of Washington that it planned to render a declaratory judgment as to the constitutionality of the state statute.8465 Therefore, the State of Washington did not have an adequate opportunity to defend the statute.8466 Conclusion As evidenced by the cases documented above, the courts may carve out First Amendment protections for the press in cases brought under the federal wiretap statute. When the press has not directly participated in the recording of a communica tion, but has still acquired the information from that recording, the majo rity of the courts have relied on the Florida Star/Daily Mail considerations in order to determine whet her or not the First Amendment protected the press. In Bartnicki the controlling Supreme Court case on this issue, the Court used the Florida 462 Id. at 439. 463 Id. (quoting Fordyce v. City of Seattle 840 F. Supp. 784, 794 (W.D. Wash. 1993). 464 55 F.3d at 439. 465 Id. at 440. 466 Id. The court concluded that the district court had failed to comply with 28 U.S.C. 2403(b), which requires that when a state or state agency is not a party to an action wh ere the constitutionality of a statute is in question, the court must notify the state to allow it to interv ene in the action. 28 U.S.C. 2403(b).

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147 Star/Daily Mail precedent in ruling that the publication of wiretap information by the press was constitutionally protected. The courts placed a great emphasis on the method of newsgathering. How the journalists obtained the information was noted in all of the cases in which the press was not a party to the underlying recording. The press obtained inform ation from the government and from private individuals. In cases where the press obtained information fr om the government, the courts found that the press publication was not a violati on of Title III. In the cases where the press obtained information from privat e individuals, the cour ts were mixed in judgment, sometimes finding that the press was protected by the First Amendment, other times not. In spite of the mixed results in these opinions the courts have found that th e purpose of the use of hidden cameras and microphones, newsgathering, played an integral part in whether the disclosure of the information will be considered lawful. As in the cases brought against the press unde r Title III, the pre ss has asserted First Amendment protection for newsgathering activities when prosecuted under st ate wiretap statutes. In deciding these cases the courts, the federal and st ate courts have balanced competing interests. One of the main interests competing with the jour nalists right of freedom of the press was the right to privacy. Courts have had to determine whether the jour nalists right to gather news outweighed an individual s right to privacy in their convers ation. Preliminarily, however, the courts had to decide whether th e expectation of privacy in th at conversation was reasonable. Also, the courts had to balance the public intere st in receiving the information gathered against that individuals right to priv acy. In addition, some courts ma de assertions concerning the techniques that newsgathering necessitated, and found that the press had no privilege to disobey laws of general applicability. Therefore, when a journalist disobeyed one of these laws, the First

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148 Amendment provided no shield from liability for the unlawful acquisition of truthful information.

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149 CHAPTER 4 INTRUSION AND TRESPASS The November 1, 1963 edition of Life Magazine carried an article entitled Crackdown on Quackery, and featured photographs of A.A. Dietemann, a plumber practicing healing with minerals, herbs, and clay.81 A few weeks earlier, officers ar rested Dietemann for practicing medicine without a license. Life Magazine photographers took pictures of Dietemann as officers arrested him at his home in California.82 The magazine also used pictures that were taken, without Dietemanns knowledge or permission, inside of his home. Before Dietemanns arrest, two Life Magazine employees, working in conjunction with the District Attorneys Office of Los Angeles County, gained entry to Dietemanns home by posing as patients seeking his medical help.83 While inside Dietemanns house, the magazine employees took pictures us ing a hidden camera. The magazine workers conversation with Dietemann was also transmitt ed by a hidden radio transmitter and recorded.84 Dietemann sued the magazine publisher for invasion of privacy. Invasion of privacy by intrusion upon secl usion is a commonly alleged newsgathering tort. In intrusion cases, plainti ffs claim that the press intruded, whether by physical trespass or not, into spheres from which an ordinary man in plaintiffs position could reasonably expect that the particular defenda nt should be excluded.85 Plaintiffs have claimed various spheres of privacy including, their homes,86 a public restaurant,87 and their place of businesses.88 Related to, 1 Dietemann v. Time, 449 F.2d 245, 245 (1971). 2 Id. at 246. 3 Id. 4 Id. 5 See Pearson v. Dodd, 410 F.2d 701, 704 (1969). 6 Dietemann v. Time, 449 F.2d 245 (1971).

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150 and often claimed with, intrusion is trespass. Trespass is entry upon the property of another without permission.89 Journalists were claimed to have trespassed while covering protests,810 entering a crime scene811 and, investigating auto repair shops.812 This chapter examines cases in which the press is alleged to have intruded upon someones privacy or trespassed. Specifically th is chapter discusses those cases in which the courts have analyzed journa lists assertions of First Amendment protection for their newsgathering activities in light of the claims of trespass and in trusion. First, this chapter explores cases involving intrusion in light of the different claimed spheres of privacy. Then this chapter considers cases in which the press is al leged to have trespassed. This chapter also explores cases based on media r ide-alongs, or when the media acts in conjunction with law enforcement, paramedics, or other first responders and public officials. This chapter ends with a summary of the main themes found in the intrusion and trespass cases. Intrusion The Restatement of Torts defines an intr uder as, One who intentionally intrudes, physically or otherwise, upon the solitude or se clusion of another or his private affairs or concerns [. That person] is s ubject to liability to the other fo r invasion of his privacy, if the 7 Stressman v. Am. Black Hawk Broad. Co., 416 N.W.2d 685 (Iowa 1987). 8 Desnick v. ABC, Inc., 44 F.3d 1345, 1348 (7th Cir. 1995). 9 BLACKS LAW DICTIONARY 720 (2d Ed. 2001). 10 Stahl v. Oklahoma, 665 P.2d 839 (Okla. 1983). 11 People v. Berliner, 3 Media L. Rep. (BNA) 1942 (Yonkers (N.Y.) City Ct. 1978). 12 Am. Transmission, Inc. v. Channel 7 of Detroit, Inc., 609 N.W.2d 607 (Mich. Ct. App. 2000).

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151 intrusion would be highly offe nsive to a reasonable person.813 Broken into its essential elements, intrusion requires proof that: the defendant committed an unauthorized intrusi on or prying into the plaintiff's seclusion; the intrusion would be highly offensive or objectionable to a reasonable person; the matter intruded on was private; and the intrusion caused the plai ntiff anguish and suffering.814 Publication of information is not an essential element of intrusion.815 Intrusion rests solely on the nonconsensual prying or invasion into the spheres of privacy of another person through physical or other means. Home The home is considered a major s phere of individual privacy. In Dietemann, the Ninth Circuit ruled that Dietemann had an expectation of privacy in his home.816 When Dietemann invited the reporters into his pr ivate home, he did not assume the risk that his actions or conversation would be photographed or recorded.817 The court also ruled that the First Amendment did not immunize the magazine from liability for the repo rters invasion of Dietemanns privacy.818 The Ninth Circuit declined to recognize the hidden camera and recording device as indispensable tools of investigative reporting.819 Although agreeing with the magazines claim that newsgathering was an important part of publica tion, the court rejected the magazines claim that the use of electroni c devices was protected. The court explained: 13 RESTATEMENT (SECOND) OF TORTS 652B (1977). 14 62A AM. JUR. 2d Privacy 37 (2007). 15 Id. at comment a. 16 Dietemann 449 F.2d at 249. For facts of the case see supra text accompanying notes 1-4. 17 Id. 18 Id. 19 Id.

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152 Investigative reporting is an an cient art; its successf ul practice long antecedes the invention of miniature cameras and electronic devices The First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of anot hers home or office. It does not become such a license simply because the person subjec ted to the intrusion is reasonably suspected of committing a crime.820 The Ninth Circuit also observed that pub lication was not an essential element of intrusion, therefore, the magazines reliance on defamation cases in its defense, in which the U.S. Supreme Court recognized protection for the pub lication of tortious information, were not persuasive against Dietemanns intrusion claim.821 The court maintained that there was no First Amendment interest in protecting ne ws media from calculated misdeeds.822 The court concluded that [n]o interest protected by th e First Amendment is adversely affected by permitting damages for intrusion to be enhanced by the fact of later publication of the information that the publisher improperly acquired.823 Unlike the Dietemann Court, which ruled that a plainti ff had an expectation of privacy in his own home, a federal district court in Geor gia ruled that a woman had no expectation of privacy in her private bedroom because she was engaged in public activity.824 In Lucas v. Fox News a reporter went undercover as a college student to research a story on campus cult 20 Id. 21 Id. Time, Inc. relied on New York Times Co. v. Sullivan 376 U.S. 254 (1964)(holding that public officials had to prove actual malice in libel cases) and Rosenbloom v. Metromedia, Inc. 403 U.S. 29 (1971)(ruling that private plaintiffs had to prove more than the existe nce of libel in order to win a libel case). See also Mayes v. LIN TV of Texas, Inc., 1998 U.S. Dist. LEXIS 15088. In Mayes a case in which a public official sued a newspaper for reporting information received from a tr anscript and a copy of a secretly recorded telephone conversation, the federal district court addressed the elements of intrusion. The court found that intrusion was usually associated with either a physical invasion of a persons property or eavesdropping on anothers conversation with the aid of wiretaps, microphones, or spying. Id. at *11. 22 Id. at 250. Accord with Mitchell v. Baltimore Sun Co., 883 A.2d 1008 (Md. Ct. Spec. App. 2004). 23 Id. 24 Lucas v. Fox News Network, LLC, 2000 U.S. Dist. LEXIS 22834, *18 (N.D. Ga. 2000).

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153 activity.825 While investigating, the reporter met a nd became involved in Bible studies conducted by Esmeralda Lucas, who was a campus ministry lead er for the local branch of an international church.826 As part of her investigatio n, the reporter expressed to Lucas the desire to join the church. Lucas then invited the reporte r to her home for a private Bible study.827 While at Lucas home, the reporter secretly recorded the study sess ion; excerpts of the video footage were later used in a Fox News broadcast.828 Lucas sued for invasion of privacy by intrusion upon seclusion. The court determined that Lucas failed to es tablish all of the elements of an intrusion claim.829 In Georgia, physical intr usion was required to prove in trusion; in this case Lucas consented to the reporter s presence in her home.830 The court declined to rule that the reporters misrepresentation of being a college student did not vitiate consent for the purposes of intrusion.831 The court found that the reporter entered premises that were essentially opened to anyone who expressed an interest in membership in the church.832 The court explained that the focus of the reporters investigation was on the c hurchs activities in the community. During the course of the investigation f acts about Lucas that the [] report may have revealedthat she [wa]s a member of the Church a nd that her role [wa]s a Church member are most certainly 25 Id. at *1-2. 26 Id. at *2. 27 Id. at *3. 28 Id. 29 Id. at *13. 30 Id. Accord with Pierson v. News Group. Publns, Inc., 549 F. Supp. 635 (S.D. Ga. 1982), in which a federal district court ruled that because the co mmanding officers of a military base had consented to the medias entry for newsgathering purposes, a soldier had no claim for intrusion. Id. at 640. 31 2000 U.S. Dist. LEXIS 22834 at *17. 32 Id.

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154 public or community activities, not private affairs.833 Lucas, then, had no expectation of privacy when she invited the reporter into her home, therefore, she had no claim for intrusion.834 The Ninth Circuit also found that a plainti ff had no expectation of privacy at her home with respect to public activities. In Deteresa v. ABC, Inc .,835 a producer from ABC visited the home of Beverly Deteresa who had been a flight attendant on the flight that O.J. Simpson had taken after the murder of his ex-wife.936 Deteresa never allowed the producer into her home but did express that she did not want to be inte rviewed for the news program. She did, however, continue to talk to the producer at her door and explained that she was frustrated with hearing some of the false news reports being published a bout what occurred on the flight with O.J. and explained to the producers some of th e details of what really occurred.937 The next day the producer called Deteresa to ask her if she would appear on came ra; she declined. While the producer spoke with Deteresa, a camera crew film ed her from a public street; the producer also surreptitiously recorded their conversation. Th at night, ABC broadcast a clip of the news program Day One in which the announcer stated th at the flight attend ant who served Simpson 33 Id. at *18. 34 See also Ouderkirk v. People for the Ethical Treatment of Animals 2007 U.S. Dist. LEXIS 29451 (E.D. Mich. 2007). In Ouderkirk the court ruled that a chinchilla rancher did not have a cause of action for intrusion against a member of PETA, even though the PETA member lied to gain access to the mans ranch and to videotape the mans seminars of chinchilla ranching, later publishing excerpts from the videotape on a Web site, and in a newsletter. The court ruled that the rancher waived his expectation of priv acy when he twice invited the PETA member to his ranch. Id. at *42. The court also found that the PETA members deception did not void the ranchers consent when the activity exposed involves a commercial endeavor where no embarrassingly intimate details of anybodys life were publicized. Id. 35 121 F.3d 460 (9th Cir. 1997). 36 Id. at 462. 37 Id. 462-463.

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155 in the first class section told Day One that she did not, as widely reported, see him wrap his hand in a bag of ice.938 Deteresa sued for intrusion. The Ninth Circuit articulated the Restatemen t of Torts definition of intrusion, adopted by California, which delineates the elements of in trusion as, One who intentionally intrudes, physically or otherwise, upon solitude or seclusion of another or his private affairs or concerns is subject to liability to the other for invasion of his privacy, if the in trusion would be highly offensive to a reasonable person.939 The court noted that as a matter of law it was required to make a preliminary determination of offensivene ss, which required that it consider the degree of the intrusion, the context, conduct and circum stances surrounding the intr usion as well as the intruders motives and objectives, the setting in to which he intrudes, and the expectations of those whose privacy is invaded.940 The court determined that the filming of De teresa, who was in public view, from a public place did not intrude upon Deteresas seclusion.941 The court found that the filming had an insubstantial impact on [Deteresas] privacy interests.942 The court ruled that the surreptitious recording also was insufficiently offensive for an intrusion claim.943 The court reasoned that Deteresa spoke openly with the producer, and the producer never entered her home. The Ninth 38 Id. 39 Id. at 465. (quoting Restatement (2d) Torts 652B). 40 121 F.3d at 465 (quoting Miller v. NBC 232 Cal. Rptr. 668, 678 (Cal. Ct. App. 1986). 41 Id. at 466. 42 Id. 43 Id.

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156 Circuit also did not find eviden ce that any intimate details of anyones life were recorded.944 Consequently, Deteresa intrusion claim failed. An Alabama circuit court also ruled that a man did not have a cause of action for intrusion when journalists photographed him out side of his home after a crime. In White v. Anniston Star journalists from a local newspaper photographed Marv in White and his daughter, who stood in Whites front yard, afte r a fatal shooting at Whites house.945 The police had roped off Whites yard with crime scene tape, and both journalists and other onl ookers stood on the dirt road leading to the house.946 White claimed to have an easement for use of the dirt road.947 When Whites daughter noticed the photographer taking pictures, she or dered the photographer to leave the scene; the journalist left after the confrontation.948 The next day, the newspaper published one of the photographs of White and his daughter in conjunction with a story on the shooting.949 White sued for intrusion. The court found that although White had an easem ent to use the dirt road, he did not have the right to prevent others from using it; White did not own the dirt road.950 Also, the journalists were among several members of the public and law enforcement observing the crime scene.951 44 Id. 45 28 Media. L. Rep. 2302, 2303 (Ala. Cir. Ct. 2000). White s son shot and killed his former girlfriend, then drove to a national forest and committed suicide. Id. 46 Id. 47 Id. Blacks Law Dictionary defines and easement as and interest in land owned by another person, consisting in the right to use or control the landfor a specific limited purpose. BLACKS LAW DICTIONARY 226 (2d. Pocket Ed. 2001). 48 Id. 49 Id. 50 Id. at 2304. 51 Id.

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157 The court also noted that White knew that the jo urnalist was taking pictures, but did not request that the journalist stop.952 The court, therefore, concl uded that White had no reasonable expectation of privacy or seclusi on when he came into the yard in full view of a crowd of law enforcement officials and onlookers.953 Private Gatherings Some courts have found no First Amendment protection for journalist s that intrude into private gatherings. In Rafferty v. Hartford Courant Co., for example, a Connecticut superior court ruled that the press had no privil ege to intrude upon an unwedding party.954 Kathleen Rafferty and a male friend held the party in celebration of their recent divorces.955 Although she held the party on a hill visible to the public at a distance, the party wa s only open to invited guests.956 A photographer and a reporter for the Hartford Courant infiltrated the party, however, and took pictures and made notes about the event; at no time were the re porters given permission to attend or to report on the party.957 The newspaper published an article on the unwedding accompanied by a picture taken at the ceremony.958 Rafferty sued for intrusion.959 The court ruled that summary judgment for the newspaper was inappropriate because the newspaper was not working in the public interest when it intruded into the party.960 Although not 52 Id. The court makes no mention of the daugh ters confrontation with the journalists. 53 Id. 54 416 A.2d 1215, 1216 (Conn. Super. Ct. 1980). 55 Id. 56 Id. 57 Id. 58 Id. 59 Id. Rafferty also sued for invasion of privacy by publication of private facts and false light. Id. 60 Id. at 1221.

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158 analyzing the newspapers motion for summary judgment on the intrusion claim substantively, the court did provide a significant an alysis of the freedom of the press. The court noted that if the information about the party was obtained fairly and legitimately it might be considered to be of some minor concern to so me minor part of the public.961 Determining that there was no public interest in the story on Raffertys unwedding, the court reje cted the idea that the public had a right to know about everything: That concept implies the infusion of knowledge into the public mind. In fact, what the public has is a right to find out. That right is not absolute. The public has no right, for example, to break into a private home to see what pictures are on the wall, or to peek into a voting booth to see how someone votes. A newspa per can at best, clai m only to be one of the public. It has the same right to find out as the rest of the public.962 Viewing that the press as only a member of th e public, the court found that the press had no greater right to intrude to obtain information th an each citizen has because each citizen has the same right to publish.963 The court expressly rejected Justice Brennans suggestion in Time, Inc. v. Hill964 that the press was different than the public.965 In Time, Inc. v. Hill, a case in which a family sued a magazine for placing it in a false light, Justice Brennan, writing for the majority, stated that, We create a grave risk of serious impairment of the indispensable service of a free press in a free society if we saddle the press with the impo ssible burden of verifyi ng to a certainty the facts966 Justice Brennan in this st atement, and the rest of the Time, Inc opinion, seemed to 61 Id. 62 Id. at 1216-1217. 63 Id. at 1217. 64 385 U.S. 374 (1967) (ruling that public figures in fals e light invasion of privacy actions had to prove actual malice). 65 416 A.2d at 1217. 66 385 U.S. at 389.

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159 separate the press from the rest of the public. Ac cording to the Rafferty court, there was no historical justification for recognizing any difference between the public and the press.967 The court explained that, such a posture would se riously threaten the freedom of the press.968 If the press is a separate entity, then it must be identified. In the identification alone certain restrictions will necessarily creep in by way of the definition.969 The court maintained that if the press was defined to exclude the rest of the public, it would possibly be licensed, and the rest of th e public could be restrained from freely publishing.970 The court articulated that, There is no entity that is the pressthere is only all of us. Freedom of the press is the freedom of each person individually, collectively, jointly, severally, in partnership or co rporation, by pen, Photostat or co mputer to publish what will be subject only to law.971 A federal district court in California, like the Rafferty court, denied the press motion for summary judgment on a claim that a reporte r intruded into private acting workshops.972 In Turnbull v. ABC a group of actors sued ABC after a pr oducer for the company attended and secretly recorded acting workshops in which the actors participated.973 ABC decided that the workshops were public because the workshops were advertised in newspapers and trade publications.974 In order to gain entry to the workshops, the producer had to pay a fee975 and at 67 416 A.2d at 1217. It is very rare for a lower court to reject the reasoning of the majority U.S. Supreme Court. 68 Id. 69 Id. 70 Id. 71 Id. 72 Turnbull v. ABC, 2004 U.S. Dist. LEXIS 24351, *50 (C.D. Cal. 2004). 73 Id. at *10-11. 74 Id. at *20.

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160 one workshop she was required to sign a sign-in sheet that stated, I am here to practice my acting in a professional atmosphere and sharpen my craft, I am here to hone my audition techniques.976 While at the workshops, the producer recorded a vari ety of conversations, most of which the producer was not a part.977 The actors sued for intrusion.978 The court found that clandestine recording of a private conversation without the authorization of the part ies to the conversation, is often per se invasion of privacy, regardless of whether the conversation could have been overheard by a third party.979 Therefore, the court declined to agree with ABCs argument that the act ors did not have an expectation of privacy in their conversations because the conversations could be overheard.980 Instead, the court ruled that the actors had a reasonable e xpectation that their conversations were pr ivate and not being recorded on a hidden camera, even though some ot her their conversations could be overheard.981 The court found that the workshops took place in a private room of a private building, and that the actors could not have expected, as they talked amongst themselves in the corners or against the wall of the classroom, in their chairs awaiti ng class to begin, much less the ladies room, that a reporter was covertly recording their conversations.982 75 Id. at *12. 76 Id. at *15. 77 Id. at *14. 78 The actors also claimed trespass, emotional distress and a volition of Cal. Penal Code 632, among other things. Id. at *5. 79 Id. at *41. (citing Sanders v. ABC, Inc. 85 Cal. Rptr.2d 909). 80 Id. at *45. 81 Id. 82 Id. at *46.

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161 The court also held that the mere fact that an intruder is in pursuit of a story does not generally justify an otherw ise invasive intrusion.983 Although a courts determination that the press intrusion was offensive re quired consideration of the pre ss motives, the court found that there were some violation[s] of well-established legal areas of physical or sensory privacy [that could] rarely, if ever, be justified by a reporters need to get the story.984 The court reasoned that ABCs surreptitious taping of the acting worksh ops was one such violation, finding there was no evidence that there was any public interest in the story.985 The court further determined that ABCs use of hidden cameras in reporting was grat uitous and only for aesthetic purposes, adding nothing to the actua l investigation.986 The court decided that ABC had little justification in using hidden camera footage, and denied ABCs motion for summary judgment.987 In contrast to the rulings in Rafferty and Turnbull the Tenth Circuit ruled that a photographers photographing of body of a soldier kill ed in combat was not intrusion because the funeral was open to the public.988 In Showler v. Harpers Magazine Foundation the family of a member of the Oklahoma Nationa l Guard killed in Iraq sued Harpers Magazine after a photographer for the magazine took pictures of the guardsmans body at the guardsmans funeral.989 The guardsmans death earned a lot of media attention because he was the first 83 Id. at *47. 84 Id. at *47-48. 85 Id. at *48. The court found that ABC reported on the story weeks after the story first broke and several months after the investigation was complete. Id. 86 Id. at *48-48. 87 Id. at *50. 88 Showler v. Harpers Mag. Foud., 222. Fed. Appx 755, 765 (10th Cir. 2007). 89 Id. at 758-759.

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162 member of the Oklahoma National Guard to be killed in combat since the Korean war.990 The family expressed to the funeral home its wish to have an open casket funeral ceremony, but also that the press not be allowed to photograph the soldiers body.991 The reporter from Harpers obtained permission to attend the funeral, but was informed that there would be a section at the back of the auditorium reserved for the press, and that he co uld not interview the guardsmans family.992 The photographer took pictures of the fune ral, which 1200 people attended. At the end of the ceremony, the guardsmans casket was moved to the back of the auditorium so that those in attendance wishing to view the body coul d do so as they filed out of the room.993 The reporter for Harpers then took pictures of the guardsmans body.994 The family did not learn of the pictures until the photographer sent the guardsmans father copies of the photos the reporter had taken during the funeral.995 Harpers Magazine also published the photos and entered them into various competitions.996 The Tenth Circuit affirmed a district courts gran t of summary judgment to the magazine stating that there was no evidence that a reasonab le jury could conclude that the intrusion was highly offensive to a reasonable person.997 The court reasoned that the photographs were taken at a funeral that was open to the public, and held in an auditori um in order to accommodate the 90 Id. at 758. 91 Id. 92 Id. 93 Id. at 758-759. 94 Id. at 759. 95 Id. After the funeral, the reporter approached the guardsmans father and offered to send him copies of the photographs that he had taken. Id. 96 Id. 97 Id. at 764.

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163 members of the public th at wished to attend.998 Further, the court found that the reporter took the pictures while in the area reserved for the pr ess, and that other photographers were present.999 A Kentucky circuit court, similarly, found that a television station did not intrude on the privacy of a horse trainer when a television crew filmed the him on the grounds of a horse riding competition.9100 In Stith v. Cosmos Broadcasting the television show Inside Edition filmed Kevin Stith, a horse trainer, as he explained the use of chains in horse training.9101 The filming took place at The Celebration, where horse shows were held.9102 Inside Edition then used the footage in a show about horse abuse.9103 Stith sued the tabloid program for intrusion.9104 The court held, however, that Stith had no reasonable expectation of privacy at The Celebration.9105 The Celebration was a venue open to the public, therefore, Inside Edition did not intrude on Stiths privacy.9106 Further, Stith did not indicate th at he did not want the public to hear his comments about hor se training using chains.9107 The Court also found that Stith was well known in the horse training industry, and he made no indication that he wanted to keep his status in that industry private.9108 Consequently, the court ruled for the television program. 98 Id. at 765. 99 Id. 100 Stith v. Cosmos Broad. Inc., 25 Media L. Rep. (BNA) 1151, 1155 (Ky. Cir. Ct. 1996). 101 Id. at 1152. 102 Id. 103 Id. 104 Id. Stith also sued for defamation. Id. 105 Id. at 1155. 106 Id. 107 Id. 108 Id.

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164 Work Considering the rulings of both federal and st ate courts in intrusion cases, it is unclear whether a persons place of business is consider ed a sphere of privacy. For example in Mark v. King Broadcasting,9109 a pharmacist, under investigation fo r Medicaid fraud, sued a television channel for intrusion after the station filmed him while he was inside of his pharmacy.9110 The cameraman shot the footage of the pharmacist completely from the exterior of the pharmacy, through the pharmacys window.9111 The channel aired a clip of the footage during a report on the investigation of the pharmacist.9112 The Washington state court of appeal ruled that there was no intrusion because the film was shot from the exterior of the pharmacy in a place that was open to the public.9113 According to the court intrusion must be of something which the general public would not be free to view.9114 In this case, the court found that th e cameraman filmed nothing that a passerby could not see while walking past the pharmacy; therefore, a reasonable person would not have been offended by the filming.9115 Further, the film did not depict the pharmacist in any embarrassing situation. The court concluded the filming of the interior of Marks pharmacy from outside the building, in conjunction with a legitimate news story, was neither an unreasonable nor an unwarranted in trusion upon Marks seclusion.9116 109 618 P.2d 512 (Wash. Ct. App. 1980). 110 Id. at 514. 111 Id. 112 Id. The pharmacist also sued for defamation as a result of publication of the footage. Id. 113 Id. at 519. 114 Id. 115 Id. 116 Id. at 520.

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165 On appeal, the Washington Supreme Cour t affirmed the apellate courts ruling.9117 The state supreme court explained that intrusion upon a plaintiffs secl usion had to be substantial in order to be actionable.9118 The court stated: On the public street, or in any other public place, the plaintiff has no legal right to be alone; and it is no invasion of his privacy to do no more than follow him about and watch him there. Neither is it such an invasion to take his photograph in su ch a place, since this amounts to nothing more than making a record, not differing essentially from a full written description, of a public sight wh ich anyone would be free to see.9119 The court held that there was no intrusion because the film footage was shot from a place open to the public.9120 The court also ruled a person accused of a crime loses some of his or her claims to privacy.9121 A federal district court made a similar ruli ng in a case where the president of a company sued a broadcast station for intrusion. In Machleder v. Diaz,9122 Arnold Diaz, a reporter for WCBS-TV in Newark, acting on a tip, went to a lot adjacent to the Flex craft Corporation, an adhesives and other chemi cal products manufacturer.9123 The tip reported that someone was illegally dumping chemical waste at the lot.9124 At that location, Diaz observed many large drums marked with the words flammable and hazardous.9125 Diaz and his camera crew then proceeded next door to the Flexcraft building, where they filmed an area inside of the building, 117 Mark v. The Seattle Times, 635 P.2d 1081, 1095 (Wash. 1981). The court consolidated five cases in which the pharmacist sued various media outlets for defamation. Id. 118 Id. at 1094. 119 Id. (quoting W. Prosser, TORTS 808-809 (4th Ed. 1971)). 120 635 P.2d at 1095. 121 Id. 122 538 F. Supp. 1364 (S.D.N.Y. 1982), affd in part revd in part at 801 F.2d 46 (2d Cir. 1986). 123 538 F. Supp. at 1367. 124 Id. 125 Id.

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166 lighted by the camera lights, from the outside.9126 Bruce Machleder, the son of the companys president asked Diaz to stop filming and to leave because trade s ecrets were visible.9127 When Diaz attempted to ask the younger Machleder about th e drums in the lot, he was directed to the buildings office.9128 At this time Irving Machleder arrived in the Flexcraft parking lot; Diaz immediately began filming and asking Machleder questions about the drums.9129 Machleder informed Diaz that he did not want to be f ilmed and told him to call a city government department in response to th e questions about the drums.9130 Diaz continued to ask questions, and followed Machleder as he attempted to walk to his office.9131 The federal court found that there was no intr usion because Diaz filmed Machleder in the parking lot, a semi-public area, and he was visible to the public eye.9132 Further, the court found that even though Diazs questioning of Machleder was aggressive, the questioning occurred in one encounter with plaintiff and does not constitute unabated hounding of the plaintiff.9133 The court, therefore, concl uded that there was no intrusion.9134 In both Mark and Machleder the courts decided that ther e was no intrusion, for the most part, because the media filmed plaintiffs from pub lic vantage points. Cour ts have also ruled in favor of media defendants when jo urnalists have entered a plaint iffs place of business. An 126 Id. 127 Id. 128 Id. 129 Id. 130 Id. 131 Id. 132 Id. at 1374. 133 Id. 134 Id.

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167 example of this was Desnick v. ABC, Inc ,9135 in which ABC broadcast a story that was the culmination of three months of investigation of the Desnic k Eye Centers in Illinois and Wisconsin. To create the story, PrimeTime Live s investigative team contacted Dr. James H. Desnick, who allowed a film crew to videotape in side the main eye clinic in Chicago, permitted access to a cataract removal operation and granted interviews with various doctors, eye clinic staff and patients.1136 Dr. Desnick did not know, however, that A BC had also sent fake patients to the eye clinics armed with hidden cameras, which were able to record the eye examinations they received.1137 PrimeTime Live broadcast the hidden camera segments juxtaposed with interviews with former eye clinic patient s, staff, and experts on ophthalmology. After the segment aired, Dr. Desnick sued ABC for intrusion.1138 The Seventh Circuit found that ABCs tes t patients had not invaded the doctors privacy by entering the clinics and surre ptitiously taping th eir interactions.1139 According to the court, ABC had not infringed upon the privacy in terests in concealing intimate personal facts and in preventing intrusion into legitimately private activities.1140 The court reasoned that none of the doctors private information was revealed during the investigati on. Further, the test patients only recorded conversations between the doctors and themselves.1141 135 44 F.3d 1345 (7th Cir. 1995). 136 Id. at 1348. 137 Id. 138 Id. at 1347. 139 Id. at 1353. 140 Id. 141 Id.

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168 A federal district court in Arizona also found that there was no intrusion when ABC, under false pretenses, entered and film ed a laboratory with hidden cameras.1142 In Medical Laboratory Management Consultants v. ABC, Inc., the owners of a medical laboratory, the Devarajs, sued ABC claiming the company had intruded upon their privacy.1143 A reporter from ABC was able to tour the Devarajs laboratory after she called them and told them that she was a cytotechnologist interested in starting her own laboratory.1144 During the tour, a hidden camera specialist posing as a computer expert recorded footage of the active la b with a hidden camera, while accompanying the reporter. The footage was later broadcast in a report about inaccurate results in pap smear tests.1145 The Devarajs sued ABC for intrusion. In reviewing the Devarajs intrusion claim, th e court noted that the expectation of privacy is diminished in the workplace.1146 According to the court when courts have considered claims in the workplace, they have generally found for th e plaintiffs only if the challenged intrusions involved information or activitie s of a highly intimate nature.1147 In this case, the Devarajs had invited the reporters into their laboratory without requesti ng that what was discussed not be disclosed to others.1148 Devaraj also did not take any precautio ns to ensure the confidentiality of his discussion with the reporters.1149 The court also found that the topics of conversation centered 142 Med. Lab. Mgmt. Consul. v. ABC, Inc., 30 F. Supp. 2d 1182, 1191 (D. Ariz. 1998). 143 Id. at 1204. The Devarajs also claimed public disclosure of private facts, intentional infliction of emotional distress, unfair practices, trade libel, negligent infliction of emotional distress, conspiracy, wiretapping, fraud, interference with contractual relations, trespass and punitive damages. Id. at 1186. 144 Id. at 1185. 145 Id. 146 Id. at 1188. 147 Id. 148 Id. 149 Id.

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169 on the entire laboratory business and general bus iness practices, all of which Devaraj freely shared, without disclosing a ny intimate personal facts.1150 The court concluded that Devaraj had no reasonable expectation of privacy during th e tour of the lab or th e conversation with the reporters.1151 The court also stated that the offensiveness of an intrusion was determined by considering the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruders motives and obj ectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.1152 The intruders motive was particularly important in cases involvi ng newsgathering journalists.1153 The court found that the publics interest in the news and the absence of less i nvasive methods of reporting the story may mitigate the offensiveness of the intrusion.1154 The court determined that the journalists in this case were collecting information on a story of public interest: the potential for laboratory errors in pap smear testing.1155 Further, the journalists did not pry into the Devarajs private affairs or endanger their safety.1156 The court concluded that because the journalists had not intruded on 150 Id. at 1189 (quoting Desnick 44 F.3d at 1353). The court noted that one of the topics of conversation was about how much Mr. Devaraj paid his technologist in comparison to other labs. 30 F. Supp. 2d 1189. 151 Id. 152 Id. (quoting Deteresa v. Am. Broad. Co., Inc ., 121 F.3d 460, 465 (9th Cir. 1997). 153 Id. at 1190. 154 Id. The court cites Shulman v. Group W Prod., Inc ., 74 Cal. Rptr.2d 843 (Cal. 1998), in which the California Supreme Court ruled that [I]nformation collecting techniques that may be highly offensive when done for socially unprotected reasonsfor purposes of harassment, blackmail, or prurient curiosity, for examplemay not be offensive to a reasonable person when employed by journalists in pursuit of a socially or politically important story. Id. at 867. 155 30 F. Supp. 2d at 1190. 156 Id.

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170 the Devarajs private affairs, and the intrusi on was not highly offensiv e to a reasonable person, ABC was entitled to summary judgment.1157 A federal district court in Illinois found that because a woman did not prove that a journalists secret recording of their conversation harmed her, she did not have a claim for intrusion.1158 In Russell v. ABC, Inc ., a reporter for PrimeTime Live obtained a job at Potash Brothers, a grocery store in Chicago that so ld seafood products. While working there, the reporter wore a hidden camera and microphone, whic h recorded conversations she had with the stores manager, Marilyn Russell.1159 Portions of the conversa tions were aired during the PrimeTime Live broadcast. The court ruled that the secr et recording of conversations that Russell willingly had with the journalist did not amount to prying into Russells private life.1160 The court reasoned that Russell could only have possibly been harmed by the broadcasts of excerpts from the conversations, and not from the actual taping.1161 The court ruled, theref ore, that Russell did not have a claim for intrusion.1162 Not all courts have followed the Russe ll ruling. In 1999, four years after the Russell court denied a plaintiffs claim for intrusion after her conversa tions at work were secretly recorded, the California Suprem e Court, although acknowledging that a worker had only a limited expectation of privacy at her workplace, ruled that he coul d still maintain an intrusion 157 Id. at 1191. 158 Russell v. ABC, Inc., 1995 U.S. Dist. LEXIS 7528, *22 (N.D. Ill. 1995). 159 Id. at *1. 160 Id. at *21-22. 161 Id. at *22. 162 Id. The Med. Lab court noted this ruling in its alternative reasoning as to why the Devarajs did not have a claim for intrusion. 30 F. Supp. 2d at 1191.

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171 claim against a reporter who secr etly recorded his conversation.1163 Sanders v. ABC, Inc. arose after a reporter for ABC obtained employment as a telephone psychic at Psychic Marketing Group, where Mark Sanders also worked as a psychic.1164 Once hired by the company, the reporter was given a cubicle, where she conducted psychic readings for call-in customers. The reporter could hear readings and conversa tions from other cubicles and the aisles.1165 While at work, the reporter wore a hidden camera in her hat, and a microphone to record her daily interactions.1166 The reporter recorded Sanders convers ations, once when he was in the aisle speaking with another coworker and a second time when he spoke directly to the reporter.1167 A PrimeTime Live broadcast contained excerpt s from the second conversation.1168 The court noted that although in California there was no intrusi on unless the plaintiff proved that they had a reasonable expectation of privac y, this did not mean that the privacy had to be absolute or complete.1169 According to the court, mass media videotaping may constitute an intrusion even when the events and communications recorded were visible and audible to some limited set of obs ervers at the time they occurred.1170 The court found that the idea of seclusion was relative; so even though an individual did not ha ve an expectation of confidentiality in a conversation, the individual might have a reas onable expecta tion of privacy 163 Sanders v. ABC, Inc., 978 P.2d 67 (Cal. 1999). 164 Id. at 69. 165 Id. at 70. 166 Id. 167 Id. 168 Id. at fn.1. 169 Id. at 71. 170 Id. at 72. The court based this finding on its decision in Shulman v. Group W. Prod ., 74 Cal. Rptr.2d 843 (Cal. 1998). See infra text accompanying notes 740-757.

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172 with regard to that conversation not being recorded.1171 The court found, There are degrees and nuances to societal recognition of our expectati ons of privacy; the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law.1172 The court also found that privacy, with resp ect to intrusion, require d an evaluation into the identity of the intruder.1173 This was so, because employees mi ght still have an expectation of privacy with respect to a stranger entering their workplace, despite the fact that the conversations and interactions at is sue could be witnessed by coworkers.1174 The court stated that the ABC reporter was not an employee of the psychic company when she recorded the conversations of her coworkers; at that time she acted solely as an agent of ABC.1175 Further, the court distinguished Desnick, ruling, We are concerned here with interactions between coworkers rather than between a proprietor and customer.1176 Further the court found that as opposed to the Desnick clinic, which was open to the public, the area in which the reporter recorded the conversations was not public.1177 The court also rejected ABCs claim that allowing a workplace privacy doctrine would place a dangerous chill on the press investigat ion of abusive activities in open work areas, 171 Id. at 72. 172 Id. 173 Id. at 73. 174 Id. at 73-74. 175 Id. at 76. When she answered the phones and gave re adings, she was functioning as an employee of the telepsychic company. 176 Id. at 77. 177 Id.

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173 implicating substantial First Amendment concerns.1178 The court maintained that it had not adopted a workplace privacy doctrine, and held that the possibility of being overheard by coworkers does not, as a matter of law, render unreasonable an employees expectation that his or her interaction within a nonpublic workplace will not be videotaped in secret by a journalist. The court ruled Nothing we say here prevents a media defenda nt from attempting to show, in order to negate the offensiveness element of the intrusion tort, that the claimed intrusion, even if it infringed on a reasonable expectation of privacy, was justified by the legitimate motive of gathering the news. As for possible First Amendment defenses, any discussion must await a later case.1179 Public Persons The publicness of a plaintiff also bears on whether a court will rule in favor of a news organization accused of intrusion. In Cassidy v. ABC, Inc.,1180 an Illinois appe llate court ruled that the press did not intrude upon the seclusion of a police officer filmed during an official investigation. Arlyn Cassidy, then a Chicago poli ce officer, filed for an injunction against ABC after a camera crew secretly recorded hi m during a police unde rcover investigation.1181 The manager of a massage parlor contacted ABC to complain about police harassment of his business.1182 A film crew then set up a camera in a two-way mirror, which gave them access to a neighboring room, but did not in stall a microphone in the room.1183 The police officer entered the room accompanied by one of the lingerie mode ls working at the massage parlor. Upon 178 Id. 179 Id. 180 377 N.E.2d 126 (Ill. Ct. App. 1978). 181 Id. at 127-128. 182 Id. at 128. 183 Id.

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174 entering the room and noticing what looked like camera lights, the officer asked the model if someone were filming, to which the model responde d in the affirmative without revealing that a news crew was recording. After some interacti on with the model, the o fficer arrested her for solicitation.1184 He was joined in the room by thr ee other undercover officers and asked the model if anyone was in the neighboring room. At that time, the camera crew opened the door and yelled out Channel 7 News while continuing to film.1185 The court found that the news stations filming of the office r during his investigation did not amount to intrusion because as a police officer, Cassidy was considered a public official.1186 The court noted that the Illinois Supreme Court had recently ruled that police officers were public officials and held that an officer had no cause of action against a newspaper for libel unless he bore the burden of showing that the publication was motivated by actual malice.1187 The Cassidy court found that public offici als connection with the government made their actions a source of public interest.1188 Applying this reasoning to the police officers claim, the court found [I]t appears at once that plaintiff was not a private citizen engaged in conduct which pertained only to himself. He was a public official performing a laudable public service and discharging a public duty. In our opini on, under these circumstances no right of privacy against intrusion can be said to exist with reference to the gathering and dissemination of news concerni ng discharge of public duties.1189 184 Id. 185 Id. 186 Id. at 131-132. 187 Id. at 131. 188 Id. 189 Id. at 131-132.

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175 The court distinguished Dietemann saying that Dietemann involved a private individual while this case involved a public official.1190 The court also noted Eick v. Perk Dog Food Co .,1191 an appropriation case in which the Illinois Supreme C ourt ruled, The right of privacy is, of course, limited in cases of express or implied consen t and in areas of legitimate public interest.1192 The Cassidy court agreed with the news stations argument that the police activities were areas of public interest. Furt her, the court found [T]he very status of the policeman as a public official, as above pointed out, is tantamount to an implied consent to informing the genera l public by all legitimate means regarding his activities in the discharge of his public duties. There is no allegation in any of the pleadings charging defendants or any of them with actual malice or with any willful attempt to impede police work.1193 The court concluded that there was no intrusion by the press.1194 The Tenth Circuit similarly found that the press had not intruded upon the seclusion of two officers accused of rape.1195 Alvarado v. KOB-TV arose after a news station obtained information from a sealed search warrant rela ted to a rape investig ation involving two New Mexico police officers.1196 KOB-TV ran a news story detaili ng the investigation and also naming the two officers and showing footage of them as the officers answered their front doors.1197 At some point between the first and second broadcast of the story, the statio n learned that the two officers were undercover narcotics detectives, theref ore the station blurred officers faces in the 190 Id. at 132. 191 347 Ill. App. 293 (Ill. 1952). 192 Id. at 299. 193 377 N.E.2d at 132. 194 Id. 195 Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1218 (10th Cir. 2007). 196 Id. at 1213. 197 Id. at 1214.

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176 second broadcast.1198 A later story reported that the officers had b een cleared of the rape charges.1199 The trial court dismissed the officer s claims for invasion of privacy.1200 The Tenth Circuit affirmed, and ruled that intrusion was ba sed on how the station ob tained the information and not on what the station did with the information.1201 Additionally, the c ourt ruled that the station had not acted in a manner highly offens ive to a reasonable person by simply knocking on the officers front doors.1202 The officers would have had to prove that KOB-TV had tried to badger their way into the officers home, or th ey repeatedly approached [the officers],or obtained footage through their windo ws or other intrusive means.1203 A California appellate court also found no intr usive means when a repo rters filmed that a judge, considered a public official, outside of hi s home, and ruled that there were no grounds for an intrusion claim.1204 In Aisenson v. ABC a judge sued the broadcasting company after the broadcasters aired a series of ne ws reports on a recent opinion poll.1205 The opinion poll results showed that David Aisenson, the plaintiff judge, received the lowest ratings of the judges on the 198 Id. 199 Id. 200 Id. 201 Id. at 1217. 202 Id. 203 Id. at 1218. The court based this reasoning on the Re statement of Torts 652B cmt. d, which states: [T]here is no liability for knocking at the plaintiffs door, or calling him to the telephone on one occasion or even two or three, to demand payment of a debt. It is only when the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff, th at it becomes a substantial burden to his existence, that his privacy is invaded. RESTATEMENT (SECOND) TORTS 652B cmt. d. (2007). 204 Aisenson v. ABC, Inc., 269 Cal. Rptr. 379, 388 (Cal. Ct. App. 1990). 205 Id. at 281.

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177 Los Angeles Superior Court.1206 One of the reports used footag e of Aisenson as he walked from his house to his car, in a manner that Aisenson clai med made it appear as if he were a criminal or the subject of some ongoi ng criminal investigation.1207 Aisenson claimed that the filming of him walking to his car was unconsen ted, and therefore, an intrusion.1208 In deciding this case, the court reiterated the rule that in order for a defendant to be liable for intrusion, the intrusion had to be highly offensive to a reasonable person.1209 According to the court, a factor relevant to whet her an intrusion is highly offens ive to a reasonable person is the extent to which the person whose privacy is at issue voluntarily ente red the public sphere.1210 The court ruled that as long as news coverage did not extend beyond that necessary to protect the public interest, public officials and public figures were subject to news coverage.1211 When the legitimate public inte rest in the published informa tion is substantial, a much greater intrusion into an individuals privat e life will be sanctioned, especially if the individual willingly entered into the public sphere. Because of their public responsibilities, government officials and candidates for such office have almost always been considered the paradigm case of public figures w ho should be subject to the most thorough scrutiny.1212 The court found no invasion of privacy in ABCs filming of the judge while he was walking to his car. The court r easoned that there was no evidence to support a finding that ABCs method of newsgathering ex ceeded the publics interest in seeing a current videotape 206 Id. 207 Id. at 382. This clip was used as evidence for part of Aisensons other claims for defamation and false light. 208 Id. 209 Id. at 387. 210 Id. 211 Id. at 388. 212 Id. at 387-388. (Quoting Kapellas v. Kofman, 459 P.2d 912, 922-923 (Cal. 1969) (ruling that a newspapers articles on the children of a public official did not violate the childrens privacy).

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178 picture of an elected official.1213 ABC did not enter the judges home or come into physical contact with him or his family. The court found that Aisenson was in public view when he was filmed, therefore, there was no invasion of privacy.1214 Harassment Courts have found, however, intrusion by harassment, when the press has photographed public figures in public, famously in Galella v. Onassis .1215 Donald Galella was a free-lance photographer who made a living selling photographs he took of famous people.1216 Some of his most favorite subjects were Jacqueline Onassi s, the widow of President John F. Kennedy, and her two children, John and Caroline Kennedy.1217 Galella constantly followed the family for pictures, engaging in behaviors such as ente ring the childrens privat e schools and, using a powerboat to get pictures of the family while they were swimming.1218 In one instance, Galella jumped out in front of John, who was riding his bi ke in a park, causing secret service agents to accost and question him.1219 The police arrested Galella; he was acquitted of the charges.1220 After his acquittal, Galella filed suit against the secret service agent and Mrs. Onassis, for false arrest, malicious prosecution a nd interference with his business.1221 Onassis counterclaimed for damages related to Galellas invasion of her a nd her childrens privac y, and for an injunction 213 Id. at 388. 214 Id. 215 487 F.2d 986 (2d Cir. 1973). 216 Id. at 991. 217 Id. 218 Id. at 992. 219 Id. 220 Id. 221 Id.

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179 against any further harassment.1222 A court granted Onassis a tem porary restraining order against Galella, however, two months la ter, police charged Galella w ith violating the restraining order.1223 The court, therefore, issued a new rest raining order requiring that Galella remain 100 yards away from Onassis home and 50 ya rds away from Onassis and her children.1224 At trial, the court dismissed Galellas claims, and entered an injunction requiring that Galella discontinue any sureveillance of Onassis a nd her children, prohibiting Galella from using Onassis and her childrens names or pictures, and prohibiting Galella from contacting Onassis.1225 On appeal the Second Circuit affirmed the trial courts dismissal of Galellas claims against the secret service agents.1226 The court also found that Ga lella had intentionally harassed Onassis and her children and caused fear of physical contact in his frenzied attempts to get their pictures.1227 The court ruled, therefore, that Galell a had not successfully challenged the trial courts finding that he had acted tortiously.1228 The court noted that Onassis was a public figure, and consequently subject to news coverage.1229 According to the Sec ond Circuit, legitimate countervailing social needs may warrant some intrusion despite an i ndividuals reasonable expectation of privacy and freedom from harassment.1230 The court limited this exception, 222 Id. Onassis also pleaded for damages for assault and battery, intentional infliction of emotional distress, and harassment. Id. 223 Id. 224 Id. 225 Id. at 993. The limitations on how close Galella could come to Onassis and her children were relatively the same. Galella was not allowed within 100 yards of the Onassis home or school, with 75 yards of the children, or 50 yards of Onassis. Id. 226 Id. 227 Id. at 994. 228 Id. 229 Id. at 995. 230 Id.

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180 however, to intrusions that were no greater than [] necessary to protect the overriding public interest.1231 The court ruled that Galellas conduct went beyond newsgathering in the public interest, and rejected Galellas argumen t for protection under the First Amendment.1232 The court stated that Galella: [S]ets up the First Amendment as a wall of immunity protecting newsmen from any liability for their conduct wh ile gathering news. There is no such scope to the First Amendment right. Crimes and torts committed in news gathering [sic] are not protected. There is no threat to a free press in re quiring its agents to act within the law.1233 Galella did not, however, follow the rules of the re straining order, and Ona ssis filed an action in court to find Galella in contempt.1234 The federal district court found Galella in contempt, and citing the Second Circuits previous ruling, ruled that Onassis had the right to be left alone.1235 A federal district court in California, however, found no intrusion where a reporter contacted a prisoners relatives and friends while seeking information for a story.1236 In a widely publicized trial, Stan Rifkin was convicted of wi re fraud and sentenced to federal prison for eight years.1237 A reporter contacted Rifkins friends, ex-wif e and prison officials to gather information about Rifkin and his crime.1238 The reporter, falsely, told both Rifkins friends and ex-wife that Rifkin had given him permission to speak with them.1239 Rifkin claimed that by doing this, the 231 Id. 232 Id. 233 Id. at 995-996 (citations omitted). The court, though upholding injunctive relief against Galella, did find the language of the restraining order overbroad, and modified it to ensure its narrow tailoring to meet Onassis and her childrens privacy interest. See Id. at 998. 234 Galella v. Onassis, 533 F. Supp. 1076 (S.D.N.Y. 1982). 235 Id. at 1106. 236 Rifkin v. Esquire Publg Inc., 1982 U.S. Dist. LEXIS 18405, *9 (C.D. Cal. 1982). 237 Id. at *1. 238 Id. at *5-6. 239 Id. at *5.

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181 reporter invaded his privacy and therefore sought damages for the invasion, and an injunction on the publication of the article based on this information the reporter gathered.1240 The court ruled that the re porters contacting th ird parties in no way (physically or otherwise) intruded upon plaintiffs solitude or seclusion.1241 Liability for intrusion would only have existed if the reporter ha d gone beyond the limits of decency.1242 The court ruled that the reporters attempts to gather information from th ird parties or to elicit the assistance of third parties in contacting plaintiff, even if pursued using subterfuge and fraud, cannot constitute an intrusion upon plaintiffs solitude or seclusion.1243 The court noted, however, that an unreasonably intrusive investigation [might] constitute a violation of a persons right to privacy; in this case the court fou nd no intrusive investigation.1244 The federal district court in Maine also found no intrusive inves tigation and dismissed Henry Dempseys motion to amend a complaint against a reporter for The National Enquirer .1245 At issue was a National Enquirer article that detailed Dempse ys nearly falling out of an airplane, surviving death by holding on to the planes boarding ladder.1246 Dempsey based his intrusion claim on the reporters repeated atte mpts to interview and photograph him. The 240 Id. at *1. 241 Id. at *8. 242 Id. at *8-9. (citing Gill v. Hearst Publishing Co ., 253 P.2d 441 (Cal. 1953). 243 Id. at *9. 244 Id. at *9. The court cites Noble v. Sears Roebuck and Co., 109 Cal. Rptr. 269 (Cal. Ct. App. 1973), in support of this ruling. In Noble a department store hired private detectives to investigation a womans personal injury claim against it. One detective entered the womans hospital room and by deception, gained the address of a man who had accompanied the woman to the department store. Id. at 270-271. In addition to holding the department store could be liable for intrusion by the detective, the California appe llate court agreed with the plaintiff that damages for an unreasonably intrusive investigation were recoverable. Id. at 272. 245 Dempsey v. The Natl Enquirer, 702 F. Supp. 927, 931 (D. Me. 1988). Dempseys other claims included appropriation, false light, and intentional infliction of emotional distress. Id. at 929. 246 Id. at 928 fn.1.

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182 reporter went to Dempseys house and asked for an interview; she drove by his house for almost an hour when he refused, and returned to Dempseys house two days later, where she was again refused.1247 The reporter also followed Dempsey to a restaurant attempting to get an interview and a photograph, and only left the restaurant when Dempsey threatened to call the manager.1248 The court found, however, that none of the reporters conduct rose to the level of intrusion upon seclusion.1249 The court reasoned that the reporter never entered Dempseys house.1250 Further, the reporters presence in th e restaurant was not intrusive because the restaurant was open to the public.1251 The court also found that th e reporters attempts to take Dempseys picture was not actionable, because Dempsey was in a public place.1252 The court ruled that although the reporters actions were annoying, they [could not] reasonably be seen as highly offensive.1253 Dempseys claim against the magazi ne for intrusion based on a reporters repeated attempts to photograph him and obtain and interview, therefore, failed. In contrast to the Dempsey ruling, a federal court in Pe nnsylvania ruled that a camera crews repeated attempts to interview and film a family might sustain a claim for invasion of privacy by intrusion. In Wolfson v. Lewis ,1254 journalists from Inside Edition while attempting to investigate a story on the salaries paid to U. S. Healthcare executives, among other things, 247 Id. at 931. 248 Id. 249 Id. The court based this on the Restatement co nception of intrusion and a Maine state case Nelson v. Maine Times, 373 A.2d 121(Me. 1977) in which the Maine Supreme Court expressly adopted the Restatement approach to intrusion. Id. at 930. 250 Id. at 931. 251 Id. 252 Id. 253 Id. 254 924 F. Supp. 1413 (E.D. Pa. 1996).

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183 repeatedly requested interviews with an executive, stationed a news van for surveillance of the executive and his wife as they left on an airplane, conducted surveillance and followed the daughter and son-in-law of the executive, the Wolfsons, and am bushed the executives son-inlaw in attempt to get an interview.1255 The court found that the executives son-in-law had sufficient evidence to prove that the journa lists intruded upon his familys seclusion.1256 The court determined that the journalists had engag[ ed] in a course of conduct apparently designed to hound, harass, intimidate and frighten, the family.1257 The court also determined that the journalists did not have legi timate purpose for harassing the fa mily, but were only attempting to entertain for their television program.1258 Further, the court decide d that the First Amendment did not protect the journalists activities, and those activities were not routine newsgathering. The First Amendment protects routine, lawful newsgathering. A r easonable jury would likely conclude that it is difficult to understand how hounding, harassing, and ambushing the Wolfsons would advance the newsworthy goa l of exposing the high salaries paid to U.S. Healthcare executives or how such c onduct would advance the fundamental policies underlying the First Amendment which include providing information to enable members of society to cope with the exigencies of their period.1259 The court ruled that a cour se of repeated harassment that amounts to hounding and becomes a substantial burden to a person may constitute an invasion.1260 The court did, however, establish that a story on the healthcare ex ecutives salaries might serve the values that 255 Id. at 1423-1432. 256 Id. at 1432. 257 Id. 258 Id. 259 Id. at 1433. (quoting Curtis Publg Co. v. Butts 388 U.S. 130 (1967)). 260 Id.

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184 underlie the First Amendment, because the press had the right to inform the public about the organizations that provide health insurance to millions of Americans.1261 In Public Generally, courts have not found intrusion wh ere journalists have gathered news in a public setting. For example, in Wilkins v NBC, Inc ., a California appellate court ruled that two businessmen had no expectation of privacy in a conversation that took place during a lunch meeting held on the outdoor patio of a restaurant.1262 Wilkins arose from a Dateline NBC investigation of the p ay-per-call industry.1263 Two producers for NBC contacted SimTel, a pay-per-call company, in response to a national advertisement, and arranged a lunch meeting with company representatives.1264 The producers brought two add itional people to the meeting that took place on the patio of a restaurant; the company representa tives did not inquire into the identities of two additional people.1265 During the meeting the SimTel representatives explained how their pay-per-call system wo rked; the producers recorded the meeting using hidden cameras and later broadcast excerpts from the recording.1266 The California appellate c ourt found that the journalists had not intruded on the businessmens seclusion because the men freel y spoke about their bus iness in a public place.1267 The men had the meeting on the patio of a public restaurant. They al so spoke about their 261 Id. at 1416. 262 Id. at 336. 263 Id. at 332. Pay-per-call is the practi ce of charging for services on so-cal led toll-free 800 lines, often without the knowledge of the persona billed for the services. Id. 264 Id. 265 Id. 266 Id. 267 Id. at 336.

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185 telephone business even though two unknown people attended the meeting.1268 The court noted that the NBC journalists did not intrude into the mens pr ivate lives or homes; NBC photographed the two men in a public place and ta ped their conversations which were about business not personal matters. There was no intr usion into a private pl ace, conversation or matter.1269 An individuals presence at a restaurant does not, how ever, automatically prohibit a finding of intrusion. In Stressman v. American Black Hawk Broadcasting Co .,1270 the Iowa Supreme Court ruled that film[i ng] a person in a private dining room might conceivably be a highly offensive intrusion upon that persons seclusion.1271 Theresa Stressman sued American Black Hawk Broadcasting after she asked a reporter not to record her as she was dining at a restaurant. The reporter filmed her, and the film was used in a later broadcast.1272 Stressman argued that the filming was an unreasonable interference wi th her right in not having her affairs known to others or her picture show n on television.1273 Black Hawk countered that Stressman had no grounds for intr usion because she was eating in a restaurant open to the public.1274 The court determined that although it did not have all th e facts, Stressman 268 Id. 269 Id. (citing Shulman, 18 Ca. 4th at 231). 270 416 N.W.2d 685 (Iowa 1987). 271 Id. at 687. 272 Id. at 685. 273 Id. at 687. 274 Id.

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186 could possibly have been secluded in the restaurant.1275 The court found that if Stressman were in a private dining room she could possibly have the grounds for intrusion against the station.1276 Similarly, a court in Massachusetts ruled that a man might have an intrusion claim even though a news station filmed him while in he was in public.1277 In Cook v. WHDH-TV, Albert Cook a Massachusetts business owner, sued a broadcast station after a reporter filmed him while he was in a Burger King drive-thru.1278 The journalist, conducti ng an investigation of Cooks business dealings, confronted Cook on camera.1279 Although Cook twice pushed the camera away, and refused to answer any of the reporters questions, the reporter continued filming.1280 The reporter also leaned into Cooks car window and pressed a microphone close to Cooks face.1281 Cook sued for invasion of privacy ba sed on Massachusetts General Laws chap. 214 1B, which provides that a person shall have a right against unreas onable, substantial or serious interference with his privacy.1282 The court determined that in order to prove an invasion of privacy under the Massachusetts statute, Cook would have to de monstrate that the defendants conduct was unreasonable or unjustified and that the conduct amount ed to a serious or s ubstantial interference 275 Id. 276 Id. 277 Cook v. WHDH-TV, Inc., 1998 Mass. Super. LEXIS 739, *17 (Mass. Super. Ct. 1998). 278 Id. at *6. 279 Id. 280 Id. 281 Id. 282 MASS. GEN. LAWS ch. 214 1B (1998). Cook also sued for defamation, assault, and unfair and deceptive trade practices. 1998 Mass. Super. LEXIS 739 *1.

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187 with his privacy.1283 The court further noted that in or der to determine whether the reporter violated the statute, the court had to balance pr ivacy interest with the interest served by the disclosure.1284 Although recognizing that us ually a plaintiff claiming to have had their seclusion intruded upon while in public wa s said to have assumed the risk of being observed, the court ruled that Cooks claim for intrusion should be allowed.1285 Using the balancing test, the court found that there was a disputed issu e of fact as to whether the inte rest served by the intrusion of the defendants is outweighed by his interest in his privacy.1286 According to the court, at trial the jury should consider the reporters motive, whether Cook had a reasonable expectation of privacy while in the drive-thru, and whether C ook consented to the intr usion. Additionally the court stated that the jury might want to consider the importance to the public of the information gained by the intrusion.1287 [W]hile the information disclosed by the tele vision news story may have been of some importance to the public, the confrontation of the plaintiff at Burger King and the information gained therein was of negligib le value to the stor y. A jury could well conclude that the design of the defendants was to make Mr. Cook look guilty and add to the sensationalism of the story.1288 The court concluded, therefore, that C ooks intrusion claim should go to trial.1289 A District of Columbia Superi or Court ruled, however, that the administrator and staff of a public school could not possibly establish an intrusion claim ag ainst a reporter who entered the 283 Id. at *14. 284 Id. 285 Id. at *16-17. 286 Id. *17. 287 Id. 288 Id. at *17-18. 289 Id. at *18. Accord with Larsen v. Philadelphia Newspapers, Inc., 543 A.2d 1181 (Pa. Super. Ct. 1988).

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188 school because the reporter entered public property.1290 In The Marcus Garvey Charter School v. The Washington Times Corporation Susan Ferrechio, a reporter for The Washington Times went to the Marcus Garvey Charter Schools office attempting to interview the schools principal. When the principal arrived she a ngrily declined to be interviewed and grabbed Ferrechios notebook; other school staff and students then physic ally assaulted Ferrechio and removed her from the school.1291 Ferrechio called her editor, who then called the police; the editor also sent another reporter and a phot ographer to the school to meet Ferrechio.1292 When the police arrived, the officers, along with Ferrechio and the two other Washington Times reporters, entered the school. The principal refused to return th e notebook, then the principal and a staff member assaulted police.1293 The principal and several me mbers of the school staff were charged with assault and taking property.1294 The principal and staff members claimed that Ferrechio, and the other reporters, intruded upon their seclusion by entering the school without permission.1295 A judge at a pretrial hearing ruled, however, that the schools office was a public area.1296 The Superior Court found that Ferrechio and the other reporters only entered into the public areas of the school, places wheremembers of the public with a legitimat e basis for visiting are normally permitted to 290 The Marcus Garvey Chart. Sch. v. The Wash. Times Corp., 27 Media L. Rep. (BNA) 1225, 1229-1230 (D.C. Super. Ct. 1998). 291 Id. at 1227. 292 Id. 293 Id. 294 Id. 295 Id. at 1228. 296 Id. at 1229. Plaintiffs are estopped form arguing the issu e of the public nature of the schools front hallway for main office because that issue was actually litigated in the pretrial hearing and Judge Morrisons determination was essential to the judgment that plaintiffs were criminally liable for their assault on the police officers. Id.

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189 enter.1297 The court rejected the principals argum ent that the policy of the school district excluded the press from the school, and that she a nd the staff, therefore had an expectation of privacy.1298 The court found that the school district policy only prohibited school employees from giving interviews without permission, a nd did not exclude the media from the schools.1299 The court ruled that the principal and the school staff had no expectation of privacy.1300 The court also found that the Ferrech ios entrance into the school was not highly offensive to a reasonable person.1301 Because the principal could not prove her intrusion claim, the court granted summary judgment in favor of The Washington Times .1302 Trespass Trespass is the non-consensual en try upon the property of another.1303 A trespass plaintiff must prove ownership of the property. In Stith v. Cosmos Broadcasting, Inc. ,1304 for example, a Kentucky trial court ruled that a horse trainer had no claim against Inside Edition because he did not own the property on which the media entered.1305 Inside Edition filmed Kevin Stith, a horse trainer, as he explained the use of chains in horse training.1306 The filming took place at The 297 Id. 298 Id. The principal based this argument on Pearson v. Dodd 410 F.2d 701 (D.C. Cir. 1969), in which the federal court of appeals ruled that intrusion might extend into sph eres from which an ordinary man in a plaintiffs position could reasonably expect that the particular defendant should be excluded. Id at 705. 299 27 Media L. Rep. (BNA) at 1229. 300 Id. 301 Id. at 1230. 302 Id. 303 RESTATEMENT (SECOND) OF TORTS 158 (1965). 304 25 Media L. Rep. (BNA) 1151 (Ky. Cir. Ct. 1996). 305 Id. at 1156. 306 Id. at 1152.

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190 Celebration, a place were horse shows were held.1307 Inside Edition then used the footage in a show about horse abuse.1308 The court ruled that Stith was an invitee of The Celebration and not the owner, or constructive owner, of the pr operty. He therefore had no standing to claim trespass.1309 A trespass plaintiff need not prove that the defendant committed some harm during the trespass. In La Luna Enterprises, Inc. v, CBS Corp .,1310 a federal district court ruled that club could receive nominal damages where there was no actual damage from CBSs trespass.1311 CBS obtained the clubs permission to fi lm its cabaret show to use in a broadcast on tourism. Instead the station used the film footage as background for a show on the Russian Mafia.1312 La Luna claimed CBS trespassed by fraudulently obt aining permission to film at the club.1313 Denying CBSs motion to dismiss La Lunas trespass claim, the court ruled that under the law, the club could sue for nominal damages.1314 A defense to a trespass claim is consent to entry onto the property. Consent is not, however, an absolute defense to trespass. The next section details the press use of consent as a defense and what vitiates consent as a defense. 307 Id. 308 Id. 309 Id. at 1156. 310 74 F. Supp. 2d 384 (S.D.N.Y. 1999). 311 Id. at 393. 312 Id. at 387. 313 Id. 314 Id. at 393.

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191 Consent Lal v. CBS, Inc .1315 arose after Amrit Lal, a college professor, sued a college newspaper for libel after it publishe d a story concerning the substandard conditions in which he kept his rental properties.1316 A reporter for a local broadcast station assigned to cover the lawsuit interviewed Lal and the newspaper staff. The repor ter also went to one of Lals properties to interview the tenants.1317 The tenants allowed the reporter into the house where she filmed the rental conditions. The film footage was used as pa rt of a report aired on the station later that evening.1318 After the broadcast, Lal sued th e station for trespass and defamation.1319 The court granted CBS summary judgment on th e trespass claim, finding that the tenants had consented to the reporters en try onto the property. It is elementary that an owner who is not in possession cannot maintain an action for trespass absent an injury to his reversion.1320 The federal appellate court affirm ed this ruling, finding that the tenant had granted the reporter permission to enter the house and that there wa s no damage to the prope rty as a result of the entry.1321 In Machleder v. Diaz, the federal court ruled that the business owner implied consent to a camera crew entering the business office.1322 The court found that the reporter had not forced his 315 551 F. Supp. 356 (E.D. Pa. 1982). 316 Id. at 358-359. 317 Id. at 359. 318 Id. 319 Id. at 360. 320 Id. at 364. 321 Lal v. CBS, Inc., 726 F.2d 99, 100 (3d. Cir. 1984). The appellate court also ruled that even in the event that the tenants signed a lease prohibiting the admission of the media onto the property, Lal would not have had a basis for trespass. Id. 322 538 F. Supp. 1364, 1375. For the facts of Machleder see supra texts accompanying notes ___.

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192 way into the building; nor were there signs warn ing the reporter to keep off of the property.1323 The court also found that Bruce Machleder, the son of the company president, told the reporter to go to the business office. According to the cour t, by neglecting to tell the reporter to the leave the property and by directing the re porter to the office, the younge r Machleder implied consent to the media remaining at the building.1324 Further, although Irving Machleder did not want to be filmed, he did not tell the repor ter to leave the property; he still answered the reporters questions.1325 The court ruled that this also implied consent for the reporter to remain at the building and therefore vitiate d Machleders trespass claim.1326 A Minnesota appellate court ruled, however, th at consent to enter a persons property for one purpose did not extend consent to enter for another purpose.1327 In Copeland v. Hubbard Broadcasting, a couple sued a news station after one of the stations reporters posed as a veterinary student.1328 The reporter was conducting a hi dden camera investigation of a veterinarian, with whom she had gotten an intern ship. The veterinarian had an appointment to examine the Copelands cat, and received permis sion to bring the vet st udent along to shadow him.1329 The station broadcast the footag e taken inside of the Copeland home.1330 The court determined that under Minnesot a law a person who has permission to enter property can become a trespasser by m oving beyond the possessors invitation or 323 Id. 324 Id. 325 Id. 326 Id. 327 Copeland v. Hubbard Broad., Inc, 526 N.W.2d 402 (Minn. App. Ct. 1995). 328 Id. at 404. 329 Id. 330 Id.

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193 permission.1331 An individual could exceed perm ission by doing more than going beyond geographic bounds.1332 The court noted Baugh v. CBS ,1333 a case in which a woman sued a broadcaster for trespass after she granted permission to film in her house, so long as she was not filmed.1334 In that case, the court ruled that the womans consent was not exceeded because the woman had agreed to the videotaping.1335 Distinguishing Baugh, the Copeland court found that the Copelands had not given the reporter the permission to videot ape while in their home; the record [] indicates that consent was given only to allow a veterina ry student to accompany the veterinarian.1336 The court, therefore, denied the stations motion for summary judgment. A mere fourteen days before th e Minnesota appellate court decided Copeland, the Seventh Circuit Court of Appeal decided Desnick v. ABC holding that there was no trespass when reporters, posing as eye clin ic patients, secretly recorded their interactions with doctors inside an eye clinic.1337 Although acknowledging that there was no journalists privilege to trespass, and that there was no implied cons ent when express consent was granted through misrepresentation, the court found th at in some circumstances cons ent is considered valid even when procured by fraud. There must be something to this surprising resu lt. Without it a restaurant critic could not conceal his identity when he ordered a meal, or a browser pretend to be interested in merchandise that he could not afford to buy. Dinner guests would be trespassers if they were false friends who never would have been invited had the host known their true character, and a consumer who in an effort to bargain down an automobile dealer falsely 331 Id. 332 Id. at 405. 333 828 F. supp. 745 (N.D. Cal. 1993). 334 Id. at 752. 335 Id. at 756. 336 526 N.W.2d at 405. 337 44 F.3d 1345, 1352-1353. For the facts of Desnick see supra text accompanying notes___.

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194 claimed to be able to buy the same car elsewh ere at a lower price would be a trespasser in the dealers showroom. Some of these might be classified as privileged trespasses, designed to promote competition. Others mi ght be thought justified by some kind of implied consentthe restaurant critic for example might point by way of analogy to the use of the fair use defense by book reviewer s charged with copyri ght infringement and argue that the restaurant indus try as a whole would be injure d if restaurants could exclude critics. But most such efforts at rationaliza tion would be little bette r than evasions. The fact is the consent to an en try is often given legal eff ect even though the entrant has intentions that if known to the owner of the property w ould cause him for perfectly understandable and generally et hical or at least lawful reasons to revoke his consent.1338 The court also noted the law s willingness to give effect to consent procured by fraud in areas other than trespass such as battery.1339 To distinguish between cases of valid consent and invalid consent, the court had to examine the interests trespass supposedly protected: the inviolability of the persons property.1340 Using this conception of the interests trespass protected, the court reasoned that ABCs test patients did not trespa ss because they did not infringe on any of the interests protected by trespass.1341 The clinics were open to the public, and videotaped physicians engaged in prof essional, not personal, communications.1342 Further, the patients did not disrupt the clinics.1343 The court found that in th e instant case, unlike in Dietemann involved a business.1344 Further, the court conceptualized the test patien ts as analogous to other testers who perform a public service.1345 338 Id. at 1351. 339 Id. at 1352. The court gave the Restatement example of a man who promised a woman $100 to have sex with him. Upon completion of the act, the man gave the woman a counterfeit $100 bill. That man was not guilty of battery. Id. (citing RESTATEMENT (SECOND) of TORTS 892B, illustration 9 (1979)). 340 Id. 341 Id. 342 Id. 343 Id. 344 Id at 1353.

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195 Testers who pose as prospective home buyers in order to gather evidence of housing discrimination are not trespassers even if they are private pe rsons not acting under color of law. The situation of [ABCs] testers is analogous. Like testers seeking evidence of violation of antidiscrimination laws, the defendants test patients gained entry into the plaintiffs premises by misrepresenting their purposes (m ore precisely by a misleading omission to disclose those purposes). But th e entry was not invasive in the sense of infringing the kind of interest of the plaintiffs that the law of trespass protects; it was not an interference with the owne rship or possession of land.1346 The court ruled, therefore, in favor of ABC. A federal district court in North Carolin a declined, however, to apply the Seventh Circuits ruling in Desnick to a case involving reporters conducting a hidden camera investigation while acting as employees of a major supermarket.1347 Food Lion v. ABC arose after two reporters for ABCs PrimeTime Live gained employment, by falsifying parts of their employment applications, in the deli section of two differe nt Food Lion grocery stores.1348 While working the stores, both reporters secretly r ecorded hidden camera f ootage of meat handling practices. Food Lion sued ABC for trespass and fraud, among other things.1349 ABC moved for summary judgment on these claims. The district court examined North a nd South Carolinas approach to allowing misrepresentation to vitiate consent and f ound that those states followed 892B of the Restatement (Second) of Torts: [I]f the person consenting to the conduct of a nother is induced to c onsent by a substantial mistake concerning the nature of the invasion of his interest or the extent of the harm to be 345 Id. 346 Id. 347 Food Lion, Inc., v. Capital Cities/ABC, Inc., 951 F. Supp. 1217 (M.D.N.C 1996). 348 Id. at 1218. 349 Id. Food Lion also pleaded claims for ci vil conspiracy and negligent supervision. Id.

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196 expected from it and the mistake is known to the other or is induced by the others misrepresentations, the consent is not eff ective for the unexpected invasion or harm.1350 The court reasoned, therefore, th at a reasonable jury could find that the misrepresentations by ABC reporters could have cause d Food Lion to give consent.1351 Expressly declining to rely on Desnick, the court reasoned that the Desnick court did not rule that fraud could never negate consent.1352 The court found that the Desnick court also based its ruling on 892B of the Restatement, the same section set out above for the proposition that fraud can negate consent.1353 Further, the court ruled that unlike the test patients in Desnick who entered a clinic opened to anyone, the reporters in Food Lion used fraud to enter portions of the store that were not open to the general public.1354 Additionally, in Desnick there was no type of theft, whereas here the Food Lion court found that Defendants did gain fr om the entry of [the reporters] what they otherwise would not have had, a story.1355 In ruling that consent could be negated by exceeding the scope of the consent, the court relied on Copeland and found that ABC could not be granted summary judgment.1356 Using the Copeland decision, the court found that whether a po ssessor of land has given consent for entry 350 RESTATEMENT (SECOND) of TORTS 892B(2) (1979). 351 951 F. Supp. at 1222. 352 Id. 353 Id. 354 Id. at 1223. 355 Id. 356 Id.

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197 is, when disputed, a factual issue.1357 The court also found that it was a factual issue whether the reporters should be considered Food Lion employees while they were filming inside the store.1358 A jury found ABC liable for trespass and awarded Food Lion significant damages.1359 The district denied ABCs motion for a judgment as a matter of law on Food Lions trespass claim.1360 Further, the court ruled that the pres s is not free to violate laws of general applicability in order to reach its ultimate goals.1361 Although recognizing consent as a defense to trespass, the Fourth Circuit, on appeal, found that consent to enter property can be canceled out by a wrongful act.1362 Using the Desnick courts holding that the test patients who mi srepresented their purpose in order to enter places open to the general public did not tres pass, the Fourth Circ uit found that the ABC reporters could not be held to have trespassed because of misrepresentations on their job applications.1363 The court noted, however, that the jury found that the reporters committed trespass by breaching their duty of loyalty to Food Lion, by conducting the hidden camera investigation.1364 The court affirmed this basis for finding that th e reporters had trespassed because the breach of duty of loyaltytriggered by the filming in non -public areas, which wa s adverse to Food Lion 357 Id. at 1224 (quoting Copeland 526 N.W.2d at 405). 358 Id. 359 Food Lion, Inc. v, Capital Cities/ABC, Inc., 984 F. Supp. 923, 927 (M.D.N.C. 1997) The Jury awarded Food Lion $5,545,750 in total damages. 360 Id. at 929. 361 Id. Accord with Shiffman v. Empire Blue Cross & Blue Shield 681 N.Y.S.2d 511 (N.Y. App. Div. 1998). 362 Food Lion, Inc. v. Capital Citie s/ABC, Inc., 194 F.3d 505, 517 (4th Cir. 1999). 363 Id. at 518. 364 Id.

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198 was a wrongful act in excess of [the reporters] authority to enter Food Lions premises as employees.1365 The court, therefore, su stained the jurys verdict.1366 Like the district court in Food Lion, a federal district court in Arizona expressly rejected Desnick in deciding that ABC reporters had trespassed when they misrepresented their identities in order to get a tour of, and secretly record, a laboratory.1367 The court declined to accept the Desnick formula for determining whether a plainti ffs interest in ownership or possession of land has been harmed for four reasons. First, the [ Desnick] court attempt[ed] to distinguish cases reaching different result s with factual distinctions.1368 According to the Med Lab court, the Desnick court allowed intrusion analysis to affect its trespass analysis.1369 Secondly, and similar to the first reason, the cases upon whic h the Seventh Circuit reliesdo not all involve trespass claims.1370 According to the Med Lab court, this indicates that the Seventh Circuits decision was based more on theory than settled law.1371 The court also noted that the Desnick court did not explain how the cited examples in which fraudulently induced consent is deemed ineffectual differ from those in wh ich consent is found to be valid.1372 Finally, the court ruled that the conclusions reached in Desnick [were] not supported by the la w in Arizona or the Ninth Circuit.1373 365 Id. 366 Id. at 519. 367 Med. Lab ., 30 F. Supp. 2d 1182, 1204. For facts of Med Lab see supra text accompanying notes 143-157. 368 Id. at 1202. 369 Id. 370 Id. at 1203. 371 Id. 372 Id. 373 Id.

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199 The court determined that 892B of the Restatement was the applicable law.1374 Reasoning that Devarajs consent to give the reporters a tour of the lab was based on the reporters misrepresentations, th e court found that Mr. Devaraj may have consented to the presence of [the reporters], but he di d not consent to the use of the cameras.1375 The court granted ABCs motion for summary judgment on the trespass claim, however, finding that any damages caused by the publication of the videotaped meeting were not proximately caused by the trespass and Plaintiffs do not claim to have incurred any ot her damages as a result of the trespass.1376 Unlike the Med Lab court, a Michigan appellate court followed the Desnick opinion in deciding that a broadcast station had not trespassed wh ile conducting a hidden camera investigation of an autoshop.1377 In American Transmission v. Channel 7 of Detroit a news station conducted a hidden camera investiga tion of various transmission repair shops.1378 A reporter for the station drove to the various s hops and complained that her car was making loud noises. The reporter would film the insp ection of the car with a hidden camera.1379 Footage filmed at American Transmission was used as part of a consumer advoc acy section of a news broadcast. American Transmission sued claimi ng that the reporter tres passed by concealing her identity to gain entry into the shop.1380 374 Id. 375 Id. at 1204. 376 Id. 377 Am. Trans., Inc. v, Channel 7 of Detroit, Inc., 609 N.W.2d 607 (Mich. App. Ct. 2000). 378 Id. at 609. 379 Id. 380 Id. at 610.

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200 Following Desnick, the Michigan appellate court he ld that even though the reporter misrepresented her identity, the transmission shops consent was still valid because she did not invade any of the specific interests relating to the peaceable possession of land that the tort of trespass seeks to protect.1381 The reporter entered an auto repair shop open to anyone and only recorded the shop employees engaging in a professional discussion with her.1382 Further, the reporter did not disrupt the operation of the transm ission shop. The court, therefore, affirmed the trial courts grant of summary judgment to the station.1383 In contrast, a federal district court in Florida distinguished Desnick finding that a reporter, who obtained employment with a magazi ne sales company, and who was able to access areas of the company not open to the public, may have trespassed.1384 In Pitts Sales, Inc. v. King World Productions the owners of a magazine sales co mpany sued King World Productions after a story aired on Inside Edition examining the business practices of traveling magazine sales companies. A producer for Inside Edition secured a job with Pitts Sales by misrepresenting personal information on the job application, and wh ile working for the company, he recorded the day-to-day activities of the magazine sale s staff he observed with a hidden camera and microphone.1385 Portions of the film footage and re cordings that the producer acquired while working for the magazine sales company were used during a news report that showed the treatment, abuse, and inadequate supe rvision given to young sales agents. 381 Id. at 614. 382 Id. 383 Id. 384 Pitts Sales, Inc v. King World Prod., In c., 383 F. Supp. 2d 1354 (S.D. Fla. 2005). 385 Id. at 1356.

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201 Pitts Sales argued that the producer trespasse d when he entered hotels, conference rooms and company vehicles while filming with a hidden camera.1386 In deciding this case, the court examined Desnick Food Lion and Med Lab. The court distinguished the Med Lab grant of summary judgment to the press on the issue of da mages because in this case Pitts Sales sought nominal damages.1387 The court further distinguished Desnick because the Inside Edition producer was able to access non-public areas.1388 The court accepted the Food Lion court sending the trespass claim to a ju ry, and concluded, a trier of f act must determine whether the acts of [the producer] exceed[ed], or are in conflict with, the purposes for which such consent was given.1389 Trespass and the First Amendment For the most part, trespass is a strict liab ility tort, meaning courts only consider whether the individual entered the property of anot her without permission, without exploring the trespassers intent. Some courts have, however examined intent when the press has been accused of trespass. In Costlow v. Cusimano ,1390 for example, a New York appellate court ruled that a family had no cause of action for trespa ss against a reporter because (1) the sole motivation for the damaging acts was not malicious intent to injure the plaintiffs; and (2) the constitutionally protected right to publish articles on subjects within the area of public concern affords a clear legal justification for [the journalists] acts.1391 Frederick Cusimano, a journalist, 386 Id. at 1365. 387 Id. at 1366. 388 Id. at 1367. 389 Id. 390 311 N.Y.S.2d 92 (N.Y. App. Div. 1970). 391 Id. at 95-96.

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202 entered the Costlows residence, after the Costlows young children suffocated while playing in a refrigerator.1392 Cusimano took pictures of both the Co stlow house and the dead children and later published these photographs.1393 The Costlows claimed that Cusimano trespassed by entering their premises to take photographs; they also claimed invasion of privacy, intentional infliction of emotional distre ss and, the prima facie tort.1394 The court ruled that the Costlows trespass claim and their intentional infliction of emotional distress claim were insufficient for the same reason.1395 They were insufficient because the evidence did not show that Cusima no acted maliciously and with the single-minded purpose to shame or intentionally harm the Costlows.1396 Cusimano was acting under the protection of the constitutional guarantee of free dom of speech and press, and the court found no precedent in which intentional infliction of emotional distress was allowed against someone exercising their cons titutional rights.1397 The court also found that the Costlows were suing for damages that were not recoverable under a theory of trespass. A lthough a cause of action for tr espass could be established upon the fact of Cusimanos entering upon plaintiffs property, unless that entr y was justified by his status as a radio station employee investigating the death of two ch ildren, that cause of action has 392 Id. at 93. 393 Id. 394 Id. at 94. Prima facie tort is defined as, An unjustified, intentional infliction of harm on another person, resulting in damages, by one or more acts that would otherwise be lawful. BLACKS LAW DICTIONARY 713 (2d ed. 2001). 395 Id. at 95. 396 Id. at 96. The court found that the Costlows pleaded that Cusimano acted maliciously and intentionally to hold the plaintiffs up to public shame and to cause anguish and shock; however, [the Costlows] also allege[d] that Cusimano published and exhibited his article both for financial profit and to enhance his professional reputation. Id. 397 Id.

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203 not been well pleaded.1398 The court ruled that trespass dama ges were limited to consequences flowing from the interference wi th possession, and not for conse quences only indirectly related to the trespass.1399 The reporter could have been liable for any physical harm to the plaintiff under a theory of trespass, but not for th e psychic harm of emotional distress. Another New York appellate court has held, however, that a news networks intent to exercise its First Amendment rights di d not prohibit liability for trespass.1400 In Le Mistral v. CBS a news crew entered and filmed in a restau rant that had been cited for health code violations.1401 The manager of the resident asked the crew to leave, but the crew was able to film at the restaurant for a significant amount of time.1402 The restaurant sued for trespass, and a jury awarded the restaurant both compensatory and punitive damages.1403 The trial court affirmed the jurys trespass verdict, but set aside the damage award. The appellate court found that the trial court set aside the damage award because evidence as to CBSs motives for filming in the restaurant was excluded from testimony.1404 The award of punitive damages depended on a finding that CBS acted with evil or wrongful motive, therefore CBS had a right to explain its motive at retrial.1405 CBSs motive for entering the restaurant did not, however, figure into whether the journalists were found to have 398 Id. at 97. 399 Id. [D]amages for trespass are limited to consequences fl owing from the interference with possession and not for separable acts more properly allocated under other categories of liability. Id 400 Le Mistral, Inc. v. CBS, 402 N. Y.S.2d 815 (N.Y. App. Div. 1978). 401 Id. at 816. 402 Id. 403 Id. 404 Id. at 817. 405 Id. at 817-818.

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204 trespassed, nor did CBSs argument that its jour nalists were exercising their First Amendment rights. The court found that the First Amen dment did not outweigh other personal rights.1406 This court recognizes that the exercise of the right of free speech and free press demands and even mandates the observance of the co equal duty not to abuse such right, but to utilize it with right reason and dignity. Vain lip service to duties in a vacuous reality wherein rights exist, sovere ign and independent of any bala ncing moral or social factor, creates a semantical mockery of the very foundation of our laws and legal system.1407 The U.S. Supreme Court has held, however, that the First Amendment demanded that a broadcaster be allowed to publish information obtained by trespass.1408 In CBS v. Davis, a South Dakota trial court placed an injunction on CBS, pr ohibiting it from airing footage it obtained by outfitting a meat-packing plant employee with a hidden camera.1409 The meat-packing plant sued to prevent CBS from using the footage, claiming trespass, breach of loyalty and trade secret violations.1410 Finding that CBSs publication of the f ootage could result in a significant portion of the national chains refusing to purchase beef from the plant, the trial court entered a preliminary injunction.1411 The trial court also ruled that CBS obtained the footage through calculated misdeeds, and that the First Amendm ents protection against prior restraints was improper.1412 The South Dakota Supreme Court declined to give CBS a stay of the injunction.1413 406 Id. at 817. 407 Id. (quoting Bavarian Motor Works v. Manchester 61 Misc.2d 309, 311(N.Y. Sup. Ct. 1969)(holding that a corporation suing for libel did not have to plead f acts upon which its claim for actual malice was based)). 408 CBS Inc. v. Davis, 510 U.S. 1315, 1317 (1994). 409 Id. at 1315-1316. 410 Id. at 1316. 411 Id. at 1316. 412 Id. 413 Id.

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205 Recognizing the heavy presumption against pr ior restraints, the U.S. Supreme Court ruled that the plant had not met its burden of proving that prior restraint was necessary.1414 The Court found that even in cases involvi ng national security and competing constitutional rights, prior restraints have been found unconstitutional.1415 Further, the Court rule d that CBSs behavior in obtaining the footage did not factor into wh ether the prior restraint was applicable: Nor is the prior restraint doc trine inapplicable because th e videotape was obtained through the calculated misdeeds of CBS. In New York Times, Co ., the Court refused to suppress publication of papers stolen from the Penta gon by a third party. Subsequent civil or criminal proceedings, rather than prior restrain ts, ordinarily are the appropriate sanction for calculated defamation or other misdeeds in the Fi rst Amendment context. Even if criminal activity by the broadcaster coul d justify an exception to the prior restraint doctrine under some circumstances, the record as developed thus far contains no clear evidence of criminal activity on the party of CBS1416 Concluding that allowing a rest raint on CBS would cause irreparable harm to the news media that is intolerable under the First Amendment, the Court granted CBS a stay of injunction.1417 The Court did, however, note, If CBS has breached its state law obligations, the First Amendment requires, that [the plant] remedy it harms through a damages proceeding rather than through suppression of protected speech.1418 The Supreme Courts ruling in this case did not, however, cons ider the companys trespass claim. The Davis case then, could be considered an anomaly when viewed alongside other trespass cases involving the press. Davis should not be construed as holding that the First Amendment protected the press from liability for trespass. 414 Id. at 1317. 415 Id. 416 Id. at 1318. 417 Id. 418 Id.

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206 For example, a Minnesota appellate cour t ruled that the Firs t Amendment did not insulate a person from liability for unlawful trespass.1419 In Special Force Ministries v. WCCO Television a care facility for handicappe d persons sued a television st ation for trespass and fraud after a journalist for the station obtained a volunteer job at the fa cility and secretly recorded footage while she worked.1420 The station used journalists foot age in a report on patient care at the facility.1421 The station argued that the court should limit the decision in Copeland in which a Minnesota appellate court reversed a grant of summary judgment to a television station whose journalist had used a hidden camera. In the Copeland case, the homeowner, who was not the subject of the news story, sued for trespass.1422 The court declined, however, to distinguish Copeland and found the distinction betw een the cases insignificant.1423 As a result, the court found the trespass claim viable. The court also ruled that the First Amen dment would not shield the station from a trespass claim. Distinguishing trespass from false light invasion of privacy, which the Minnesota Supreme Court had recently declined to recognize, the Special Force court ruled: There is no inherent conflict or tension with the First Amendment in holding media representatives liable for the to rt of fraud or trespass; neither the courts nor the legislature has given such representatives carte blanch e to commit such torts in their pursuit of videotape. We therefore see not need to overrule Copeland .1424 The court, therefore, declined the stations motion for summary judgment.1425 419 Special Force Ministries v. WCCO TV, 584 N.W.2d 789,793 (Minn. Ct. App. 1998). 420 Id. at 791. 421 Id. 422 Id at 792. 423 Id. 424 Id. at 793 425 Id. at 795.

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207 In these trespass cases in which a private individuals have sued the press for entering their property, the courts have, fo r the most part, have considered whether the plaintiff actually consented to the press presence. In these civil cases some courts also have examined whether the First Amendment shielded the press from liabili ty for trespass, an otherwise strict liability tort. These same issues arise when states ha ve prosecuted members of the press for trespass under criminal statutes. Criminal Trespass In addition to civil trespass, criminal remedi es are available for use against trespassers. In People v. Berliner ,1426 for example, the State of New York charged four journalists with criminal trespass after the journalist en tered a crime scene to gather news.1427 The journalists were assigned to cover the arrest of David Be rkowitz, the Son of Sam killer, and went to Berkowitzs apartment on the day afte r his arrest to get information.1428 The journalists entered the apartment door on which the police had pos ted a sign stating, Do Not Enter, Crime Scene.1429 Police arrested the journalists upon entry after the journalists were able to take pictures.1430 Arguing that the elements of the crimes with which they were charged were not met, the journalists urged the court to dismiss the case.1431 The information under which the journalists were charged stated: 426 3 Media L. Rep. (BNA) 1942 (Yonkers (N.Y.) City Ct. 1978). 427 Id. at 1942-1943. 428 Id. 429 Id. at 1943. 430 Id. 431 Id. The state charged the journalists w ith Second Degree Criminal Trespa ss and Obstruction of Governmental Administration. Id. at 1942.

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208 At above time and place defendants acting in concert, each aiding and abetting the other did knowingly and unlawfully enter the apartmen t of one, David Berkowitz said apartment being at the time in the control and custody of the Yonkers Police Department. Defendants did enter same without the perm ission of the Yonkers Police Department and did there take photographs evidence contained th erein. Said premises were at the time posted Crime Scene, Do Not Enter.1432 Under New York law, criminal trespass occu rred when someone knowingly entered or remained unlawfully in a private residence.1433 The statutory definition of unlawfully referred to a person remaining or entering a private residence while not licen sed or privileged to do so.1434 In reviewing the journalists request, the court framed the main issue in the case as whether the police had sufficient possessory inte rest in the premises necessary to support a charge of trespass.1435 Although acknowledging that the police have the authority to exclude people from residences in which they are c onducting a lawful search, the court ruled that the journalists did not commit criminal trespass.1436 The court found that even tho ugh the police had custody of the apartment, they were not in actual possession of the apartment.1437 The officers authority stemmed from, and was limited by, the Constitution in the form of a search warrant. Therefore, a person who did not follow the officers directio ns during a search could be criminally charged, but not with trespass.1438 After the time specified on the warr ant, the police authority was limited 432 Id. at 1943. 433 N.Y. PENAL LAW 140.15 (defining criminal trespass in the second degree). 434 N.Y. PENAL LAW 140.00(5). 435 3 Media L. Rep. (BNA) at 1943. 436 Id. 437 Id. at 1944. 438 Id.

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209 with respect to control of the re sidence; [t]he police then have only a bare temporary license to search and do not acquire any further le gal interest to sust ain a trespass action.1439 The court ruled that had the information alle ged that the journalists entered the apartment without the consent of Berkowitz the apartment owner, it might have sustained the criminal trespass charge. The court dismissed the charge, noting: While the Court is not passing upon the actions of reporters relative to freedom of the press, nevertheless the Court feel s constrained to state that the actions alleged to have been committed and those they concede took place, can best be described as reprehensible and cannot be justified as legitimate in the pursuit of a news story. 1440 The court, therefore, di scharged the journalists. Although the journalists in Berliner did not claim that the criminal trespass charge infringed on their constitutional right to gather news, other members of the press have asserted the First Amendment as a defense in criminal trespass cases. In People v. Rewald ,1441 police arrested a reporter for trespass after the repor ter was asked, and refused to leave a migrant camp.1442 The owners of the camp, a local produce c ooperative, ran the prop erty like a company town; workers had housing, a hospital, a church, and other amenities regularly found in actual cities.1443 Workers could leave and retu rn at their pleasure. Howeve r, a sign to the entrance of the camp said, LABOR CAMPPRIVATE PROP ERTYOpen to ResidentsNon-residents Must Register at OfficeViolators Will be Prosecuted.1444 The camp manager had, however, 439 Id. 440 Id. The court also dismissed the Obstructing Governmental Administration charge. Id. 441 318 N.Y.S.2d 40 (N.Y. Cty. Ct. 1971). 442 Id. at 42. 443 Id. at 42-43. 444 Id. at 43.

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210 allowed the reporter entrance to the camp without registering for several years.1445 Over the duration of a year, however, the relationship betw een the camp management and the reporter had soured. On the day of the journalists arrest, he had called th e camp manager and informed him of his intention to visit the camp.1446 Once there, the camp manager ordered the repor ter to leave; when he refuse he was arrested for trespassing.1447 In analyzing the reporters appeal of his conviction for trespass, the court framed the main issue as whether the reporter had entered or remained at the camp unlawfully, as defined by state statute.1448 The New York criminal trespass statute stated in pertinent part, A person is guilty of criminal trespass in the third degree wh en he knowingly enters or remains unlawfully in or upon premises. .1449 A person enters or remains unlawfully in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the pub lic does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person.1450 After finding that the camp was open to the public because its residents were free to come and go as they pleased, the court ruled that even though the produce cooperative owned the property, it could not arbitrarily exclude people.1451 According to the court, a public or quasi-public use of property required a determinati on of the right to impose the pe nal sanction against trespass.1452 445 Id. 446 Id at 42. 447 Id 448 Id. at 44. 449 N.Y. PENAL LAW 140.05 (defining criminal trespass in the third degree). 450 N.Y. PENAL LAW 140.00(5). 451 318 N.Y.S.2d at 44-45. 452 Id. at 44.

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211 This determination depended upon the degree of the public use which the owner permits or invites upon his premises.1453 Public or partial public use of premises, wh ether under express or implied invitation or permission, carries with it the licen se to enter and, absent abus e of such privilege, carries with it the correlative license to lawfully remain[I]n no eventshould revocation of the right to remain be predicated upon mere whim caprice, or arbitrary choice. To permit arbitrary and capricious ejecti on from publicly used premises would violate not only the fair intendment of the statutory privilege, but would clearly raise serious questions of fundamental constitutional rights.1454 The journalist also argued that his conviction for trespass viol ated his right to freedom of the press as well as other constitutional rights.1455 Focusing on the residents of the camp instead of the journalist, the court ruled: [The residents] have under our Constitution a right to free access to information and, most certainly, visitors such as news reporters, ma y not be denied without good cause shown the right of reasonable visitation for purposes of gathering and disseminating news. Thus, camp residents and public alike may be fully informed, may openly communicate their ideas, may intelligently exercise their franchise to vote and, wh en and if necessary, petition their government for redress of grievances.1456 The court recognized that a prope rty owners right to control property used only for private purposes differed from those when a propert y owners land was open to the public. When property was open to the public, the publics co nstitutional rights circumscribe the property owners right to control the property.1457 The court found that the ri ght against trespass could not be used on property open to the pub lic. Nor could that right be us ed in such a manner that would 453 Id. 454 Id. at 44-45. 455 Id. at 45. The journalist asserted that the conviction also violated his 14th Amendment rights. Id. 456 Id. 457 Id. The court cited Marsh v. Alabama 326 U.S. 501 (1946), in which the U.S. Supreme Court held, Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. 326 U.S. at 506.

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212 inhibit the peoples right to receive informa tion. It concluded that the reporter had not trespassed.1458 But the public or quasi-public status of prope rty is not always determinative of whether a journalists will be convicted of criminal trespass Sometimes the decision may rest on, simply, whether the journalists vi olated the law. In Stahl v. Oklahoma ,1459 the Oklahoma Court of Criminal Appeals affirmed the convictions of ni ne journalists for criminal trespass, after the journalists followed protesters onto th e land of a nuclear power facility.1460 The Public Service Company of Oklahoma (PSO), in conjunction wi th two rural electric companies, began developing a nuclear power facility at Black Fox Station, a 2206 acre tract of land in Oklahoma.1461 Members of an organization opposed to the nuclear plant began protesting at Black Fox Station, where the PSO had er ected a fence to ex clude protesters.1462 The PSO had warned protesters that it woul d have anyone who crossed the fence arrested. In spite of this, protesters crossed the fence, followed by the journalists.1463 Both protesters and journalists were arrested. The journalists were convicted of crimin al trespass under title 21 Oklahoma Statute 1835, which states: Whoever shall willfully or maliciously enter th e garden, yard, or enclosed field of another after being expressly forbidden to do so by th e owner or occupant thereof shall be deemed 458 318 N.Y.S.2d at 46. 459 665 P.2d 839 (Okla. Crim. App. 1983). 460 Id. at 840. 461 Id. 462 Id. 463 Id.

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213 guilty of trespass and upon conviction thereof shall be fined in nay sum not to exceed Twenty-five Dollars (25.00).1464 The journalists argued that the convictions should be overturned because they lacked the intent necessary for criminal trespass under the Ok lahoma Statute, and that they were privileged by the First Amendment to accompany the protesters onto the closed property.1465 The court found, however, that Title 21 Oklahoma Statute 92 established that willf ully, the requisite intent for criminal trespass, when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act or the omission re ferred to. It does not require any intent to violate law, or to in jure another, or to acquire any advantage.1466 Therefore, it did not matter that the journalist s did not intend to break the law or to injure the property rights of the PSO; it is sufficient that they trespassed on the property.1467 Further, the court ruled that the First Am endment did not shield the journalists from criminal trespass convictions.1468 Although recognizing the PSOs actions in having the journalists arrested constituted state action,1469 the court found the Black Fox grounds were closed to both the public and th e press. The PSO had, however, established a viewing area near the facility, and visitors could have requested permission to visit the site.1470 Finding this policy 464 OKLA. STAT. tit. 21, 1835(a) (1981). 465 665 P.2d at 840-841. 466 OKLA. STAT. tit. 21, 92 (1981). 467 665 P.2d at 840. The court noted that actual damage to the landowner was not an element of criminal trespass in the first part of the statute under which the journalists were convicted. Id. 468 Id. at 841. The First Amendment does not shield newsperson from liability for torts and crimes committed in the course of news-gathering. Id. (citing Galella and Dietemann ). 469 665 P.2d at 841. The court notes that the trial court found a sufficiently close nexu s existed between the actions of PSO and the state and federal governments to fairly treat the actions of PSO as the actions of government itself. Id. 470 Id.

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214 to be based on the need to avoi d harm to visitors due to ditc hes and holes on the property and the roads, as well as to avoid vandalism, the cour t ruled that the PSO had acted within its power to have the journalists arrested.1471 Additionally, the court stated that the First Amendment did not establish a right of sp ecial access for the press not available to the public.1472 Also, the court ruled this property is not a traditional public foru m such as public streets, sidewalks, and parks, and there is no constitu tional guarantee of access.1473 The lone dissenter, Judge Brett, argued, however, that the applic ation of the Oklahoma criminal trespass statute to the journalists in this case was unconstitutional for three reasons. To make these conclusions, Judge Brett examined pr ecedent from both state and federal law. The Oklahoma constitution provides, No law shall be pa ssed to restrain or abridge the liberty of speech or of the press.1474 The Oklahoma courts had interpre ted this provision of the state constitution as meaning: No one can deny the long established right of the press in the United States to gather and disseminate news and information concerning ev ery phase of human activity, together with the incidents pertaining thereto. This [right] makes the press the most potent servant of the people in protecting all rights against acts of tyranny, fraud, and corruption, as well as a most prolific medium of information and educa tion. We are of the opinion that freedom of speech and press is not a discriminate right but the equal right of newsgathering and 471 Id. Governmental entities are empowered to regulate prope rty under their control in order to preserve the property under their control in order to preserve the property for the use to which it is lawfully dedicated. Id. 472 Id. at 842. (citing Branzburg v. Hayes 408 U.S. 665, 684 (1972)). 473 Id. The court cited U.S. Postal Service v. Council of Greenburgh Civic Assoc ., 453 U.S. 114 (1981), in which the U.S. Supreme Court ruled: The First Amendment doe not guarantee access to property simply because it is owned or controlled by the government. In Greer v. Spock 424 U.S. 828, 96 S. Ct. 1211, 47 L. Ed. 2d 505 (1976), the Court cited approvingly from its earlier opinion in Adderley v. Florida 385 U.S. 39, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966) wherein it explained that The State, no less th an a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. 424 U.S. 828, 836, 96 S. Ct. 1211, 1216, 47 L. Ed. 2d 505. U.S. Post. Serv. v. Coun. of Greenburgh Civ. Assoc., 453 U.S. 114, 129-130. 474 OKLA. CONST. ART. II, 22.

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215 disseminating agencies, subject to the restric tions against abuse, and injurious use to individuals or public rights and welfare.1475 Judge Brett also noted that federal court cases, although not factually analogous to the Stahl case, were instructive because the federal cases provided a method of analyzing challenges to First Amendment rights.1476 In these cases, the U.S. Supreme Court balanced First Amendment rights with the states actions. Judge Br ett interpreted these case s as hold[ing] that any press access claim to government information is subject to a degree of restraint dictated by the kind of forum, the nature of the inform ation sought and the count ervailing governmental interests. Theses claims are analyz ed by balancing these three factors.1477 Using these three factors, Judge Brett held: [O]ur State Constitution gives protection for the rights of the press to reasonable access to gather news and any restraint on this right, including but not limited to enforcement of a criminal trespass statute, requires that the Stat e show a relatively greater consideration that must be exercised in the public interest. A balancing of th ese opposing interests is thus mandated.1478 First, Judge Brett argued that the journalis ts right of reasonable access to newsworthy events outweighed the States reas ons for prohibiting the journalists from newsgathering at Black Fox Station.1479 Although acknowledging that Black Fox St ation was not a traditional public forum, and that the PSOs actions did not, therefor e, require the stringent weighing standards of time, place, and manner regulations, Judge Bret t did conclude that the property was quasi475 665 P.2d at 845 (Brett, J. dissenting). (quoting Lyles v. State 330 P.2d 734, 739 (Okla. Crim. App. 1958) (upholding a courts decision to permit television cameras in its courtroom)). 476 665 P.2d at 845 (Brett, J. dissenting). 477 Id. at 846. 478 Id. 479 Id. at 849.

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216 public and the PSOs actions constituted state action.1480 Further, he argued that the press right to gather news and to have reasonable access to newsworthy events was constitutionally protected: It is an uncontroverted fact that the news media is an integral part of our national communication system by which the public obta ins information to form their judgments about national politics. The press has a cons titutionally recognized role to inform and educate, offer criticism and provide a forum for public discussion and debate.1481 Judge Brett reasoned that the Black Fox protest was newswo rthy and the First Amendment protected the press coverage of the event.1482 Also, the PSOs designated area for the press was not reasonable access because it did not allow the press the abili ty to observe the protest. Further, the journalists were ga thering news about the government, and this [is the] type of information the public had a deserved right to know.1483 On the other hand, Judge Brett argued that the state justified the prosecution of the journalists for criminal trespass to maintain order and to protect property interests.1484 In order to determine whether a state had acted within its police powers, the court had to evaluate whether the States police power s extend so far as to restrict or totally subvert pre ss access to a newsworthy event?1485 The determination of that question begins w ith the observation that the usual presumption favoring statutory validity is not operative ag ainst restrictions of pre-eminent freedoms secured by our State Constitution and the Fi rst Amendment of the U.S. Constitution. These liberties are given a prio rity that does not permit dubious intrusion. Accordingly, any attempt to restrict them must be justifie d by a clear public intere st that is presently threatened by the activity sought to be regulated.1486 480 Id. at 846. 481 Id. at 847. 482 Id. 483 Id. (citing Richmond Newspapers, Inc. v. Virginia 448 U.S. 555 (1980). 484 665 P.2d at 847. 485 Id. 486 Id.

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217 The dissent found the states interest in protecting public safety inap plicable to the prosecution of the journalists for criminal trespass.1487 The journalists were only in terested in gathering news. Further, Black Fox Station was not a crime or disa ster scene at which the exclusion of the press would have been warranted.1488 The dissent also argued that the states ar gument that the protest was not newsworthy was constitutionally impermissible.1489 The government was not al lowed to decide what was newsworthy, according to the dissent. On the contrary, the public decided newsworthiness.1490 Also, although finding the states interest in protecting the PSO s property rights was of the highest importance, in this case property rights were not implicated because the journalists had not endangered the PSOs property rights.1491 Finally, the dissent noted that the trial court found that the re ason behind the PSOs restriction on press access was for the illegitimate purpose of cont rolling the kind of news story the press would later di stribute to the public.1492 The trial court, however, did not properly weight the states illegitimate purpose. Judge Brett noted that the U.S. Supreme Court held content-based regulations unconstitutional.1493 The dissent reasoned that the trial court did not 487 Id. 488 Id. 489 Id. at 848. 490 Id. (citing Miami Herald Publg Co. v. Tornillo, 418 U.S. 241, 258 (1974) (holding a Florida right of reply statute unconstitutional). 491 665 P.2d at 848. 492 Id. 493 Id.

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218 properly scrutinize the PSOs motives for restricti ng the press, and held, th erefore, that the PSO had no legitimate reason to have the jour nalists prosecuted for criminal trespass.1494 The dissent did, however, limit its holding, stati ng that the press did not have an absolute right to gather news on public property, but that criminal trespa ss could not be used to exclude the press from their constitutionally protected news gathering role on public property when the State does not present a legitimate or important countervailing interest.1495 The press remains subject to reasonable time, place and manner restriction when exercising its news gathering role in traditional First Amendment forums and subject to the weighing tests discussed herein when making a press a ccess claim to non-traditional public forums. I would reaffirm the holding in Central Liquor Co. v. Okl ahoma Alcoholic Beverage and Control Board 640 P.2d 1351 (Okl. 1980), where the State Supreme Court stated: Police power must be exercised in the public interest with scrupulous concern for private rights guaranteed by the Constitution. It may not be utilized for the benefit of a private company. I agree that the power of the State must be protected but it must not be abused.1496 New Mexico v. McCormack1497 also involved the arrest of a journalist, Kenneth McCormack, for criminal trespass. Protesters gath ered at a federal nuclear waste site that the Department of Energy (DOE) had closed to the public.1498 The DOE had created a buffer zone some 800 feet away from the sites construction zone, and posted No Trespassing signs.1499 The day before the protest, the DOE held a conf erence for the media at which journalists were warned that there were no exceptions to th e no trespassing mandate; McCormack was not, however, at the meeting.1500 On the day of the protest, McCormack followed, taking pictures, as 494 Id. at 849. 495 Id. 496 Id. 497 682 P.2d 742 (N.M. Ct. App. 1984). 498 Id. at 744. 499 Id. 500 Id.

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219 twenty-nine protesters crossed a police barri cade into the restricted area at the site.1501 Police arrested the protesters and McCormack for crimin al trespass. A court found him guilty and fined him $500 and gave him a suspended jail sentence of 30 days.1502 On appeal, McCormack argued that he did not criminally trespass because he did not have the requisite intent to violate the stat ute because he did not believe that the DOEs restrictions applied to the media.1503 The court disagreed, and rule d that ignorance of the law is no defense to a crime of general intent.1504 The state was only required to demonstrate that McCormack entered the land without authorization; in this case, McCormack entered the restricted property in spite of the warnings.1505 McCormack also argued that the criminal trespass statute, as applied in this case, infringed upon his First Amendment rights.1506 According to the journalist, the criminal trespass statute infringed upon his right to peaceably assemble.1507 The court rejected this argument, asserting that U.S. Supreme Court has held that the government may exclude peaceful assembly or access which interferes with the function of the institution.1508 The court ruled that it needed only to inquire into whethe r the restriction was reasona ble and content-neutral.1509 The court 501 Id. 502 Id. at 743. 503 Id. at 744. 504 Id. at 745. General intent means, The state of mind required for the commission of certain common-law crimes not requiring a specific intent or not imposing strict liability. BLACKS LAW DICTIONARY 360 (2d ed. 2001). This means that it is unnecessary to in tend to commit a crime in order to be found guilty of that crime. 505 Id. 506 Id. 507 Id. 508 Id. at 746. 509 Id. The court based this ruling on Adderley v. Florida 385 U.S. 39 (1966)(upholding the convictions of students who protested outside of a jail).

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220 reasoned that the DOEs restricti on on entry into the site was r easonable because it was intended to protect the people working in the constructio n, the property and equipment located there, and to avoid a shutdown of the costly project.1510 The court ruled that the DOEs restrictions did not violate McCormacks First Amendment right to assemble.1511 McCormack also argued that his conviction fo r criminal trespass infringed on his right to freedom of the press because it rest ricted his ability to gather news.1512 Although acknowledging that the freedom of the press involved both acquisition of information and dissemination of information, the court rejected McCormacks ar gument that the press has special access to areas.1513 The court chose instead to follow the U.S. Supreme Courts decision in Pell v. Procunier,1514 which the McCormack court interpreted as holding that the First Amendment does not require that members of the press have a special right of access to gather information, above and beyond that of the public generally.1515 Further, the court rejected McCormacks argument that Richmond Newspapers, Inc. v. Virginia1516 controlled whether or not the press s hould have been gr anted access to the property.1517 Distinguishing Richmond Newspapers the court found that the government construction site at issue in the instant case was different from the criminal trial at issue in 510 682 P.2d at 746. 511 Id. 512 Id. 513 Id. 514 417 U.S. 817 (1974). 515 682 P.2d at 746. 516 448 U.S. 555 (1980). 517 682 P.2d at 747. The U.S. Supreme Court ruled in Richmond Newspapers, [T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. 448 U.S. at 575.

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221 Richmond Newspapers .1518 The court also noted Zemel v. Rusk1519 which it interpreted as holding that many actions may decrease data flow to the public, but that does not mean that they violate the First Amendment. 1520 The court held that McCormack had no greater right to enter the federal land than a member of the public. The court, therefore, affirmed McCormacks conviction for criminal trespass.1521 A federal court also used Pell to deny the appeal of journa lists convicted of criminal trespass under a federal statute.1522 In United States v. Maldonado-Norat the federal district court in Puerto Rico rejected the First Amendment arguments of a group of journalists who trespass onto a naval base.1523 While expressing its sympathy fo r the journalists unassailable premise that a truly free press is essential to the preservation of a just and free society, the court found that Supreme Court precedent reject ed that idea that the freedom of the press allowed journalists to break the law.1524 The court examined Branzburg v. Hayes1525 in which the Supreme Court held that the First Amendment did not absolve journalists from th eir civic duty to testify in front of a grand jury, and found that the Supreme Court declared that it is clear that the First Amendment does not invalidate every incidental bu rdening of the press that may result from the enforcement of 518 682 P.2d at 747. 519 381 U.S. 1 (1965) (holding that the press did not have an unrestrained right to gather news). 520 682 P.2d at 747. 521 Id. 522 U.S. v. Maldonado-Norat, 122 F. Supp. 2d 264 (Dist. P.R. 2000). 523 Id. at 264. 524 Id. at 265. 525 408 U.S. 665 (1972).

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222 civil or criminal statutes of general applicability.1526 The court found that the Supreme Court held that the press had no constitutional right to special access to information.1527 The Maldonado-Norat court, therefore, ruled that the journalists had no special ri ght of access to the naval base, and that there was no special ci rcumstances that would require such access.1528 The court supported its ruling against special access for the press with Pell in which the Supreme Court ruled that The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally.1529 In Pell, the Court also noted, there are fe w restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow.530 The Maldonado-Norat court found that the federal trespass statute was subject to an ingeni ous argument, but that it did not violate the journalists First Amendment rights.531 As such, the court denied the journalists motion to dismiss based on the First Amendment. Joint Activities With Government Officia ls Members of the press do not always purpos ely intrude or trespass on private property. Sometimes public officials such as police officer s, paramedics and health inspectors, allow journalists to accompany them as they go about their official duties. These instances are sometimes called ride-alongs. But receivi ng permission to accompany government employees does not always absolve the press from suits for intrusion or trespass. This section examines 526 122 F. Supp. 2d at 265 (quoting Branzburg 408 U.S. at 682). 527 122 F. Supp. 2d at 265 (citing Branzburg 408 U.S. at 684). 528 122 F. Supp. 2d at 265. 529 Pell 417 U.S. at 819. 530 Id. at 834 n. 9 (quoting Zemel ). 531 122 F. Supp. 2d at 265.

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223 cases in which journalists have been sued for acting jointly, or claiming to act jointly, with law enforcement or other government response units. For example, on the afternoon of September 15, 1972 a fire broke out at the Fletcher family home, killing the oldest child, Cindy.532 After the fire department doused the fire and removed the body of the victim, the Fire Marshal and a police sergeant began their investigation; they invited members of the media to join them as they deposed was th eir standard practice.533 The reporters entered the house after the marsha l, without causing any further damage to the property.534 During his investigation, the Fire Mars hal attempted to take pictures of the silhouette that the childs body had made on the floor. To do this, he used a Polaroid camera, but found that the photo inadequate.535 He, therefore, asked one of the accompanying photographers to photograph the silhouette; this pi cture later became a part of th e official investigation file.536 The photographer also gave the pictures to th e newspaper, which then published the photos.537 Cindys mother sued the newspaper publishe r for damages claiming trespass, invasion of privacy and intentional inflic tion of emotional distress.538 The trial court dismissed the invasion of privacy claim and granted summary judgm ent to the publisher on the trespass claim.539 The court conceptualized the main issue on Fletchers trespass claim as whether the journalists entry and photographing of the house was consented to by the doctrine of common custom and 532 Florida Publg Co. v. Fletcher, 340 So. 2d 914, 915 (Fla. 1976). 533 Id. 534 Id. 535 Id. at 915-916. 536 Id. at 916. 537 Id. 538 Id. 539 Id. The court also granted the publisher summary judgment on the emotional distress claim. Id.

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224 usage.540 In noting that the settled law in Flor ida recognized no trespass when entry onto property was made under custom or usage, the court acknowledged Martin v. Struthers ,541 in which the U.S. Supreme Court struck a city or dinance that made it a trespass to knock on doors while pamphleting.542 Ruling the ordinance an unconstitutional infringement on speech, the Court held: Traditionally the American law punishes person s who enter onto the property of another after having been warned by the owner to ke ep offWe know of no state which, as does the Struthers ordinance in effect, makes a pers on a criminal trespasser if he enters the property of another for an innocent purpose w ithout an explicit command from the owners to stay away.543 In addition, the Fire Marshal testified and seve ral media outlets submitted affidavits validating the custom of allowing the media to enter private property after fires.544 In light of this evidence, and Fletchers concession that the fire and police departments were privileged to enter her property without permission, that the silhouette photograph was used as pa rt of the official investigation, and that the photogr apher was not restricted from publishing the picture, the court moved in favor of the newspaper.545 The trial court found no issue of material fact, and as a matter of law an entry, that may otherwise be an actionable trespass, becomes lawful and nonactionable when it is done under common usage, custom and practice.546 On appeal, the Florida Dist rict Court found the evidence of the custom of allowing the media, under certain circumstances, to enter priv ate property, insufficient and reversed the trial 540 Id. 541 319 U.S. 141 (1943). 542 Id. at 147-149. 543 Id. at 147-148. 544 340 So. 2d at 916. 545 Id. at 917. 546 Id.

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225 courts grant of summary judgment.547 The Florida Supreme Court re versed the District Court, however, and ruled the trial courts gr ant of summary judgment was proper.548 Using Judge McCords lone dissent from the District Court, the state supreme court found it had been shown that it was common usage, custom and practice for news media to enter private premises and homes under the circumstances present here .549 Judge McCord determined that there was implied consent for the media to enter the private property.550 The fire was of public interest, and the journalists entered the house upon invitation by the Fire Ma rshal and police sergeant.551 Further, the affidavits from other media outlets demonstrated [I]t has been a longstanding custom and pract ice throughout the country for representatives of the news media to enter upon private property where disaster of great public interest has occurred entering in a peaceful manner, w ithout causing any physical damage, and at the invitation of the officers who are investiga ting the calamity. The affidavits of law enforcement officers indicate that the presence of the news media at such investigations is often helpful to the investiga tion in developing leads, etc.552 According to Judge McCord, implied consent by custom and usage did not rest upon whether the property owner had previously given the media pe rmission to enter the pr operty, but on custom and usage.553 Also, the judge noted that the issue of custom and usag e for media to enter private 547 Id. The intermediate appellate court determined that alth ough custom and usage were implied consent, Fletcher had not impliedly consented to the media entering her house. Further, the court concluded the testimonial and affidavit evidence presented at trial did not demonstrate th at there was no genuine issue of material fact as to whether implied consent by custom an usage authorized entry into the premises without invitation by appellant. Id. 548 Id. at 918. 549 Id. (emphasis original). 550 Id. 551 Id. 552 Id. 553 Id. The judge did, however, recogn ized that implied consent would not exist if the property owner had previously informed the media not to enter. Id.

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226 property at the invitation of of ficers was a matter of first impr ession, indicating that this was common newsgathering practice.554 Because of this, Judge McCord affirmed the trial courts grant of summary judgment for the newspaper. The Florida Supreme Court approved this conclusion.555 Although the Fletcher case was the first case dealing wi th the custom and usage of media entering private property during an event of public interest, this does not mean that all courts have followed its ruling. In Prahl v. Brosamle ,556 a Wisconsin appellate court ruled that a research scientist had not expressly or impliedly consented to a reporters entry onto his property to cover a story.557 In Prahl police were called to the residenc e of Helmut Prahl after four boys accused him of shooting at them as they rode past his house on their bicycles.558 Brosamle, a reporter for a local televi sion station, heard about th e incident while listeni ng to a police scanner, and went to Prahls property. At the property, Brosamle intro duced himself to officers, and asked one officer for a ride to Prahls residence, to which the officer obliged.559 The reporter entered the building and filmed officers as they searched and confiscated materials. Prahl noticed Brosamle, but did not request that the re porter leave because he thought that he was an 554 Id. C.f. Green Valley Sch., Inc. v. Cowles Florida Broad ., 327 So. 2d 810, 819 (Fla. Ct. App. 1976) In this jurisdiction, a law enforcement officer is not as a matter of law endowed with the right or authority to invite people of his choosing to invade private property and participate in a midnight raid of the premises. Id. 555 340 So. 2d at 919. 556 295 N.W.2d 768 (Wis. App. Ct. 1980). 557 Id. at 780. 558 Id. at 772. 559 Id. at 773.

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227 officer or a deputy.560 Brosamle used the footage he shot at the scene for an evening news report.561 Prahl sued both law enforcement and the television station for which Brosamle worked for damages related the reporters newsgathering.562 The doctor claimed that Brosamle, acting in conjunction with police, violated his civil rights, under 42 U.S.C. 1983, which provides a cause of action against any person, acti ng under color of state law, who deprives another of any constitutional or federal right.563 In order to recover under 1983, Prahl had to prove that Brosamle deprived him of his constitutional or federal rights and that the reporter acted under color of state law. Although conceding that th e police had probable cause to search his house, Prahl argued that the search became unreasonable when Brosamle filmed and later broadcast the footage of the search.564 The court disagreed, and declined to rule that the filming and television broadcast of a reasonable search and seizure, without more, result in unreasonableness.565 The court found that the lack of intimate or offensive content of the search, filming and broadcast made those activities reasonable.566 560 Id. 561 Id. 562 Id. at 772. Prahl also sued for defamation, which is beyond the scope of this dissertation. 563 Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or caus e to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the depr ivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured. 42 U.S.C. 1983. 564 295 N.W.2d at 774. 565 Id. 566 Id.

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228 The court also ruled that there was no eviden ce that Brosamle acted under state law. The court found that a person acts under color of law when that person was a willful participant in joint activity with the State or its agents.567 Using this rule, the court found that Brosamle acted exclusively for his private employer.568 The Wisconsin court also ruled Brosamle trespassed when he entered Prahls home without express or implied permission.569 Rejecting the journalists assertion that Prahl impliedly consented, by custom and usage, to Brosamles entering his home, the court distinguished Fletcher .570 The court found that unlike Fletcher where the Fire Marshal requested the photographers assist ance, the police at the Prahl residence did not request the Brosamles presence or assistance.571 Brosamle, also, did not present evidence of custom and usage like journalists had in Fletcher .572 The court ruled: We will not imply a consent as a matter of la w. It is of course well known that news representatives want to ente r a private building after or even during a newsworthy event within the building. That knowle dge is no basis for an implied consent by the possessor of the building to entry. .Few private persons an ticipate [. .] that an unplanned newsworthy even will occur on their property. An advan ce objection to entry under remotely possible circumstances need not be made, and it is unre asonable to require an objection after entry under distracting circumstances, especially when the identity of th e intruder is unknown. We conclude that custom and usage have not been shown in fact or law to confer an implied consent upon news representatives to enter a building under the circumstances presented by this case.573 567 Id. (quoting Adickes v. Kress & Co ., 398 U.S. 144, 152 (1970)). 568 295 N.W.2d at 774. 569 Id. at 779. 570 Id. at 779. 571 Id. at 780. 572 Id. 573 Id.

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229 Further, the court rejected Brosamles argumen t that his trespass was privileged by the First Amendment, concluding that the claimed constitutional priv ilege did not exist.574 Whether a constitutional privilege exists is a major issue in these cases involving joint activities with government officials. The first part of this section consid ers joint activities with law enforcement. Following this, joint activities with other first responders are examined. This section ends by considering other join t activities conducted to gather news. Law Enforcement Joint activity with law enforcement may be the most common type of joint activity between the press and government officials. Members of law enforcement are commonly called to the scene of crimes, accidents, and other ma jor events. In order to cover these events effectively, and to report on th e behavior of law enforcemen t, journalists often develop relationships with police departments, which allo w them to ride along with officers. These law enforcement ride-alongs can be di vided into two categories: warrant searches and investigations. Warrant searches The Fourth Amendment of the Constitution a nnunciates the right of the people to be secureagainst unreasonable searches and seizures.575 This amendment protects some aspects of an individuals right to privacy. One way in which the Fourth Amendment does this is by requiring a warrant for certain searches.576 A warrant is [a] writ directing or authorizing someone to do an act.577 For law enforcement such a writ would authorize members of law enforcement to enter an indivi duals home to search for and seize items or persons under 574 Id. at 781. 575 U.S. CONST. amend IV. 576 [N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend IV. 577 BLACKS LAW DICTIONARY 758 (2d ed. 2001).

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230 investigation. To obtain a warrant, the investigator makes a sworn application stating the specific place, items or persons for which to be searched.578 The officer must then have the application approved by a judge, who examines the document for the required level of specificity and to ensure that the officer has the re quisite probable cause for such a warrant.579 Once a warrant is approved, the officer is bound to the sc ope of the warrant. Meaning, that the officer may not search or seize, except in certain circ umstances, items or places not described in the warrant.580 When officers allow members of the pr ess to accompany them during the execution of a search warrant, the officer may be accuse d of going beyond the scope of the warrant; the journalist may be accused of trespass or intrusion In Anderson v. WROC-TV ,581 for example, a homeowner su ed a broadcast station, after journalists accompanied a Humane Society inve stigator on warrant se arch of her property.582 Ronald Storm, an investigator for the Humane Society, obtained a warrant to search a house after receiving complaints that animals at the re sidence were not being properly maintained.583 Storm contacted three television stati ons and invited journalists to ac company him inside the home. While at the residence, the reporters filmed the interior of the home, and later used the footage on an evening news broadcast.584 The basis of the homeowners complaint was the allegation that she asked the reporters not to enter her home. The j ournalists, however, ignored her re quests and entered her residence 578 JOSHUA DRESSLER, UNDERSTANDING CRIMINAL PROCEDURE 11.02 (2002). 579 Id 580 Id at 11.06 [F]. 581 441 N.Y.S.2d 220 (N.Y. Sup. Ct. 1981). 582 Id. at 222. 583 Id. 584 Id.

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231 with the officers.585 Relying on Fletcher the television station argued three defenses: (1) the reporters had an absolute privilege; (2) entry was protected based the publics right to access information; (3) the property was open to the public based on custom and usage.586 Although agreeing with the laws stated by the Fletcher court, the Anderson court did not accept the Fletcher conclusions.587 According to the Anderson court, the Florida Supreme Court ruling in Fletcher that news media entry onto property w ith the consent of law enforcement was customary in Florida was based on affidavits from state and national news editors and state law enforcement officials.588 The Anderson court disagreed with this conclusion: The gathering of news and the means by which it is obtained does not authorize, whether under the First Amendment or otherwise, the right to enter into a private home by an implied invitation arising out of a self-created custom and practice. This is a bootstrap argument which does not eliminate the trespa ssory conduct of the defendants in this case.589 Recognizing that trespass by law enforcement can be justified when an officer acts in the performance of his duty, the court ruled such authority does not extend by invitation, absent an emergency, to every and any other member of the public, including members of the news media.590 What must be remembered is that news people do not stand in any favored position with respect to newsgathering activity. The United States Supreme Court has repeatedly held that the First Amendment right to speak and publish does not carry with it the unrestrained 585 Id. 586 Id. at 222-223. 587 Id. at 223. 588 Id. 589 Id. 590 Id.

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232 right to gather information. News people ha ve no special First Amendment immunity or special privilege to invade the rights and liberties of others.591 The court found that restrictions may be imposed on the press that restrict its free exercise of its First Amendment rights when those rights i nvolve unlawful entry onto private property.592 The court also rejected the television st ations argument that it should be allowed a qualified privilege which would excuse only a ce rtain degree of intrus ion, the scope of the invasion being balanced against the public interest served.593 Under the balancing test proposed by the television station, the alleged intrusion would be bala nced against the newsworthiness of the story. A jury, then, would determine whet her the public interest granted the reporters permission to enter the property to the cover the story. To allow any other test, according to the television station, would be akin to prior restraint.594 Finding this argument unpersuasive, the court ruled that, [a]ssessing the degree of the in trusion against the newsworthiness of the story is a test that is too vague and subjective to counterbalance the predominant interest served in protecting the rights of individuals in a free society against invasion of their privacy or their home.595 Additionally, the court noted that the homeowners cause of action focused on how 591 Id at 224 (citing Branzburg; Pell v. Procunier, 417 U.S 817 (197 4); and Houchins v. KQED 438 U.S. 1 (1978 )). 592 441 N.Y.S.2d at 224. The court notes the U.S. Supreme Court opinion stating [Where] property is not ordinarily open to the public, his Court has held that access to it for the purpose of exercising First Amendment rights may be denied altogether. Food Employees v. Logan Plaza 391 U.S. 308, 320 (1968). 593 441 N.Y.S.2d at 224. 594 Id. The television station analogized its balancing test to the law of defamation which, while it does not permit prior censoring of a story, allows the damages if a jury finds the existence of malice a nd the absence of good faith and fair comment. Id. 595 Id. Noting one commentator: Even if the information sought were considered especially important, an ad hoc balancing test would seem improper since it would determine the lawfulness of the means of gathering according to the end value of the information gained in each case. Moreover, it would of ten be difficult to determine if the activity at issue was pursued with the ultimate objective of obtaining information, and any measurement of the value fo the information obtained would be vague, subjective criteria.

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233 the television station obtained the information, and not the publication of that information.596 The mere fact that the homeowner was under susp icision of a crime also did not excuse the television stations trespass.597 According to the Anderson court, the Florida Supreme Court in Fletcher relied on cases that were not applicable to that case.598 The court relied upon cases th at concluded that custom and usage implied permission to enter private property.599 According to the Anderson court, the same principle applies to anyone, but doe s not allow entry in to a private home.600 In addition, the court found that such a right to enter would only apply to certain property, and was not left to the discretion of the news media organization to determine when there is an event occurring which they alone deem newsworthy.601 Allowing such entry would grant the press more authority to enter private property than the Constitution permits the government and would amount to a general warrant, equiva lent to the writs of assistance which were so odious to the American colonists.602 The court also used the court opinions Prahl case and Costlow v. Cusimano to make its ruling. The court found the tele vision stations reliance on Costlow to be misplaced. The Id. at 224-225 (quoting Note, The Rights of the Public and the Press to Gather Information 87 HARV. L. REV. 1505, 1515 (1974)). 596 441 N.Y.S.2d at 225. 597 Id. 598 Id. 599 Id. (citing Prior v. White 180 So. 347 (Fla. 1938); Martin v. Struthers 319 U.S. 141 (1943); Boston Mfrs. Mut. Ins. Co. v. Fornalski (234 So.2d 386 (Fla. 1970); McKee v. Gratz 260 U.S. 127 (1922)). 600 441 N.Y.S.2d at 226. 601 Id. 602 Id. The court stated, There is no consent that I am aware of, whether created by law or by custom, which permits television cameras to enter where the sovereign may not. Id.

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234 Costlow courts statement that the journalists en try onto private proper ty possibly justified, according to the Anderson court, was dictum.603 The court found other significant differences between the investigation of a fi re in Fletcher and the investig ation by the Humane Society in Anderson.604 While journalists in Fletcher were also asked to photogra ph the silhouette as part of an investigation file, the reporters in the Anderson case took no part in the investigation.605 The television station also lacked the evidentiary suppor t of the affidavits of custom and usage that the journalists in Fletcher provided. The evidence the te levision station provided was insufficient to support the journalis ts argument of custom and usage. The court, therefore, ruled in favor of the homeowner and dismissed the stations motion for summary judgment.606 A federal court also has denied a media outle ts motion to dismiss a claim against it for violation of a mother and sons constitutional ri ghts during a ride-along with federal agents.607 Agents of the United States Treasury execute d a search warrant on the home of Babatunde Ayeni, who was under investigation for running a credit card fraud operation.608 At the time of the search, Ayeni was not at home. His wife and four-year-old son, however, were present.609 The head agent, Agent Mottola, had arranged for a CBSs Street Stories camera crew to be present during the search. Arri ving two hours after the search began, Mottola and the CBS crew entered the apartment and began filming as other agents searched.610 Ayeni objected to the 603 Id. at 226-227. 604 Id. at 227. 605 Id. 606 Id. 607 Ayeni v. CBS, Inc., 848 F. Supp. 362, 368 (E.D.N.Y. 1994). 608 Id. at 364. 609 Id. 610 Id.

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235 presence of the camera and the filming of herself and her son.611 The camera crew continued to film the search, however, and take pictures of the insides of closets, letters, family pictures and wall hangings.612 The camera crew also filmed while the agents questioned Ayeni about her husbands whereabouts and items in the apartment.613 Ayeni filed suit against the agents and CBS, claiming the parties had violated her a nd her sons constituti onal right to privacy.614 CBS argued that it was immune from suit b ecause its journalists accompanied federal agents in the execution of a search warrant.615 Government agents are immune from civil suits unless their conduct violates cl early established statutory or constitutional ri ghts of which a reasonable person should have known.616 In order for the court to determine whether Mottola was immune from suit, the court had to determ ine whether, at the tim e of the search, it was clearly established that his actions constituted an unreasonable search and seizure under the Fourth Amendment.617 According to the court, a person s home is the clearest example of a place were the individual has a reasonable expect ation of privacy; if the government wants to enter and search, it must have a search warrant.618 The governments search must stay within scope of the warrant, and [i]t is well establis hed by statute that a person not specifically 611 Id. at 365. 612 Id. 613 Id. 614 Id. at 364. 615 Id. 616 Id. at 365 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). 617 Id. at 366. The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search es and seizures. U.S. Const. amend IV. 618 Id.

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236 authorized by a search warrant may not participate in a search unless he is aiding the officer authorized by the warrant.619 In applying this law, the court found that Mottolas allowi ng CBS to enter and film the Ayeni home during the search exceeded the scope of the search warrant.620 The court ruled, It was a clear violation of then we ll established Fourth Amendment principles. For this purpose, it is the equivalent of a rogue policeman using his o fficial position to break into a home in order to steal objects for his own pr ofit or that of another.621 The court found the agents behavior constitutionally unacceptable, as he executed th e search warrant for the benefit of a private entity.622 The court ruled, It would be grossly unre asonable for a government agent not to have known that the presence of private pe rsons he invited in, so that th ey could titillate and entertain others was beyond the scope of what was lawfully authorized by the warrant.623 Further, the court ruled that the pictures CBS took during th e search constituted a seizure under the Fourth Amendment.624 Ayenis complaint alleged that the camera crew was not aiding the investigation, but w as filming for their own newsgathering purposes.625 The court ruled that if this was true, the filming violated the Constitution and federal law, and was therefore, a seizure beyond the scope of the warrant.626 The court ruled that CBS, as a private entity, was not entitled to qualified immunity, CBS had no great er right than that of a thief to be in the 619 Id. (citing 18 U.S.C. 3105). 620 848 F. Supp. at 368. 621 Id. 622 Id. 623 Id 624 Id. 625 848 F Supp. at 368. 626 Id.

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237 home, to take pictures and to remove the photographic record.627 The Second Circuit U.S. Court of Appeals affirmed the courts ruling on appeal.628 Ayenis claim against the agent for violating her constitutional right s was whats called a Bivens action. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,629 the U.S. Supreme Court ruled that the Fourth Amendment demands that officers executing a search warrant stay within the express parameters of that warrant.630 Other federal courts continue to follow this ruling, a nd have rejected immunity for officers when they have exceeded the scope of search warrants. In ri de-along cases, like the one involved in Ayeni this may mean that the court will reject the medi a outlets claim of qualified immunity. Plaintiffs in these cases usually file suit under 42 U.S.C. 19 83, the federal civil rights statute. In Parker v. Clarke,631 for example, Sandra Parker and her daughter sued members of the Board of Police Commissioner of the City of St. Louis, police officers, and Multi-Media KSDK, Inc. pursuant to 42 U.S.C. 1983 and Missouri tort law, for violating their civil rights and for invasion of privacy.632 The suit arose after police execute d a search warrant for drugs, money and drug transaction records at th e Parker residence. A KSDK reporter accompanied officers on the raid and filmed during the search.633 The reporter was not, however, aware beforehand that the warrant would be executed.634 The target of the search warra nt, a relative of the Parkers, was 627 Id. 628 Ayeni v. Mottola, 35 F.3d 680, 691 (2d Cir. 1994). 629 403 U.S. 388 (1971). 630 Id. at 394 n.7. 631 905 F. Supp. 638 (E.D. Mo. 1995). 632 Id. at 640. 633 Id. at 640-641. 634 Id. at 641.

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238 detained outside of the home before officers en tered. Police seized drugs and firearms, but the relative was ultimately not charged.635 The police did not limit where the reporters could film, neither did the Parkers request that the reporters not enter their home.636 In order for the Parkers to recover agains t KSDK under the federal statute, they had to demonstrate that KSDK violated plaintiffs constitutional rights under color of state law.637 Applying the Eighth Circuit U.S. Court of App eals requirement of a mutual understanding, or meeting of the minds, between the private party and the state actor,638 the court ruled that the journalists were not state actors for the pur poses of 42 U.S.C. 1983. The court wrote: The record in this case yields no evidence to support such a mutual understanding or purpose on the part of the KSDK personnel and the police officer s who conducted the search. The undisputed evidence indicates th at the KSDK personnel had been allowed to ride along with Mobile Reserve Unit officers during their shift, a nd that when, in the course of that shift, a determin ation was made to execute this particular search warrant, the KSDK personnel came along. The passivity of th is circumstance demonstrates the absence of any affirmative agreement between KSDK and the police concerning the particular conduct of KSDK which plaintiffs now challenge.639 The court, therefore, granted KSDK summary judgment on the 1983 claims.640 The court declined, however, to grant summary judgment on th e state tort claims, holding that these claims should be adjudicated in state court.641 On appeal, the Eighth Circuit affirmed the district courts grant of summary judgment to KSDK.642 635 Id. 636 Id. 637 Id. at 642 (citing Adickes, 398 U.S. at 150). 638 Id. (quoting Mershon v. Beasley 994 F.2d 449, 451 (8th Cir. 1993)). 639 905 F. Supp. at 642. 640 Id. at 643. 641 Id. at 646. 642 Parker v. Boyer, 93 F.3d 445, 448 (8th Cir. 1996). The appellate court did, however, reverse the district courts grant of summary judgment to the police officers. Id.

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239 In one of the best known federal ride along cases, Berger v. Cable News Network, Inc ,643 officers of the U.S. Fish and Wildlife Service allowed reporters from CNN to accompany them on the execution of a search warrant at the Bergers Montana ranch.644 CNN later broadcast the arrest of the Bergers on its nightly news program.645 In filing the suit, the Bergers alleged that CNN violated their constitutional right against un reasonable searches and seizures. They also claimed that the station violated the federal wi retap statute, as well as claiming trespass and conversion.646 The court found that the Bergers cons titutional claims were barred by collateral estoppel.647 Collateral estoppel bars a party from re litigating an issue dete rmined against that party in an earlier action.648 The court in the Berger criminal case ruled that the search did not violate the Fourth Amendment; the civil court rule d that this decision barr ed Berger from again arguing that their Fourth Amendment ri ghts were violated in the search.649 The court ruled that CNN was not acting under color of law when it filmed the raid on the Berger ranch, When a private party, such as CNN, is present during a s earch as a means of furthering its own interests, it is not acting under color of fede ral law and is not liable under Bivens .650 643 1996 U.S. Dist. LEXIS 22524 (D. Mont. 1996). 644 Id. at *3. 645 Id. 646 Id. The Bergers also claimed intentional infliction of emotional distress, which is beyond the scope of this research. 647 Id. at *7. 648 Blacks Law Dictionary 108 (2d ed. 2001). 649 1996 U.S. Dist. LEXIS 22524 at *8. Because the constitutionality of the search has already been litigated, the causes of action based on the constitutionality of the search are barred by collateral estoppel. Id. 650 Id. at *9. See also, Nichols v. Hendrix 19999 U.S. Dist. LEXIS 23347, *8 (N.D. Ga. 1999) (finding plaintiffs agree that the media defendants were there solely for th eir own purposes. The fact th at the media defendants were invited to accompany the officers and to film the raid is not enough to turn the defendants into state actors).

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240 Quickly disposing of the wiretap claim, th e court found that because the federal agents had consented to CNNs recordings of their conv ersations, the station had not violated 18 U.S.C 2511.651 The court further rejected the Berger s request for an injunction against CNN broadcasting or selling any more of the footage from the search.652 Additionally, the court ruled that the photographs, taken by CNN, of the Berger s could not be the subjects of a conversion.653 In addition, the court dismissed the Bergers trespass claim on the grounds that CNN had permission to enter the property from the govern ment, which was in control and possession of the property during the executi on of the search warrant.654 The court granted CNN summary judgment.655 On appeal, the Ninth Circuit ruled th at the media was only entitled to summary judgment on the wiretapping claims, but not for the Fourth Amendment, trespass or conversion claims, finding that CNN and the federal agents had acted jointly to enter the Berger property.656 Although the U.S. Supreme Court has not dir ectly ruled on a case against the news media for ride-along activities, the Court has men tioned that ride-alongs violated the Fourth Amendment. In Wilson v. Layne ,657 the Court held that a newspaper reporter and photographers ride-along with federal marshals, during the executi on of a search warrant, did violate the Fourth 651 1996 U.S. Dist. LEXIS 22524 at *10. For a full discussion of the federal wiretap statute, see Chapter 3. 652 Id. at *12. The court ruled that this injunction carried a heavy presumption against its constitutional validity. Id. (quoting CBS, Inc. v. Davis, 510 U.S 1315, 1317 (1994)). 653 Id. at *14. A conversion is the wrongful possession or disposition of anothers property. BLACKS LAW DICTIONARY 144 (2d. ed. 2001). 654 Id. at *15. The court also noted, citing Desnick that CNN did not invade any property interests. Id. at *16. 655 Id. at *19. 656 Berger v. Hanlon, 188 F.3d 1155, 1157 (9th Cir. 1999). It should be noted that the Bergers cases against the federal agents went to the U.S. Supreme Court, in Berger v. Hanlon 526 U.S. 808 (1999), which reversed the judgment of the Ninth Circuit in Berger v. Hanlon 129 F.3d 505 (9th Cir. 1997), affirming the district court. On remand the Ninth circuit gave the opinion reported here. 657 526 U.S. 603 (1999). This opinion was given on the same day as the Berger opinion.

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241 Amendment. Because the law on ride-alongs was not clearly esta blished, however, the officers were entitled to qualified immunity.658 Charles and Geraldine Wilson sued federal marshals, who raided their home while executing a warrant for their son, contending that the officers violated the Wilsons Fourth Amendmen t rights by bringing members of the media to observe and record the attempted execution of the arrest warrant.659 The trial court denied the officers claim of qualified immunity. The federa l appellate court revers ed, but did not decide whether the officers actions vi olated the Fourth Amendment.660 The U.S. Supreme Court affirmed the Ninth Circuit, holding that it was not unreasonable for a police officer in April 1992 to have believed that bringing media observers along during the execution of an arrest warrant (even in a home) was lawful.661 The Court reasoned that [a]ccurate medi a coverage of police activitie s serves an important public purpose.662 Because of this, it may not have been obvi ous that allowing the media to film a raid violated constitutional principles. Also, the Court found no opinions holding ride alongs to be unlawful.663 Finally, the policy of the U.S. marshals and state law enforcement allowed media to 658 Id. at 605. 659 Id. at 608. The media never published the pictures they took during the raid, and the Wilsons did not bring suit against the reporters. 660 Id. It concluded instead that because no court had held (at the time of the search) that media presence during a police entry into a residence violated the Fourth Amendment, the right allegedly violated by petitioners was not clearly established and thus qualified immunity was proper. Id. (citing Wilson v. Layne 141 F.3d 111 (4th Cir. 1998). 661 526 U.S. at 615. 662 Id. 663 Id. at 616. The only published decision directly on point was state intermediate court decision which, though it did not engage in an extensive Fourth Amendment analysis, nonetheless held that such conduct was not unreasonable. Id. (citing Prahl 295 N.W.2d at 782). The Court meant that no cases at the time of the raid in 1992 had found allowing media on the execution of a search warrant to be unconstitutional. In 1998, the Southern District of Texas held that a Drug Enforcem ent Administration officer, who allowed a camera crew to accompany her as she executed a search warrant to seize records at two drug clinics, violated the clinic owners constitutional rights. Swate v. Taylor 12 F. Supp. 2d 591, 593 (S.D. Tex. 1998). C.f Stack v. Killian, 96 F.3d 159 (6th Cir. 1996)(finding no violation of constitutional rights b ecause the search warran t authorized videotapin g and photographing).

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242 accompany officers on home entries. According to the Court, this demonstrated that the law on ride alongs was not developed.664 The Court, therefore, ruled that the officers had qualified immunity. In spite of this ruling, the C ourt held that ride-alongs violated the Fourth Amendment. The court reasoned that although th e arrest warrant allowed officers to enter the Wilson home, this access did not extend to journalists.665 Recognizing that every action that officers take while searching a home did not have to be authorized by a search warrant, the Court found that the Fourth Amendment required their actions to b e related to the objectives of the authorized intrusion:666 Certainly the presence of reporters inside the home was not related to the objectives of the authorized intrusion. Respondents concede th at the reporters did not engage in the execution of the warrant, and did not assist the police in their task. The reporters therefore were not present for any reason related to th e justification for police entry into the home the apprehension of Dominic Wilson.667 The Court rejected the officers three argum ents of legitimate purposes for allowing the media to accompany law enforcement. Ruling th at although allowing journalists on ride-alongs may further the objectives of law enforcement, this was not the same thing as furthering the purposes of the search. Were such generali zed law enforcement objectives themselves sufficient to trump the Fourth Amendment, the pr otections guaranteed by that Amendments text would be significantly watered down.668 Similarly, the Court found that although the media could possibly serve a quality c ontrol purpose while participati ng in a ride along by collecting 664 Id. at 617. 665 Id. at 611. 666 Id. 667 Id. This is not a case in which the pr esence of the third parties directly aided in the execution of the warrant. Id. 668 Id. at 612.

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243 evidence that officers acted legally, the reporters in this case were not in terested in protecting officers.669 Even the officers First Amendment related ar gument, that the pres ence of third parties could serve the law enforcement purpose of public izing the governments efforts to combat crime, and facilitate accurate reporting on la w enforcement activities, was not persuasive.670 While recognizing that its previ ous opinions noted the press ro le in informing the public about the administration of criminal justice, the Court ruled that the First Amendment did not outweigh the rights protected by the Fourth Amendment.671 No one could gainsay the truth of these obs ervations, or the importance of the First Amendment in protecting pre ss freedom from abridgement by the government. But the Fourth Amendment also protects a very importa nt right, and in the present case it is in terms of that right that the me dia ride-alongs must be judged. Surely the possibility of good public relations for the police is simply not enough, standing alone, to justify the ride-al ong intrusion into a private home. And even the need for accurate reporting on police issues in general be ars no direct relation to the constitutional justification for the police intrusion into a home in order to execute a felony arrest warrant.672 In spite of the U.S. Supreme Courts ru ling that ride-alongs violated the Fourth Amendment, media liability in ride along cases still depends upon a finding that the reporters were acting under color of state la w. Private individuals will be deemed as acting under color of stat law if they willfully participate in joint actio n with government agents.673 In Brunette v. Humane Society of Ventura County,674 the Ninth Circuit discussed three possible tests for finding 669 Id. at 613. 670 Id. at 612. 671 Id. at 613. 672 Id. 673 ERWIN CHEMERINSKY, FEDERAL JURISDICTION 8.3 (2003) (citing Dennis v. Sparks 449 U.S. 24, 27 (1980). 674 294 F.3d 1205 (9th Cir. 2002).

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244 if newspaper reporters engaged in state action. Glenda Brunette sued the Humane Society and the Ojai Publishing Company, alleging violations of her constitutional rights as well as trespass and invasion of privacy, after the Humane Society invited repo rters to accompany it during the execution of a search warrant on Brunettes ranch.675 Brunette settled her suit against the Humane Society, but the reporters file a moti on to dismiss for failure to state a claim.676 The trial court granted the newspapers motion.677 On appeal, the Ninth Circuit ruled that in order for Brunette to prevail on her claims, she had to demonstrate a significant relationship between the Humane Society and the reporters.678 The court dismissed Brunettes argument that Wilson provides for a 1983 lia bility against the media for participating in a sear ch of her ranch. Distinguishing Wilson, the court found that case to speak only on the liability of officers and not the reporters.679 To find the journalists liable, Brunette had to demonstrate that the reporters were willful particip ant[s] with the state.680 Under the joint action test, Brunette had to prove that the journalists actions were inextricably intertwined with those of the government.681 Brunette argued that her case was like Berger but the court rejected this contenti on. The reporters did not contract with the Humane Society to accompany it on the raid. Further, the reporters did not plan the raid.682 In addition, the court 675 Id. at 1208. 676 Id. at 1209. 677 Id. 678 Id. 679 Id. at 1211. [Wilson] provides no assistance in deciding whether the Media engaged in joint action sufficient to convert it into a state actor. Id. 680 Id. 681 Id. 682 Id. at 1212.

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245 found that the Humane Society did nothing to facilitate the Medias news gathering mission.683 Brunette could not, therefor e, prove state action unde r the joint action test. The Ninth Circuit also dismissed Brunettes argument under the symbiotic relationship test, which requires the plaintiff to prove that the government has so far insinuated itself into a position of interdependence (with a private entity) that it must be recognized as a joint participant in the challenged activity.684 The court ruled that Br unette did not establish a symbiotic relationship between the Humane Societ y and the media. She did not prove that the groups were financially interdependent, nor that the Media rendered any service indispensable to the Humane Societys continued financial viability.685 The court did acknowledge that a custom and usage allowance existed betw een the Humane Soci ety and the press: What Brunette did allege was a long-standing custom by the Humane Society to allow the Media to observe and photograph the execution of search warrants. This custom, Brunette asserted, ensured that the Hu mane Society received free pub licity and the Media received a steady source of sensational stories. These allegations, even if true, do not demonstrate that the Humane Society or the Media is indispensable, in any way, to the others continued business operation or financial success.686 Finally, the court rejected Brunettes argumen t of state action by th e media under the public function test, which transforms private activity into state action if that action has been traditionally the exclusive prerogative of the State.687 The Ninth Circuit ruled, News 683 Id. Although simultaneously present at Brunettes ranch, the Humane Society and the Media acted independently. Id. 684 Id. at 1213 (quoting Burton v. Wilmington Parkg Auth ., 365 U.S. 715, 725 (1961)). 685 Id. 1214. 686 Id. 687 Id. (citing Jackson v. Metro. Edison Co ., 419 U.S. 345, 353 (1974).

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246 gathering is the quintessential private activity, jealous ly guarded from impermissible government influence.688 Therefore, the court affirmed the dismissal of Brunettes claims.689 In cases where journalists have been sued for accompanying law enforcement officers while executing warrants, the courts have focuse d on balancing the indivi duals right of privacy and the journalists right to gather news. For the most part, th e courts have ruled that when officers and journalists were acti ng jointly the journalists could be held liable for violating a plaintiffs rights by intrusion or trespass. This was because officers are bound by the scope of the warrant, which did not allow private third part ies to enter the property of the individual being investigated. Warrantless investigations The media have also been sued for accompanying law enforcement on warrantless investigations and arrests. Warra ntless investigations are those in which officers are called to the scene of a crime to make an arrest or to i nvestigate the circumstances of an event. In Reeves v. Fox Television Network ,690 for instance, Willie Reeves filed a 42 U.S.C. 1983 suit against the television network and th e producers of the show COPS claiming invasion of privacy and trespass, among other violations.691 Reeves claim stemmed from th e filming of his arrest inside of his home when a camera cr ew followed police inside.692 The network defendants argued that 688 Id. 689 Id. at 1214. C.f. Carr v. Mobile Video Tapes, Inc 893 S.W.2d 613 (Tex. Ct. App. 1994) (denying summary judgment to media defendants for trespass and intrusion stemming from a ride along with a Humane Society investigator). 690 983 F. Supp. 703 (N.D. Ohio 1997). 691 Id. at 707. Reeves also claimed appropriation, private facts, false light, intentional and negligent infliction of emotional distress. Id. 692 Id.

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247 Reeves could not claim trespass and intrusion because he allowed the camera crew into his home.693 The court found that the videot ape of the arrest and Reeves deposition demonstrated that Reeves consented to the camera crew entering his home and filming.694 Reeves argued, however, that Prahl supported the contention that unless a homeowne r gives specific oral consent to each person in a gr oup of people that enter his home after the homeowner opens his door to let them in, every person after the fi rst person to enter the home is a trespasser.695 The court found this argument unpersuasive, instead finding the videotapes showed that Reeves consented to the camera crews presence, and therefore, there was no intrusion or trespass.696 Unlike the Reeves court, which declined to find that a television crew violated a mans civil rights when it entered hi s house with police officers, the federal district court for the Southern District of Ohio ruled that 1983 was applicable to a television station.697 In Barrett v. Outlet Broadcasting, Inc ., the children of a suicide victim sued police and a television station after reporters entered th eir mothers home and took pictures of her dead body. The reporters, on a ride-along with the homicide squad, accompanied officers into the womans home after officers asked permission from someone living inside in the house.698 Assisted by police, the reporters were able to enter the victims private bedroom and take pictures of the victims naked torso.699 693 Id. at 712. 694 Id. 695 Id. at 713. 696 Id. The court also dismissed Reeves claim that he consented under duress. Id. 697 Barrett v. Outlet Broad., Inc., 22 F. Supp. 2d 726, 739 (S.D. Ohio 1997). 698 Id. at 731-732. 699 Id. at 733.

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248 The victims children sued under 42 U.S.C. 1983, claiming the reporters had violated their Fourth and Fourteenth Amendmen t rights, as well as trespass. The court denied the stations motion fo r summary judgment on the 1983 claim. According to the court, if a party is jointly e ngaged with state officials in a prohibited action, they are considered to be ac ting under color of state law.700 Here the court found that the reporters had entered into an agreement with po lice that allowed them access to the crime, which they otherwise would not have been able to view.701 The police could be viewed as having assisted the media in newsgathering, according to the court.702 Additionally, the suicide victims children had a right to privacy under the F ourth Amendment because the children had a legitimate expectation of priv acy in their mothers house.703 The children kept clothing at the house, visited frequently and had keys. The court also found that law enforcement of ficers may exceed their authority to control a crime scene when they allow the reporters, who are not present for any law enforcement purpose, to enter the premises.704 In this case, the court concluded the reporters did not enter the home for any law enforcement purpose.705 Further, police actually he lped to stage some of the scenes photographed by reenacti ng the search for the woman s identity and uncovering her body.706 700 Id. at 735. 701 Id. 702 Id. 736. 703 Id. at 736-737. 704 Id. at 737. 705 Id. 706 Id. at 738.

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249 On the issue of consent vitiating the plain tiffs claims, the court found that even it the man residing at the house, a son of the victim, ga ve consent for the report ers to enter the house, there was no evidence that the police informed him that the reporters were there to film the body.707 It was unreasonable for the reporters and po lice to think that he gave permission for them to go into the womans bedroom and film her body.708 As such, the court ruled that the reporters were not entitled to summary judgmen t for trespass because they entered at the invitation of police who had only a limited i nvitation resulting from a call to 9-1-1.709 The police did not show that their limited invitati on included permission to bring reporters.710 Similar issues involving the presence of th e electronic media when police parade criminal suspects in front of cameras for publicity purposes. Plaintiffs have sued the media in these situations also. In Jones v. Taibbi ,711 for instance, a reporter made a deal with police allowing him to film the arrest of an alleged murderer. When police arrested the man and searched his home and car, they allowed the reporter to film.712 The plaintiff, Peter Jones, sued the reporters broadcast station claiming invasion of privacy, defamation and a violation of his civil rights under the federal civil rights statute.713 Although remanding the state tort claims, de famation and invasion of privacy, the court granted summary judgment to the reporte r on Jones federal civil rights claim.714 According to 707 Id. at 739. 708 Id. 709 Id. at 746. 710 Id. 711 508 F. Supp. 1069 (D. Mass. 1981). 712 Id. at 1071. 713 Id. at 1070. 714 Id. at 1074-1075.

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250 the court, the reporters agreement not to reveal what he knew in exchange for permission to film Jones arrest was not state action. There was no symbiotic relationship between officers and the reporter.715 The court found that the police played no role in what the reporter would publish, and the reporter was not involve d in planning Jones arrest.716 The court ruled that the journalist acted as the typical at large reporter, who r outinely learns details pe rtaining to ongoing police investigations.717 In this case, the cour t found that the reporter bal anced his First Amendment responsibilities as a reporter with his least equally compelli ng responsibilities as a citizen.718 To rule the reporter liable under the civil rights statute would establish a precedent inconsistent with the public interest, which includes both a right to know, and a right to effective law enforcement.719 Other First Responders News media outlets also face lia bility for ride-alongs with other first responders such as paramedics or crisis intervention teams. These joint activities allow journalists to examine the duties of non-law enforcement responders, and allo w reporters access to public events such as accidents and health crisis. This access by report ers has, however, implications for the privacy of those involved. In Miller v. NBC ,720 for example, a camera crew followed paramedics into the home of a heart attack victim. The camera cr ew was filming the paramedics as part of a documentary series, and entered the home without the consent the victims wife, who was home 715 Id. at 1073. 716 Id. 717 Id. at 1074. 718 Id. 719 Id. 720 232 Cal. Rptr. 668 (Cal. Ct. App. 1986).

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251 at the time.721 The mans wife sued for trespass and intr usion, as well as inte ntional infliction of emotional distress. 722 At trial, the court granted su mmary judgment to the media on all claims.723 On appeal, the court used traditional intrusi on and trespass analysis to hold that summary judgment for NBC was inappropriate because a r easonable jury could view the camera crews entry into the home, under the ci rcumstances, as highly offensive.724 Like other court decisions involving intrusion, the Miller court noted it was up to a jury to determined if an intrusion was highly offensive to a reasonable person.725 The court, however, made a preliminary determination of offensiveness based on factors like the degree of intrusion, the context, conduct and circumstances surrounding the intrus ion as well as the intruders motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.726 The court found, Here reasonable people c ould construe the lack of restraint and sensitivity [the NBC crew] displayed as a cavalie r disregard for ordinary citizens rights of privacy, or, as an indication that they consider ed such rights of no particular importance.727 The camera crew not only entered the plaintiffs home, but intruded into her bedroom in order to film the paramedics as they attempted to save he r husband. The court rule d, therefore, that the plaintiff was entitled to a jury verdict on her intrusion claim.728 721 Id. at 670. 722 Id. The mans daughter file similar claims; the court found that the daughter had no claims. Id. at 682. 723 Id. at 672. 724 Id. at 679. 725 Id. at 678. 726 Id. at 679. 727 Id. 728 Id.

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252 Further, the court held th at NBCs obligation not to en ter private property without permission did not place a burden on the press, nor did it have a chilling effect on the press exercise of the First Amendment.729 We conclude, in the case before us, that the obligation not to make unauthorized entry into the private premises of individuals like the Millers does not place an impermissible burden on newsgatherers, nor is it likely to have a chilling effect on the exercise of First Amendment rights. To hold otherwise might ha ve extraordinarily chilling implications for all of us; instead of a zone of privacy protecting our secluded moments, a climate of fear might surround us instead. Others besides the media have rights, and those rights prevail when they are considered in the context of the events at the Miller home.730 The court also held that Miller had properly stated a claim for tr espass. The court ruled that the stations newsgathering motivations were irre levant because its trespass was intentional.731 In a case similar to Miller the federal court for the Northe rn District of California found that a camera crew had not invaded the privacy of a woman when they entered her home with a crisis intervention team.732 In Baugh v. CBS, Inc., a camera crew for CBSs Street Stories joined a mobile crisis intervention team on a call to the Baugh residence. 733 Yolanda Baugh had called police to report her husband for domestic vi olence; the crisis team responded with police.734 When police and the crisis team entered Ba ughs home, accompanied by the camera crew, Baugh inquired about the camera crews identity. Reported ly, an officer informed her that the crew was from the district attorneys office. Relying on this information, Baugh allowed the camera crew to enter.735 Baugh did, however, tell the cameraman not to film her, and she was assured that he 729 Id. at 684. 730 Id. 731 Id. at 677. 732 Baugh v. CBS, Inc., 828 F. Supp. 745 (N.D. Cal. 1993). 733 Id. at 750-752. 734 Id. at 751.

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253 would not.736 CBS later aired the footage shot in the Baugh home for their news documentary program. Baugh sued CBS for invasion of privacy by intrusion and trespass.737 The court dismissed Baughs claim for intrus ion and trespass based on the fact that she consented to CBS entering her home.738 As in other trespass cases, the court noted that consent was an absolute defense to any intentional tort. Baugh gave consent for the camera crew to enter her home. She, therefore, had no remedy for trespass or intrusion.739 Perhaps one of the most best known first responder ride-along cases is Shulman v. Group W. Productions, Inc .740 Shulman arose when a documentary film crew rode along with a medical helicopter team to a car accident where two memb ers of the Shulman family were injured. The camera crew filmed both the rescue and the medical care on scene and within the helicopter. In addition, the flight nurse wore a microphone that recorded conversations with Shulman at the scene.741 The footage and sound were later broadcast as part of a documentary.742 Shulman sued for intrusion.743 The trial court granted summary j udgment to the camera crew based on the 735 Id. 736 Id. at 752. 737 Id. at 750. Baugh actually sued for three invasion of privacy torts; the court, however, dismissed her claims of appropriation, but granted CBSs motion for summary judgment on the private facts claim. Id. 738 Id. at 756-757. 739 Id. at 757. 740 955 P.2d 469 (Cal. 1998). 741 Id. at 474-475. 742 Id. at 475. 743 Id. The California Supreme Court affirmed the trial court s grant of summary judgment to the press on Shulmans public disclosure claim.

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254 First Amendment, but the appellate court revers ed. The California Supr eme Court affirmed the appellate courts ruling on the intrusion claim.744 Noting that Miller was the leading case on intrusion, th e court ruled that Shulman had to prove that the camera crew intruded into a privat e place and that it was highly offensive to a reasonable person.745 Although the court concluded that the cameramans presence at the accident scene was not intrusive, it ruled that th ere was a triable issue of fact as to whether Shulman had a reasonable expectatio n of privacy within the helicopter.746 The court found that Shulman was entitled to privacy in her conversations with the flight nurse at the scene, and in the information being relayed about her.747 Agreeing with the Miller court, the Shulman court considered the circumstances, the degree of intrusion and setting and the intr uders motives to determine offensiveness.748 The court noted that the intruders motivation was important especially when the intruder was a member of the press.749 In deciding whether a reporters intrusion was offensive, courts must consider the extent to which the intrusion was, under the circumstances justified by the legitimate motive of gathering the news. Informati on-collecting techniques that may be highly offensive when done for socially unprotected r easonsfor purposes of harassment, blackmail or prurient curiosit y, for examplemay not be offensive to a reasonable person when employed by journalists in pursuit of a socially or politically important story.750 744 Id. 745 Id. at 489-490. 746 Id. at 490. 747 Id. at 491. 748 Id. at 493. 749 Id. 750 Id.

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255 The court ruled, however, that a repo rters pursuit of a story did not justify an intrusion, but that offensiveness depended on the method of investigation.751 The court concluded that a reasonable jury could find that the recording of Shulman s conversations with the flight nurse, and the filming of Shulman in the helicopter were offensive.752 Further, the court held, [T]he press in its newsgathering activities enjoys no immunity or exemption from generally applicable laws.753 The California invasion of privacy law was a law of general applicability, therefore, the cameram an had no constitutional privilege to eavesdrop on Shulmans conversations.754 According to the court, the conduct of journalism does not depend on the use of secret devices to record private conversations.755 [T]he constitutional protection accorded news gathering, if any, is far narrower than protection surrounding the publicati on of truthful material; cons equently, the fact that a reporter may be seeking newsworthy mate rial does not in it self privilege the investigatory activity. The reason for the difference is simple: The intrusion tort, unlike that for publication of private facts, does not s ubject the press to liability for the contents of its publications. Newsworthiness, as we stated earlier, is a complete bar to liability for publicationThe same deference is not due, ho wever, when the issue is not the medias right to publish or broadcast what they choose, but their right to intrude into secluded areas or conversations in pursuit of publishable material. At most, the Constitution may preclude tort liability that would place an impermissible burden on newsgatherers by depriving them of thei r indispensable tools.756 The court found no constitutional protection for intrusion.757 751 Id. at 494. 752 Id. 753 Id. at 495. 754 Id. 755 Id. (citing Dietemann 449 F.2d at 249). 756 955 P.2d at 496. (citations omitted). 757 Id. at 497.

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256 Other Joint Activities Wi th Gove rnment Officials The press has faced claims for liability ba sed on government officials allowing reporters entry into other areas in whic h they are not wanted. In Holman v. Arkansas ,758 for example, a man filed a suit for invasion of privacy and other civil rights vi olations after police allowed a reporter to record the ma ns screaming and banging in a jail.759 Marvin Holman and his wife were arrested for drivi ng while intoxicated and taken to ja il. While in the cell, Holman was hitting and banging his ce ll door, hollering and cursing.760 A nearby radio station called the jail to inquire about the noise, and police informed them that it was an intoxicated individual. The radio station sent over a reporter, whom th e officers allowed into the cell block to record Holmans behavior.761 The court held that there was no invasi on of privacy because Holman made his statements loudly and in a manner to attract attention.762 Holman had no expectation of privacy while banging and shouting. Further, the court rule d that there could be no invasion of privacy when police allowed the publicati on of an official act, in this case, Holmans arrest and detention.763 [The reporter] could not be prevented from reporting the statements he could so easily over hear aurally; use of a device to record them cannot create a claim for invasion of privacy when one would not otherwise exist.764 758 610 F.2d 542 (8th Cir. 1979). 759 Id. at 543. 760 Id. 761 Id. at 543-544. 762 Id. at 544. 763 Id. See also Smith v. Fairman 98 F.R.D. 445 (C.D. Ill. 1982) (holding that an inmate had a limited expectation or privacy). 764 Id. at 545.

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257 In contrast, in Huskey v. NBC, Inc .,765 a federal district court ruled that prison inmates did have a legitimate expectation of privacy to be free from intrusion.766 Arnold Huskey, an inmate at the Marion, Illinois United States Penitentiary sued NBC after a camera crew, authorized to film in the prison by the warden, filmed him while he was alone in the prisons exercise yard.767 NBC had previously agreed to follow federa l regulations prohibiting the photographing of filming of inmates without their consent.768 While in the exercise yard, Huskey wore only gym shorts, exposing his tattoos. Acco rding to the court, His expecta tion was that the only ones able to see him would be persons to whom he mi ght be exposed as a n ecessary result of his incarceration.769 Huskey sued NBC for invasion of privacy. NBC argued that there was no intrus ion because Huskey was not secluded.770 Rejecting this argument, the court found that the mere fact a person can be seen by others does not mean that person cannot legally be secluded.771 The ability of other pris oners and prison officials to see Huskey did not deny him his right to seclusio n. According to the cour t, prisons were closed systems where inmates can feel secluded from th e outside world, while at the same time visible to those inside.772 It was for a jury, however, to determ ine whether the exercise yard was such a place where Huskey could reasonably feel secluded.773 Further, determining whether a prisoner 765 632 F. Supp. 1282 (N.D. Ill. 1986). 766 Id. at 1292. 767 Id. at 1285. 768 Id. 769 Id. 770 Id. at 1287. 771 Id at 1287-1288. 772 Id. at 1288. 773 Id.

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258 had a reasonable expectation of privacy required balancing Huskeys expectation of privacy with the prisons security interests, which, according to the court, NBC is in no position to assert. 774 Because NBC broke its promise not to film prisoners without their permission, NBC could not argue that it was assis ting prison officials by filming.775 Further, although prisoners may expect large doses of intrusion from prison offi cials, [] it does not in the slightest pare down prisoners right to be free from private intrusions.776 Therefore, the court ruled that Huskey had a valid claim for intrusion. In Holman the prisoner could claim no reasonable expectation of privacy because he behaved in a manner so as to draw a ttention. In contrast, the prisoner in Huskey could still claim an expectation of privacy because he was not behaving in a manner that drew attention. Further, although the prisoner in Holman did not know that a reporter wa s recording his yelling, he knew that he could be heard. The Huskey prisoner had no reason to believe that a non-prison official third party was viewing him. It seems then, in cas es involving media access to jails, if an inmate acts in a manner that a court would view as waiv ing his expectation of privacy, journalists may not be found liable for filming him in the areas of the jail usually considered private. Plaintiffs have also sued journalists who accompanied health inspec tors into the private areas of restaurants. In Belluomo v. KAKE TV,777 restaurant owners sued a television station for trespass after reporters en tered, and filmed, in the kitchen of a restaurant.778 Reporters accompanied a state food inspector as he inspecte d a steakhouse. Originally, the manger of the 774 Id. at 1291. 775 Id. 776 Id. at 1291-1292. 777 596 P.2d. 832 (Kan. Ct. App. 1979). 778 Id. at 835.

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259 restaurant consented to the reporters accompanying the inspector and filming.779 The manager later claimed that he was fraudulently induced to consenting, and the restaurant owner sent the station a letter revoking the managers consent.780 KAKE-TV used the footage in a report on the inspectors findings about the restaurant.781 A jury found that KAKE-TV had not trespassed. The Kansas appellate court affirmed. The appellate court found the issue on appeal was whether defendant was liable upon proof of damages resulting from tortious conduct, trespass, in its newsgathering.782 Citing Fletcher the court noted that consent wa s a complete defense to trespass.783 The court also cited Galella Dietemann, and Le Mistral to support the contention that the First Amendment did not protect journalists from liability for torts committed while newsgathering.784 According to the court, these cases demonstrate that an inju red party could recover compensatory damages resulting form the publication of inf ormation acquired by tortious conduct.785 In spite of this, and because the issue of whether KAKE-TV obtaine d viable consent was a question for a jury, the court affirmed the jury verdict.786 Conclusion In general, when the press in search of a story engages in conduct th at invades the rights of another, the courts have not always ruled favorab ly for the press. In in trusion cases, part of 779 Id. at 836. 780 Id. 781 Id. 782 Id. at 840. 783 Id. (citing Fletcher, 319 So.2d at 104). 784 596 P.2d at 841-843. 785 Id at 842. 786 Id. at 845.

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260 the courts analysis examines whether the individual was actually secluded. Different spheres of privacy have different levels of seclusion attache d. A persons home, for instance, is the ultimate sphere of privacy, where the press would almost certainly be found to have intruded. Once the individual steps out of the home, that sphere of privacy evaporates and he cannot claim a reasonable expectation of privacy. Because of this, the courts have repeatedly found that individuals filmed or photographed in most pub lic places cannot claim that the press intruded upon their seclusion. Many of the trespass cases also dealt with the publicness of property upon which the media is alleged to have trespassed. In cases where the courts have found the property open to the public, like the clinics in Desnick the courts have found no tr espass. On the other hand, when the property is considered to be exclusively private, the pr ess ends up on the losing end. If journalists can prove that the property owner consented, whether impliedly or expressly, the courts have found no trespass. That is, unless the press has misrepresented itself or committed some breach of loyalty. When journalists have misrepresented themselves in order to gain entry onto private property the consent of the property owner is vitiate d, and the courts may find that the reporters trespassed. Further, the First Am endment has not been a shield against trespass actions. In Le Mistral for example, the court found that First Amendment guarantee of a free press came with the responsibility not to infringe on the rights of others. In addition, the courts have found that the First Amendment did not ab solve reporters from punishment for violating criminal trespass statutes. Although the property entered might have been considered public, the government could still set reason able restrictions and was not re quired to offer special rights of access to the press that were not given to memb ers of the public. The U.S. Supreme Court has

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261 ruled, however, that even information gathered during a trespass could not be enjoined from publication, except for in extreme circumstances. The joint activity cases also considered the issue of consen t to enter private property. The courts have found that officers who allo wed journalists to accompany them during the execution of a warrant have exceeded the scope of the warrant, and therefore violated the property owners civil rights. Although the U.S. Supreme Court has ruled that allowing journalists to accompany law enforcement officer s during the execution of a warrant may violate the Fourth Amendment, these cases usually hinge on whether the media will be viewed as a joint actor with law enforcement. The press may also be liable for injury to an individuals privacy or there interests when accompanying other first responders into home s or into areas where their subjects may have a reasonable expectati on of privacy. In these cases, as in Miller the courts may analyze circumstances surrounding the degree, context and motives surrounding the intrusion. In deciding other ca ses involving join t activities between jour nalists and government officials, the courts have used traditional intr usion and trespass analysis, considering, as in Huskey, whether the plaintiff had a reasonabl e expectation of privacy, or as in Belluomo whether the property owner had consented to the complained of trespass.

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262 CHAPTER 5 MISREPRESENTATION AND BREACH OF PROMISE In September 1983, a municipal court judge found Carla Cantor, a reporter, guilty of impersonating a public official, a violation of New Jersey law.1 When interviewing the mother of a homicide victim, Cantor, allegedly, identifie d herself as a county o fficial and then asked intimate questions about the victim.2 After again being convicted of impersonation during a new trial, Cantor appealed, and argue d that the New Jersey statute ha d to be interpreted to avoid infringing provisions of the federal and state constitutions which shelter newsgathering activity from governmental intrusion.3 The New Jersey Supe rior Court disagreed. The New Jersey statute stated that a person falsely impersonates a public official if he falsely pretends to hold a positi on in the public service with pur pose to induce another to submit to such pretended official authority or ot herwise to act in reliance upon that pretense.4 According to the court, the statute prohibited ex actly the behavior of which Cantor was accused.5 Further, the court ruled that the First Amen dment did not immunize the press from the application of general laws and [was] no special privilege to invade the rights and liberties of others.6 Although acknowledging that the government had to respect the press right to 1 State v. Cantor, 534 A.2d 83, 84 (N.J. Super. Ct. App. Div. 1987). 2 Id. Cantor denied ever identifying herself as a public official. Id. 3 Id. at 85. Cantor also argued that she was denied due pr ocess; due process is, however, beyond the scope of this study. 4 N.J. STAT. ANN. 2C:28-8 (1987). 5 534 A.2d at 85. 6 Id. (citing Curtis Pub. Co. v. Butts 388 U.S. 130, 150 (1967), a defamation case in which the U.S. Supreme Court ruled that a public figure had to prove that defamatory statements made about them were published as a result of irresponsible reporting).

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263 newsgather, the court noted the ruling in State v. Lashinsky,7 in which a reporter was convicted of disorderly conduct for failure to leav e the scene of an accident, which states: In this framework, a balancing of competing values is required in order to assess the reasonableness of a criminal statute or govern mental sanction as applied to a member of the press engaged in his prof ession. The Constitution does no t serve to place the media or their representatives above the law. They ar e subject to the law, as any citizen. The converse proposition would be interolerable. But, the status of an individual as a newsperson seeking news is a weighty factor in the equation for applying the laws strictures.8 Applying the New Jersey S upreme Courts reasoning in Lashinsky the Cantor court found that Cantors status as a reporter did not protect her from the application of the criminal laws forbidding the false impersonation of a public o fficial, especially when she preyed upon someone in a fragile emotional state.9 The court found unpersuasive Cantors argumen t that the trial judge should have used a heightened standard of review. According to the court, the tr ial judge used beyond a reasonable doubt, the standard for criminal cases,10 and there was no basis for imposing a higher standard.11 The court also rejected Cantors assertion that it sh ould inquire into whether a reporter was motivated by actual malice, the constitutional standard applied in libel cases, when the journalist is accused of violating the New Jersey criminal impersonation law.12 Because 7 404 A.2d 1121 (N.J. 1979). 8 Id. at 1128. 9 534 A.2d at 86. 10 The most common standard of proof for plaintiffs in civil cases is a preponderan ce of the evidence, which means that the evidence presented at trial weighs in favor of the plaintiff. In criminal trials, the standard is beyond a reasonable doubt, which carries a much higher burden for the preponderance standa rd, and requires that the prosecution prove there case so that no reasonable man would have [a doubt] after hearing all the evidence in the case and the arguments of counsel, and after applying th e law to the case as in structed by the court. HAZEL B. KERPER, INTRODUCTION TO THE CRIMINAL JUSTICE SYSTEM 187-188 (1972). 11 534 A.2d at 86 12 Id.

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264 Cantor was on trial for a criminal action and not for civil libel the court found that in requiring proof beyond a reasonable doubt, Cantor was given more protection than a defendant in a libel action.13 The court, therefore, affirmed Cantors conviction for impersonating a public official. Cantor was accused of a misrepresentation that induced the homicide victims mother to provide sensitive information. The New Jersey state court was unpersuaded by her argument that the First Amendment protected her behavior Other journalists accused of fraud and or misrepresentation-like offenses have similarly attempted to evoke the First Amendment. This chapter explores these cases and how the courts have analyzed journalists First Amendment protection for newsgathering arguments. After considering the law on fraud, misrepresentation and similar offenses, this chapter then examines the Supreme Courts Cohen v. Cowles Media Co .14 opinion. The chapter then explores the post-Cohen cases, and th en concludes with a summary of the main issues involved in the disc ussion of journalists and misrepresentation-like offenses. On Fraud and Misrepresentation and Similar Offenses Also called deceit or fraud, misrepresentation is, at the most general level, a false statement of fact, opinion, inten tion or law. Private individu als have sued journalists for misrepresentation when, as in Cantor journalists have made false statements about things such as their identity, or their inten tions, in order to gather inform ation. In these cases against journalists, the plaintiff must prove five things in order to recover damages for misrepresentation: the journalist made a false st atement, the journalist knew the statement was 13 Id. According to the court beyond a reasonable doubt is one of the three standards of proof allowed under New Jersey law. Other than the standard required in treason cases, or the standard that a defendant was allowed to assert in cases where constitutional values are implicated, the court found no basis for applying a more stringent standard than reasonable doubt. Id. 14 501 U.S. 663 (1991).

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265 false, the journalist intended to induce the plainti ff to rely on the false statement, the plaintiff reasonably relied on the false statem ent, and the plaintiff was damage as a result of his reliance on the false statement.15 If the plaintiff does not prove these elements, he cannot recover damages. In Ramirez v. Time,16 for example, the New York Supreme Cour t dismissed a misrepresentation cause of action against Time Magazine for failure to state a claim after a plaintiff failed to allege that she was actually injured by a reporters misrepresentation.17 The case arose after the mysterious disappearance and death of a well know veterinarian. There was wi de speculation as to the cause of, and motive for, the veterinarians death and di sappearance in the local media. A reporter for Time called the veterinarian and left a message on her answering machine stating that he knew of a witness who had seen the dead veterinari an alive the day after she had disappeared.18 Upon hearing this message, a representative of the d ecedents estate went to the reporters office hoping to dispel the speculation that the doctor had been killed because of her connections to organized crime.19 Instead, the reporter admitted that the message he left was false, and then he used the information obtained from the estate re presentative as part of an article. The representative claimed the articl e distorted their information, a nd, in reckless disregard of the truth, spread a false story across the c ountry, allegedly fore closing government law 15 See W. PAGE KEETON, PROSSER AND KEETON ON TORTS 105 (5th ed. 1984). 16 12 Media L. Rep. 2230 (N.Y. Sup. Ct. 1986). 17 Id. at 2231. 18 Id. at 2230. 19 Id.

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266 enforcement action on behalf of the decedents family.20 The estate sued for defamation and fraudulent representation.21 The court found that in orde r to state a cause of action for fraud, the estate had to demonstrate representation of a material existin g fact, falsity, scienter, deception and injury. There must also be detrimental reliance by th e party to whom the misrepresentation was made.22 Although recognizing that the estate ba sed its fraud claim on the reporters false statement that he had a witness th at saw the decedent alive, the c ourt ruled that the plaintiff had not alleged any actual injury.23 The court stated, Other than meeting with [the reporter], plaintiff fails to allege that she did an ything whatsoever in reliance upon his alleged misrepresentation.24 Because the estate did not allege any injury derived from its reliance on the reporters misrepresentati on, the court dismissed the claim.25 Misrepresentation does not exist solely in false statements, but runs through many different kinds of torts including the related tort of breach of contract.26 In contrast to misrepresentations, which are false statements of past or present fact, contracts are created to enforce promises which are manifestations not on ly of a present intention to do or not to do something, but also of a commitment to the future.27 Therefore, breach of contract signifies the failure of a party to fulfill his promise, and in general, the creation of a misrepresentation. 20 Id. at 2231. Allegedly, the police ended their search for the veterinarian b ecause of the claims in the article. Id. 21 Id. Defamation is, however, beyond the scope of this study. 22 Id. (citations omitted) 23 Id. 24 Id. 25 Id. at 2232. 26 Prosser, supra note 15 at 105. 27 Id.

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267 Plaintiffs have also sued journalists for breach of promise, or contract, most of the time in cases in which the journalists have promised to keep the plaintiffs name confidential in exchange for information. For instance, in Doe v. ABC, Inc .,28 two rape victims and one of their boyfriends sued a broadcast station for breach of c ontract after the stati on failed to keep their identities anonymous. The station approached the rape victims for interv iews as part of its special report on rape, and gave repeated assurances that during the broa dcast neither their faces or voices would be recognizable.29 During both a commercial for the speci al report and the special report itself, both the voices and faces of the women were identifiable. After the special report aired, the women received calls from employers and family members.30 The trial court denied the stations motion for summary judgment; the court of appeals affirmed. But Doe does not demonstrate that news organi zations can never escape liability for breaching a promise. In a New York case brought a year later, the state appellate court ruled that in order for a plaintiff to recove r against a journalist for breach of confidence, the plaintiff had to demonstrate the reporter violated a constitutional standard of care.31 In Virelli v. GoodsonTodman Enterprises Louis Virelli sued a newspaper for br each of confidence, or breach of a promise made by a reporter, afte r the newspaper published an ar ticle entitled, Tormented by a Drug-Crazed Daughter. A reporter had promised Virelli that his family would not be identifiable in her story.32 Although the reporter used fictitious names, Virelli claimed that his 28 152 A.D.2d 482 (N.Y. Sup. Ct. App. Div. 1989). 29 Id. at 483. 30 Id. 31 Virelli v. Goodson-Todman Enter., 159 A.D.2d 23, 25 (N.Y. Sup. Ct. App. Div. 1990). 32 Id. at 24.

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268 family was clearly identifiable and that at least 38 pe ople identified the stor y as being about the Virelli family.33 The court dismissed this claim, ruli ng that Virelli had not proved that the newspaper was grossly irresponsib le without due consideration for appropriate news-gathering and reporting standards in allegedly disclosing plaintiffs identities in the subject article.34 Virelli demonstrates that the court may not always rule in favor of plaintiffs in their claims for breach of promise. The Virelli decision also demonstr ates that courts will not always provide a remedy for breach of promise to a news source who is the victim of a journalists broken promise. Plaintiffs are not limited, however, to sole ly using breach of contract or breach of promise actions to recover damages from journali sts who renege on their promises. Plaintiffs may also assert a claim of promissory estoppel, which makes any promise enforceable if that promise induced the plaintiff to act and the only way to avoid and injustice would be to enforce that promise.35 In both the Doe and Virelli cases, the plaintiffs coul d have claimed promissory estoppel in order to recover damages for the j ournalists broken promis es. Like breach of promise, promissory estoppel is very much relate d to misrepresentation in that both are claims that the defendant was acting in bad faith when he induced the plai ntiff to act. All three claims can, and have been alleged against journalists wh o have made promises or misrepresentations while in pursuit of information. Virelli demonstrates that some courts are allowing journalists to escape these claims by implicating constitutional st andards. Although not specifically claimed in Virelli, a news organization could claim First Amendment protection for breach promises or making misrepresentations while newsgathering. After the 1991 Supreme Court decision in 33 Id. 34 Id. 35 See RESTATEMENT (SECOND) CONTRACTS 90 (1981).

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269 Cohen v. Cowles Media Co., the First Amendment became less of a defense for journalists in breach of contract cases. The next section examines this decision. Cohen v. Cowles Media Co. On the eve of the 1982 Minnesota gubernator ial election, Dan Cohen, an associate of the Wheelock Whitney campaign, contacted reporters from the Minneapolis Star Tribune and the St. Paul Pioneer Press with information about Marlene Johnson, the opposition candidate for governor. Cohen offered to provide the inform ation upon the promise that the reporters not disclose his name as the source of the information.36 Both reporters promised to keep Cohens identity anonymous without disc losing that their promise of a nonymity was subject to approval by their editors.37 Cohen provided the reporters with c opies of public court records concerning Johnson. The first was a 13 year-old case in against Johnson for unlawful assembly for protesting the citys discriminatory construction hiring prac tices, which was later dismissed; the second was a conviction for petit theft for leavin g a story with $6 worth of sewing materials during a time when Johnson was grieving her fathe rs death. That case, too, was later vacated.38 After receiving this information, both newspapers interviewed Johnson, and further investigated the court records. Independently, the editors of the newspapers met and decided to publish Cohens name in conjunction with a story about Johnsons arrests.39 The next day, both newspapers published stor ies about the arrests citing Cohen as the source of the information. The same day, Cohen was fired from his job as a public relations 36 Cohen v. Cowles Media Co., 457 N.W.2d 199, 200 (Minn. 1990). 37 Id. 38 Id. at 201 fn. 2. 39 Id. at 201. According to the Minnesota Supreme Court, there was a great de bate amongst the staffs at the two newspapers as to whether to publish Cohens name. So reporters contended that the Johnson story, as a whole, was not newsworthy. Others viewed the story about the arrests as newsworthy, and that the story should be published along with Cohens name. Both original reporters objected to the publishing of Cohens identity. Id.

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270 officer.40 Cohen sued both newspapers for fraudulen t misrepresentation an d breach of contract. The trial jury awarded him $200,000 in compensatory damages and $500,000 in punitive damages.41 The Minnesota appellate court, affirmed the trial courts ruling that the First Amendment was not implicated because there wa s no government action, and that even if the newspapers First Amendment rights were implicated, compelling state interests outweighed those rights.42 The appellate court set aside the punitive damage award, ruling that Cohen had not proven misrepresentation.43 To prove misrepresentation, Cohen had to prove that the reporters misrepresented a past or present fact, and not that they simply failed to keep a future promise.44 Because he was unable to do this, the appella te court reversed the trial courts ruling. The Minnesota Supreme Court affirmed the appellate courts ruling to set aside the punitive damage award based on misrepresentation.45 The court disagreed, however, with the appellate courts grant of damage s for breach of contract. Al though noting the significant role that anonymous sources play in gathering news a nd the great importance that journalists place on the protection of these sources, the court found that th e protection of anonymous sources was an ethical question and not base in the law. The question before us, however, is not whether keeping a confidential promise is ethically required but whethe r it is legally enforceable; 40 Id. 41 Id. 42 Id. 43 Cohen v. Cowles Media Co., 455 N.W.2d 248, 259. 44 Id. 45 Cohen, 457 N.W.2d at 202.

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271 whether, in other words, the law should superi mpose a legal obligation on a moral or ethical obligation. The two obligations are not always coextensive.46 According to the court, the law [] does not create a contract wher e the parties intended none.47 Nor did the law made every promise legally binding, especially when neither of the parties were thinking in terms of a legal obligat ion. We are not persuade d that in the special milieu of media newsgathering a source and a reporter ordinarily believe they are engaged in making a legally binding contract.48 The court found that both parties understood the promise not to publish Cohens name to be a moral duty and not a legal contract.49 What we have here, it seems to us, is an Ill-scratch-your-backif-youll-scratch-mine accommodation. The source, for whatever reasons, wants certain information published. The reporter can only evaluate the information af ter receiving it, which is after the promise is given; and the editor can only make a reasonable, informed judgment after the information received is put in the larger context of the news. The durability and the duration of the confidence is usually left unsaid, dependent on unfolding developments; none of the parties can safely predict the c onsequences of publication. Each party, we think, assumes the risks of what might ha ppen, protected only by the good faith of the other party.50 The court concluded that a breach of contract action was inappropriate for the newspapers breaking the promise to Cohen that he would remain anonymous.51 The court also ruled that a finding in fa vor of Cohen under a theory of promissory estoppel would violate the news papers First Amendment rights.52 The newspapers had argued that any state imposed sanction for their printing of Cohens name would violate their rights of 46 Id. at 203. 47 Id. 48 Id. 49 Id. 50 Id. 51 Id. 52 Id. at 205.

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272 freedom of speech and the press. The intermed iate court of appeals ruled, using a contract approach that focused on whether there was a binding promise that the newspapers made and breached, found that the application of neutral principles of contract law did not invoke the First Amendment.53 The Minnesota Supreme Court found, however, that promissory estoppel was not neutral toward the First Amendment, but required that the court weigh the same considerations that are weighed for whethe r the First Amendment has been violated.54 The court had to balance the constitutional rights of a free press against the common law interest in protecting a promise of anonymity.55 The court was skeptical that an injusti ce could only be avoided by enforcing the newspapers promise to Cohen that induced him to provide the information, although Cohens reliance on that promise proved to be to his detr iment. According to th e court, it was not enough to note that a promise was broken, but that the a pplication of promissory estoppel required an inquiry into why the promise was broken.56 Such an inquiry might entail second-guessing the newspaper editors, but it could not be avoided. The court would have to answer questions that were best left up to the newspapers editors: For example, was Cohen's name "newsworthy" ? Was publishing it necessary for a fair and balanced story? Would identifying the sour ce simply as being close to the Whitney campaign have been enough? The witnesses at trial were sharply divided on these questions. Under promissory estoppel, the co urt cannot avoid answering these questions, even though to do so would mean second-guessing the newspaper editors.57 53 Id. at 204 (citing Cohen 445 N.W.2d at 254-57). 54 457 N.W.2d at 205. 55 Id. at 205. 56 Id. at 204. 57 Id.

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273 In deciding that enforcing the promise of anonymity would violate the newspapers First Amendment rights, the court found of great significance that the promise deal with political speech: [T]he promise of anonymity arises in the classic First Amendment context of the quintessential public debate in our democratic society, namely, a political source involved in a political campaign. The potentiality for civil damages for promises made in this context chills public debate, a debate which Cohen willingly entered albeit hoping to do so on his own terms. In this context, and c onsidering the nature of the political story involved, it seems to us that the la w best leaves the parties here to their trust in each other. On appeal, the U.S. Supreme Court revers ed the Minnesota Supreme Courts decision and held that the First Amendment did not prohibit Cohen from recovering damages under promissory estoppel.58 In doing so, the Court expressly declin ed to follow the principle asserted in the Florida Star, Daily Mail and Landmark line of cases that, if a newspaper lawfully obtains truthful information a bout a matter of public significan ce then state officials may not constitutionally punish pub lication of the information, absent a n eed to further a state interest of the highest order.59 The Court distinguishe d those cases from the Cohen case, noting that an important criterion in that prin ciple required that the informa tion to be published must be lawfully obtained.60 In this case the majority expressed uncertainty as to whether the newspapers lawfully obtained Cohens name.61 Instead of applying the Daily Mail principle, the Court found that precedent establishing that laws of general applicabil ity did not violate the First Ame ndment if the laws effect on the 58 Cohen, 501 U.S. at 665. 59 Id. at 668-669 (quoting Daily Mail 443 U.S. at 103). 60 501 U S. at 669. 61 Id. at 671. The Court stated that unlike the reporter in Florida Star the reporters in this case obtained Cohens name only by making a promise that they did not fulfill. Id. The Court did not note, however, that that the reporters promise was unfulfilled after getting Cohens name, not in order to obtain the name.

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274 freedom of the press was only incidental to the laws enforcement, controlled the case.62 As such, the Court noted that these laws were not su bject to strict scrutiny, meaning that the laws did not have to serve a compelling state in terest in order to be found constitutional.63 The Court concluded that the Minnesota la w of promissory estoppel was a law of general applicability.64 The law did not target the press a nd applied to all the citizens of that state. Nor did the First Amendment prohibit the application of prom issory estoppel to me mbers of the press.65 Any effect on newsgathering as a result of the enfo rcement of the law would be incidental and constitutionally insignificant.66 Because general laws did not implicate the Constitution, the Court was not required to appl y a greater level of scrutiny.67 The dissenting justices t ook quite the opposite view of the case. Justice Blackmun disagreed with the majori tys distinguishing of Daily Mail and characterized the newspapers naming of Cohen as political speech.68 He asserted that the majoritys reliance on cases 62 Id. at 669. 63 Id. at 670. 64 Id. 65 Id. The court noted cases in which it ruled that the press was not exempt from laws of general applicability: Similarly, the media must obey the National Labor Relati ons Act, Associated Press v. NLRB, 301 U.S. 103, 81 L. Ed. 953, 57 S. Ct. 650 (1937), and the Fair Labor Standards Act, Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 192-193, 90 L. Ed. 614, 66 S. Ct. 494 (1946); may not restrain trade in violation of the antitrust laws, Associated Press v. United States, 326 U.S. 1, 89 L. Ed. 2013, 65 S. Ct. 1416 (1945); Citizen Publishing Co. v. United States, 394 U.S. 131, 139, 22 L. Ed. 2d 148, 89 S. Ct. 927 (1969); and must pay non-discriminatory taxes, Murdock v. Pennsylvania, 319 U.S. 105, 112, 87 L. Ed. 1292, 63 S. Ct. 870 (1943); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 581-583, 103 S. Ct. 1365, 75 L. Ed. 2d 295 (1983). Cf. University of Pennsylvania v. EEOC, 493 U.S. 182, 201-202, 107 L. Ed. 2d 571, 110 S. Ct. 577 (1990). It is, therefore, beyond dispute that "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." Id. (citations omitted). 66 Id. at 672 (Blackmun, J. dissenting). 67 Id. at 670. 68 Id. at 673 (Blackmun, J. dissenting).

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275 concerning the media and generally applicable laws was misplaced.69 Instead he suggested the Court follow its ruling in Hustler Magazine v. Falwell in which the Court found allowing liability against a magazine for a satirical adver tisement under a claim for in tentional infliction of emotional distress violat ed the First Amendment.70 Justice Blackmun fou nd that like intentional infliction of emotional distress in Hustler, promissory estoppel cannot be said to have a merely incidental burden on speech.71 The publication of Cohens name, which the Justice called political speech, is said to have violated the law.72 In publishing Cohens name, the newspapers published truthful information.73 The Justice asserted that [t]o the extent that truthful speech may ever be sanctioned consistent with the First Amendment, it must be in furtherance of a state interest of the highest order.74 As such, the Justice concl uded that the application of promissory estoppel to the press in this case was a violation of the Firs t Amendment because the states interest in enforci ng the law was not compelling.75 Justice Souters dissent echoed Justice Black muns conclusion that this case did not fall under the authority of cases concerning th e media and generally applicable laws.76 The Justice suggested using a balancing test in order to deci de these kinds of cases; I find it necessary to articulate, measure, and compare the competing in terest involved in any given case to determine 69 Id. at 674 (Blackmun, J. dissenting). 70 485 U.S. 46 (1988). 71 501 U.S. at 675 (Blackmun, J. dissenting). 72 Id. 73 Id. at 676 (Blackmun, J. dissenting) 74 Id. 75 Id. 76 Id. at 677 (Souter, J. dissenting).

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276 the legitimacy of burdening constitutional interests.77 According to Ju stice Souter, the majoritys dismissal of balancing conceived Firs t Amendment rights as only those of the speaker without reference to the value of the speech to public discourse.78 Noted the Justice, [F]reedom of the press is ultimately founde d on the value of enhancing such discourse for the sake of a citizenry better informed and t hus more prudently self-governed.79 Justice Souter found that the public interest was an integral part of the ba lancing test in this case as Cohens identity expanded the universe of information relevant to the choice faced by Minne sota voters in that States 1982 gubernatorial election, the publication of which was thus of the sort quintessentially subject to strict First Amendment protection.80 The Justice did state, however, that how the information was acquired did play a part in th e balancing of interests, although they may go only to what balances against and not to diminish, the First Amendment value of any particular piece of information.81 On remand, the Minnesota Supreme Court a ffirmed the trial jurys $200,000 award to Cohen.82 In doing so, the court ruled that it would only invalidate promises in certain cases, and declined to address whether the newsworthiness of Cohens identity had achieved a level of such grave importance as to re quire invalidation of the anonymity promise on the grounds of public policy.83 77 Id. 78 Id. at 677-678 (Souter, J. dissenting). 79 Id. at 678 (Souter, J. dissenting). 80 Id. 81 Id. at 679 (Souter, J. dissenting). 82 Cohen v. Cowles Media Co., 479 N.W.2d 387, 388 (Minn. 1992). 83 Id. at 391.

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277 It appears then, that after the U.S. Supreme Courts opinion, courts will not inquire into the First Amendment implications of speech or newsgathering activities in cases brought under promissory estoppel or misrepresentation. Without consideration for First Amendment rights or the public interest in obtaining certain information, journalists sued for such torts will not have any viable constitutional defenses. The next section considers the cases involving misrepresentation and breach of promise after Cohen, and considers how the courts have used the U.S. Supreme Courts opinion in Cohen to decide these cases. Misrepresentation and Breach of Promise Post-Cohen In suing both the Minneapolis Star Tribune a nd the St. Paul Pioneer Press, Cohen claimed that the newspapers that published his name ha d done two things: fraudulently represented to him that he would remain anonymous, and breach ed the reporters promises that he would remain anonymous. The Minnesota appellate an d Supreme Courts quickly dismissed Cohens misrepresentation, but the U.S. Supreme Courts decision in Cohen is still cited in misrepresentation cases against journalists. Cohen is still the major precedent for courts deciding breach of promise cases against jour nalists also. This section explores how the courts have used Cohen in misrepresentation and breach of promise cases because of the impact of such an application on how courts will treat journalists who use information that they have unlawfully acquired. Breach of Promise In 1991, the same year the U.S. Supreme Court announced its opinion in Cohen a New York court used the decision to rule that a news photographers failure to comply with a promise that an individual in a photo would remain unidentifiable was actionable and not prohibited by

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278 the First Amendment. In Anderson v. Strong Memorial Hospital ,84 a doctor and his employing hospital sued Gannett, the owner of the Democrat & Chronicle newspaper, for indemnification for breach of contract and causing the breach of the physician-patient privilege. Cornell Anderson, a former patient, sued the hospital and doctor for breach of patient-physician privilege after the doctor allowed a photograp her to take a picture of him while he was being treated for HIV.85 The photographer promised both Anderson and the doctor that Anderson would not be recognizable. When the photograph and accompa nying story about the doctor where published, however, members of Andersons family recognized him, and he was identified as an AIDS patient.86 The doctor and hospital were ordered to pay Anderson $35,000 in damages. The hospital filed a third-party lawsui t against Gannett claiming that the photographers promise that Anderson would not be recognizable created a duty to the hospital, and the breach of that duty in making Anderson recognizable caused the hospital damages.87 The court agreed, ruling that under the recently decided Cohen opinion, the First Amendment did not prohibit liability by the newspaper company.88 The court noted, however that the First Amendment was the minimum appli cable standard for free speech, and that the New York Constitution was often broader than the minimum required by the Federal Constitution.89 There was, however, no public interest in revealing the identity of an HIV84 573 N.Y.S.2d 828 (N.Y. Sup. Ct. 1991). 85 Id. at 829. 86 Id. at 830. 87 Id. 88 Id. 89 Id. at 830-831 (citing Immuno AG v. Moor-Jankowski 77 N.Y.2d 235, 249 (N.Y. Ct. App. 1991)).

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279 positive person. According to the court, under th e circumstances, there was no reason that the State Constitution would offer protec tion for revealing this information.90 The court also distinguished Virelli and criticized that courts ruling that the identity of drug users concerned the public interest.91 There was no evidence that the subject of drug use in the article in that case could not have been fully explored without reveling the familys identity. The Virelli court also did not consider the reporters broken promise not reveal the drug users identities. Alt hough noting this, the Anderson court ruled that Virelli was not authoritative because it was in conflict with Doe v. ABC in which a different New York court denied the broadcast companys motion for summary judgment for breach of contract.92 According to the Anderson court, the Doe v. ABC ruling that breach of contract wa s a viable claim was preferable to the Virelli ruling.93 In support of this conclusion, the Anderson court cited the Minnesota Supreme Courts first ruling in Cohen in which that court noted that there might be instances when the state interest in pr oviding a remedy for confidential s ources under promissory estoppel would outweigh the state interest in pr otecting First Amendment guarantees. The Anderson court concluded that this was one of those instances.94 The court also found, using the U.S. Supreme Courts Cohen decision, that an unkept (sic) promise to a news source ma kes the press conduct unlawful.95 Had Anderson or the doctor known that the photographers promise would not have been kept, they would have never 90 573 N.Y.S.2d at 831. 91 Id. 92 Id. 93 Id. 94 Id. at 831-832. 95 Id. at 832.

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280 granted him permission to take the picture. The absence of permission under such circumstances makes Gannetts conduct unlawful, in the same was as a TV photographer entering someones home without permission. Neither Federal nor State Constitutions condone an unlawful trespass.96 According to the court, journalists had no special privilege not to obey the law. Compelling the press to respect a promise made and relied upon, and to be responsible for that commitment, does no more than compel the press to act as any other responsible citizen with respect to laws of general application. The Federal and State Constitutions insulate the press from government action or coercion, not from agreements voluntarily entered into. When these agreements have been violated or disregarded, the constitutional protection is no longer a defense.97 When journalists violate the agreements that they voluntarily entered into, laws of general applicability are evoked to reme dy this breach, even when the agreement concerned the content of the article.98 Because the photographer in Anderson freely agreed to censor himself, there was no danger in there being a chilling effect on sp eech. Allowing journalists to freely make contracts without ensuring that the journalist s fulfilled their promises would be allowing journalists to lie. This would th en taint the public perception of journalists, and cause the other members of society to refuse to provide reporte rs with information, ther eby hurting the press in its attempt to fulfill the role of news provider.99 The court also ruled that Gannetts argumen t that the hospital should have required a more particular agreement was invalid. A ccording to the court, the newspapers in Cohen 96 Id. (citations omitted). 97 Id. 98 Id. 99 Id. at 833.

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281 presented the same argument and the U.S. Supreme Court rejected it.100 Therefore, the court dismissed Gannetts argument that the doctor and the hos pital should have required prepublication review of the photograph. The court ruled, The burde n of carrying out its promise of anonymity is that of Gannett and may not be so facilely shifted.101 The court denied the newspaper companys motion for summary j udgment on the breach of contract claims. Although the U.S. Supreme Courts decision in Cohen has been used to assert that the First Amendment did not prohibit a plaintiff fr om recovering damages from a journalist who breached a contract, Cohen has also been used to rule that a plaintiff could not use breach of contract in an attempt to recover damages more closely related to in juries to her state of mind. In OConnell v. Housatonic Valley Publishing Co .,102 Lorraine OConnell su ed the publisher of The New Milford Times after she was identified in a story c oncerning her neighbors treatment of a horse. According to OConnell, she received no assurances from the reporter that her name would not be used in the articl e, but she believed th at her specific request to be anonymous would be honored.103 The newspaper filed a motion for summary judgment arguing that both the First Amendment and the Connecticut Constitu tions protected the pr inting of OConnells name.104 In addition, OConnells statements were contained in an arrest warrant that was part 100 Id. 101 Id. 102 1991 Conn. Super. LEXIS 2749 (Conn. Super. Ct. 1991). 103 Id. at *1 104 Id.

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282 of the public record.105 Further, the newspaper asserted that the printing of OConnells name was privileged as a matter of public interest.106 The court found that OConnells reliance of Cohen in arguing that the First Amendment did not prohibit damages against members of the press for breach of promise of anonymity was misplaced. OConnell was not seeking damages fo r breach of contract. Instead, she alleged damages related to extreme emotional distress as a result of the neglig ent publication of her name.107 According to the court, OConnells al leged injuries appeared more like those stemming from an emotional distress claim. Under Cohen, the U.S. Supreme Court ruled that plaintiffs seeking redress of injuries relate d to emotional distress were required to follow Hustler Magazine, Inc. v. Falwell, which mandated the use of constitu tional libel standards in emotional distress cases.108 The court also restated the U.S. Suprem e Courts prohibition on punishing the press for publishing truthful information alre ady a part of the public record.109 The court further noted that the Connecticut Constitution, at times, provi ded greater protection for the press than the federal Constitution, but declined to delve into state constitutional protections because it had already decided that the First Amendment wa s an appropriate defense for the newspaper company.110 The court, therefore, granted the newspaper companys motion for summary judgment. 105 Id. at *2. 106 Id. 107 Id. at *5-6. 108 Id. at *7. 109 Id. (citing Cox Broadcasting v. Cohn 420 U.S. 469, 496 (1975), and Florida Star 491 U.S 524)). 110 1991 Conn. Super. LEXIS 2749 at *8.

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283 Around the same time the Cohen case was making it way through the courts, Ruzicka v. The Conde Nast Publications, Inc .,111 another case based on the Mi nnesota law of promissory estoppel was climbing in the federal courts. After the U.S. Supreme Court ruled in Cohen that the First Amendment did not prohibit recovery for promissory estoppel, the Eighth Circuit determined that a jury should decide whether a remedy for promissory estoppel was necessary to prevent injustice.112 Previously, the court had remanded the case to the district court, which had granted summary judgment to the publishers of Glamour Magazine The district court found that there was no definite promise, and without such a promise the plaintiff was unable to demonstrate that a remedy was necessary to prevent an injustice.113 Ruzicka arose after Claudia Deifus, a writer for Glamour published identifiable information of a source in an article on therapist-patient sexual abuse.114 Jill Ruzicka agreed to speak with Dreifus on the condition that she identified or identifiable in the article.115 Although Dreifus used a fictitious name for her source in the article. Ruzicka claimed, however, that the information Dr eifus provided about the source clearly identified her.116 On appeal, the Eighth Circuit found that Dr eifus promise not to identify Ruzicka was definite enough to be actionable under promissory estoppel. According to the Eighth Circuit, in determining whether a plaintiff has been identified, [t]he test is neither the intent of the author 111 999 F.2d 1319 (8th Cir. 1993). 112 Id. at 1323. 113 Id. at 1320. 114 Id. 115 Id. 116 Id. at 1322. The article identified its source as Jill Lu ndquist, a Minneapolis attorney, but added that the attorney served on a state task force that wrote a law prohibiting therapist-pa tient sex. Ruzicka was, however, the only female attorney on that task force. Id.

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284 nor the apprehension of the plaintiff that the arti cle might disclose the identity of the plaintiff, but rather the reasonable understanding of the reci pient of the communication.117 The court, therefore, overturned the district courts grant of summary judgment to the magazine publishers, finding that it was for a jury to decide whether injustice would result in not enforcing the doctrine of promissory estoppel for revealing information that made Ruzicka identifiable.118 Moreover, enforcement of the promise would not be unjust to the media defendant. Where the press feels disclosure of identity of a conf idential source is valuable to the story and thus disregards its promise, the payment of compensatory damages is, as the United States Supreme Court has stated, simply a cost of acquiring newsworthy material to be published at a profit. .119 At least one court has found the press liable fo r damages in relation to an actual contract signed by a journalist du ring newsgathering. In W.D.I.A Corporation v. McGraw-Hill, Inc .,120 a federal court found the publisher of Business Week Magazine liable for fraud and breach of contract after one of the magazi nes reporters enter into a cont ract with the company with the purpose of breaking that cont ract. To test the Fair Credit Reporting Act (FCRA),121 and to investigate W.D.I.A, a credit re porting service, a reporter for Business Week purchased a subscription to the credit reporting service.122 This subscription would allow the reporter, Jefferey Rothfeder, the ability to access the credit files of third-parties.123 The FRCA required, however, a permissible purpose for accessing credit in formation; use of credit reports for other purposes was a criminal offense. Rothfeder and his employer, McGraw-Hill, told W.D.I.A. that 117 Id. 118 Id. at 1323. 119 Id. 120 34 F. Supp. 2d 612 (S.D. Ohio 1998). 121 15 U.S.C. 1681-1681t. 122 34 F. Supp. 2d at 616-617. 123 Id. at 616.

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285 the credit reports would be us ed for background checks on employees, but this was not the purpose for the use.124 In fact, Rothfeder intended to use the reports for an investigative article on the credit reporting industry.125 Rothfeder obtained then Vice -President Dan Quayles credit report, as well as the credit reports of other public figures with their permission.126 Business Week published an article a few mo nths later on its investigat ion, without naming W.D.I.A. W.D.I.A. claimed that McGraw-Hill breached its contract with the credit reporting company by intentionally entering into a contract for the purpose of not keeping its promise to use any information gathered for a permissible purpose.127 Further, McGraw-Hill did not pay the bill for the services rendered. The court found that W.D.I.A. had a right to insist that McGrawHill perform the duties of the contract or be compensated for non-performance of those duties.128 When Rothfeder signed the contract, he had no intention of using the information W.D.I.A. provided for the permissible purpos e as defined under the FCRA.129 The company deliberately and wailfully [sic] made misrepre sentations on the application a nd during the application process in order to induce W.D.I.A. to ente r into the Subscriber Agreement.130 Rothfeders misrepresentations caused W.D.I.A. to violate the FCRA; but for the misrepresentations, no agreement would have been ente red into between the parties.131 124 Id. 125 Id. at 617. 126 Id. 127 Id. at 620. 128 Id. at 623. 129 Id. 130 Id. 131 Id.

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286 The court also found that the First Amendment did not shield McGraw-Hill from liability for breach of contract and fraud. Although noting that the press may publish truthful, lawfully obtained information, the court stated, there is no absolute immunity against civil or criminal liability when the press obtains information through unlawful means.132 The court found that fraud and contract laws were la ws of general appli cability, therefore, W. D.I.A. could recover damages from McGraw-Hill.133 Further, the court found that the enforcement of such laws would not require strict scrutiny in order to ensure there would be no chill on expression.134 The court wrote: Assessing damages when wrongfully acquired da ta is purveyed to the multitude chills intrusive acts. It does not chill freedom of expression guaranteed by the First Amendment. Under the principles set out by the Sixth Circuit in Boddie v. American Broadcasting Co. Inc., 881 F.2d 267, 271 (6th Cir. 1989), defendants are not immunized for their wrongful behavior simply because it was undertaken in the name of news gathering. The defendants intentionally engaged in fraud which induced W.D.I.A. to permit access to credit information.135 The court awarded W.D.I.A. $7,499.95 for compensatory damages related to breach of contract and fraud by McGraw-Hill and Rothfeder. Th e court would not, however, award punitive damages.136 The court also noted the importance of prot ecting those who test for compliance with the laws. According to the court, testers help to determine whether the rights of individuals, as 132 Id. at 624 (citing Scheetz v. Morning Call, Inc ., 747 F. Supp. 1515, 1525 (E.D. Pa. 1990) affd, 946 F.2d 202 (3d Cir. 1991)) 133 Id. 134 Id. (citing Cohen v. Cowles Media Co ., 501 U.S. 663, 670 (1991)). 135 Id. 136 Id. at 627. Punitive damages were not recoverable under Ohio law. Id.

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287 protected by statute, are being safeguarded.137 This check on individual rights served the public interest: Defendants test of the credit reporting system does not support an award of punitive damages in this case because it served to inform Congress and the general public about a matter of vital public interest and was done in such a way as to protect the identity of W.D.I.A. and the rights of the consumers. Additionally, defendants are committed to an enlightened philosophy that they will never again engage in similar conduct and will always publish the truth. The need to deter future conduct is not present in this case.138 The breach of contract and promissory est oppel cases focus on the idea that a reporter creates a duty to perform when making a promise. When journalists have gone undercover as employees, the courts have held the journalists to the duties they agreed to as terms of their employment. One example of this is Food Lion, Inc. v. Capital Cities/ABC, Inc .139 Food Lion v. ABC arose after two reporters for ABCs PrimeTime Live gained employment in the deli section of two different Food Lion grocery stores by falsifying parts of their employment applications.140 While working in the stores, both re porters secretly reco rded hidden camera footage of meat handlin g practices. The footage was then used, along with interviews of exFood Lion employees, as part of an investiga tive report on the Food Li on grocery chain. Food Lion sued ABC for fraud and breach of fiduciary duty, among other things.141 A jury found ABC liable for trespass and awarded Food Lion no minal damages of $1.00 for the journalists breach of loyalty.142 On appeal, the Fourth Circuit upheld this verdict.143 137 Id. 138 Id. 139 984 F. Supp. 923 (M.D.N.C. 1997). 140 Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1217, 1218 (M.D.N.C. 1996). 141 Id. Food Lion also pleaded claims for ci vil conspiracy and negligent supervision. Id. 142 Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F. 505, 516 (M.D.N.C. 1998). The Jury awarded Food Lion $5,545,750 in total damages. 143 Id. at 516.

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288 The federal appellate court reiterated the principle of agency law that states that an employee owes a duty of loyalty to his employer.144 In North and South Carolina, where the ABC journalists worked for Food Lion stores, employee disloyalty was considered tortious in three contexts: when an employee directly comp eted with his employer, when the employee misappropriate[d] her employers profits, prope rty or business opportunities, and when the employee breaches her employers confidences.145 The Fourth Circuit found that the journalists actions in surreptitiously recordi ng the grocery stores meat handling practices verged on the kind of employee activity that has already been determined to be tortious.146 The interests of the employer (ABC) to whom [the journalists] gave co mplete loyalty were adverse to the interest of Food Lion, the empl oyer to whom they were unfaithful. ABC and Food Lion were not business competitors but they were adverse in a fundamental way. ABCs interest was to expose Food Lion to th e public as a food chain that engaged in unsanitary and deceptive practices. [The journa lists] served ABCs interest, at the expense of Food Lion, by engaging in the taping for AB C while they were on Food Lions payroll. In doing this, [the journalists] did not serve Food Lion faithfully, and their interest (which was the same as ABCs) was diametrically opposed to Food Lions.147 The Fourth also noted that the ABC journalists had the intent to go agains t the interests of Food Lion in favor of ABC. Because of this, the court ruled that the di strict court was correct in not setting aside the jury verdict that the j ournalists had breached their duty of loyalty.148 The court was also not persuaded by ABCs argument that Food Lions tort claims should be subject to heightened First Amendment scrutiny.149 The Fourth Circuit based its conclusion 144 Id. at 515. 145 Id. at 515-516. 146 Id. at 516. 147 Id. The court was careful, however, to no te that its ruling did not apply in all instances where an employee works two jobs. Id. 148 Id. 149 Id. at 520-521.

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289 on Cohen in which the U.S. Supreme Court ruled that the enforcement laws of general applicability against the press di d not violate the First Amendment.150 According to the Fourth Circuit, the key inquiry in [ Cohen] was whether the law of promi ssory estoppel was a generally applicable law.151 That court concluded, The First Am endment does not confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law.152 The Fourth Circuit found that breach of the duty of loyalty fit into the Cohen framework in that it was a law of general applicability and it did not single out the press.153 The application of these laws only incidentally affected newsgathering. The court found that journalists could do their jobs without committing run-of-the-mill torts.154 Further, the court reconciled the apparent conflict between the ruling in Cohen and that in Barnes v. Glen Theatre, Inc .155 in which the U.S. Supreme Court ruled that an or dinance prohibiting public nudity violated the First Amendment, by viewing the tortious conduct in Cohen as breach of promise and not speech.156 Using this conception of those two cases the court ruled, as the U. S. Supreme Court ruled in Cohen that strict scrutiny was inappropriate because the tort law under which ABC was sued was a law of general applicability, that di d not single out the press.157 The federal district court for the District of Columbia used both the U.S. and Minnesota Supreme Court decisions in Cohen to rule against the press fo r both breach of contract and 150 Id. at 520. 151 Id. at 521. 152 Cohen, 501 U.S. at 672. 153 194 F.3d at 521. 154 Id. 155 501 U.S. 560 (1991). 156 194 F.3d at 521-522. 157 Id. at 522.

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290 promissory estoppel. In Steele v. Isikoff ,158 Julie H. Steele sued Michael Isikoff and Newsweek Magazine for breach of contract, fraud, promissory estoppel and breach of fiduciary duty, after the magazine published her name in an article on th en-President Bill Clintons alleged affair with Kathleen Willey.159 Steele alleged that Is ikoff promised that thei r conversations, about the matter were off the record, but that when pre ssured by his editors, Isi koff published her name and the information that she provided.160 Isikoff argued that the First Amendment barred Steeles claims.161 The court disagreed with Isikoffs assertion that the First Amendment required dismissal of the suit. Isikoff argued that Steeles claims were based on in jury to her reputation, for which she was attempting to collect damages without m eeting the constitutional requirements of a defamation claim.162 Using Cohen, the court found that a complete dismissal of Steeles claims based on First Amendment grounds was inappropriat e. According to the court, the Supreme Courts ruling that no First Amendment violation existed was based on that courts finding that generally applicable laws do not offend the Fi rst Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.163 The Steele court found that Steele had based her case on non -reputational claims that were generally 158 130 F. Supp. 2d 23 (D.D.C. 2000). 159 Id. at 26-27. 160 Id. at 27. Steele apparently lied about her knowledge of Willeys relationship with Clinton, at the prompting of Willey. 161 Id. at 28. 162 Id. 163 Id. at 29 (quoting Cohen 501 U.S. at 669).

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291 applicable. Therefore, the court ruled that it was too early to di smiss the claims for fear that reputation damages may be implicated.164 The court did, however, dismiss Steeles breach of contract claim. Using the Minnesota Supreme Courts analysis of the breach of contract claim in Cohen, the Steele court ruled a reporter-source confidentiality arrangement is more appropriately viewed as a moral commitment.165 According to the court, the laws of th e District of Columbia and Virginia did not elevate moral obligations to contracts: Accordingly, be cause a reporters promise of confidentiality is a moral ob ligation, not a contractual requi rement, and because a moral obligation does not give rise to express or implied contractual duties, there is no contractual relationship between Steele and Isikoff.166 The court also ruled that if it were to decide that the confidentiality agreement between a reporter and a source was contractual, Steeles claim of a contract would fail because a contract entailed a covenant of good faith and fair dealing.167 Because Steele intended to lie to Isikoff about what she knew about the presidents relationship, she was acting in bad faith, which would relie ve Isikoff of any dut y he had under their contract.168 Further, the court dismissed her claim for damages under a theory of promissory estoppel because Virginia law does not recognize the doctrine.169 The court also dismissed her claim that Isikoff was unjustly enrich ed by making the promise not to publish her name, which led to 164 130 F. Supp. 2d at 29. 165 Id. at 31. 166 Id. at 31-32. 167 Id. at 32 (quoting Hais v. Smith 547 A.2d 986, 987 (D.C. 1988)). 168 Id. 169 Id. at 33.

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292 her reliance on the promise.170 Courts in the District of Columbia prohibit claims of unjust enrichment from plaintiffs who acted without good faith: In an action in equity, he who asks relief must have acted in good faith. The equitable powers of the court can never be exerted in behalf of one who has acted fraudulently or who by deceit or any unfair means has gained an advantage. To aid a party in such a case would make the court the abetter or iniquity. Thus, while equity does not demand that its suitors shall have led blameless lives,. .it does require that they shall have acted fairly and without fraud or deceit as to the controve rsy in issue.171 Because Steele intended to lie to Isikoff, she act ed with deceit, barring her from recovery under unjust enrichment.172 A federal court in Mississippi also used the breach of contract analysis from Cohen to decide a case that was origin ally based on defamation, invasion of privacy and emotional distress. In Pierce v. The Clarion Ledger ,173 Robert Earl Pierce sued the Clarion Ledger newspaper after the newspaper published an article about allegations in an internal memo from the Mississippi Bureau of Narcotics (MBN). The memo stated that Pierce, a former MBN official, authorized the inappr opriate use of state equipment.174 The memo intimated that Pierce gave authorization to gain political influence and to obtain a different position, but the memo also stated that Pierce denied the allegations.175 The source of the memo was later identified, and admitted to giving the memo to a Clarion reporter under the agreement that the reporter would not publish the memo until she checked it out.176 Pierce based his breach of contract 170 Id. at 34. 171 Id. (quoting Synanon Found., Inc. v. Bernstein 503 A.2d 1254, 1264 (D.C. 1986)(citations omitted)). 172 130 F. Supp. at 34. 173 452 F. Supp. 2d 661 (S.D. Miss. 2006). 174 Id. at 662. 175 Id. 176 Id. at 663

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293 claim on a theory that he was a third-party be neficiary of the agreem ent between the reporter and the source.177 Because the reporter had published the information from the memo, she had breached her agreement with the confidential so urce. Pierce claimed that he should he was injured by the reporters breach, and ther efore deserved to recover damages. As the breach of contract claim between focusing on a reporters promise of confidentiality was a matter of first impression in Mississippi, the court used the Minnesota Supreme Courts first ruling in Cohen to determine that no contract existed.178 Like the Minnesota Supreme Court, the federal court was not persuaded that reporte rs and sources usually believe that they are creating a binding contract when the source provides the reporter with information in exchange for anonymity. The parties understand that the reporters pr omise of anonymity is given as a moral commitment, but a moral obligation alone will not support a contract. Indeed, a payment of money, which taints the inte grity of the newsgathering function, such as money paid a reporter for the publishing of a news story, is forbidden by the ethics of journalism.179 The court did, however, note that under the U.S. Supreme Courts ruling in Cohen, the First Amendment did not bar a source from obtaining dama ges from a reporter, for breach of promise, under a theory of promissory estoppel.180 Pierce could not, however, recover under promissory estoppel because he was not a party to the prom ise. As a third party who was ignorant of the promise, he could not prove that he relied on the alleged promise.181 177 Id. 178 Id. at 663-664. 179 Id. at 664 (quoting Cohen, 457 N.W.2d at 203). 180 452 F. Supp. at 665. 181 Id. But see Huskey v. NBC, Inc., 632 F. Supp. 1282 (N.D. Ill. 1986) in which the court ruled that a prisoner, filmed without permission, could go forth with a breach of contract claim based on NBCs agreement with prison officials to abide by a federal statute that prohibited the unauthorized photographing of inmates.

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294 The cases mentioned above used both the state and federal opinions in Cohen. This is not to say that all breach of promise cases against members of the press after 1991 cite Cohen. In Showler v. Harpers Magazine Foundation the family of a member of the Oklahoma National Guard killed in Iraq sued Harpers Magazine after a photographer for th e magazine took pictures of the guardsmans body at the funeral.182 The guardsmans death earned significant media attention because he was the first member of the Oklahoma National Guard to be killed in combat since the Korean war.183 The family expressed to the funeral home its wish to have an open-casket funeral ceremony, but it also asked that the press not be allowed to photograph the soldiers body.184 The reporter from Harpers obtained permission to a ttend the funeral, but was informed that there would be a section at the back of the auditorium reserved for the press, and that he could not interview the guardsmans family.185 The photographer took pictures of the funeral, which 1200 people attended. At the e nd of the ceremony, the guardsmans casket was moved to the back of the audito rium so that those in attendanc e wishing to view the body could do so as they filed out of the room.186 The reporter for Harpers then took pictures of the guardsmans body.187 The family did not learn of the pictures until the photographer sent the 182 222 Fed. Appx 755, 758-759 (10th Cir. 2007). 183 Id. at 758. 184 Id. 185 Id. 186 Id. at 758-759. 187 Id. at 759.

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295 guardsmans father copies of the photos the reporter had taken during the funeral.188 Harpers Magazine also published the photos and entered them into various competitions.189 The family sued Harpers Magazine claiming the photographer committed fraud by promising the funeral home director that he would not take pictures of the open casket.190 The trial court granted the magazine summary judgment on this claim, ruling th at if there was fraud or misrepresentation, it was made toward the funeral director and not the family.191 On appeal the Tenth Circuit affirmed and ruled that the fa mily did not have evidence that the photographer promised the funeral director no t to photograph the open casket, and that he intended not to keep that promise.192 According to the court, under Oklahoma law, the general rule is that when a false representation is the basis of fraud, the re presentation must relate to existing facts or previously existing facts and not to promises of some future act.193 Although noting that an exception to this rule arises when the promise is made with the intention not to keep the promise and to deceive the promisee, the court f ound that the family had no evidence of the photographers lack of intent to photograph the open casket.194 The court also found that the familys fraud claimed failed because it could not prove that it relied upon any statements made by the photographer.195 188 Id. After the funeral, the reporter approached the guardsmans father and offered to send him copies of the photographs that he had taken. Id. 189 Id. 190 Id. at 765. 191 Id. 192 Id. 193 Id. (citing Roberts v. Wells Fargo AG Credit Corp ., 990 F.2d 1169, 1172 (10th Cir. 1993)). 194 22 Fed. Appx. at 765. 195 Id.

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296 Misrepresentation Showler demonstrates a connection between m isr epresentation claims and claims for breach of promise. In Cohen, the Minnesota Supreme Court a pproved of the appellate courts dismissal of Cohens misrepresentation claim b ecause he had not proven that the reporters had misrepresented a past or present fact with respec t to their promise not to identify him. The U.S. Supreme Court did not focus on fraud or misrepresentation, but courts deciding misrepresentation claims have cited its decision in Cohen nevertheless. This does not mean, however, that the courts have ruled against journalists who have misrepresented themselves in order to gather information. In Desnick v. ABC, Inc,196 for instance ABC broadcast a story that was the culmin ation of three months of investigation of the Desnick Eye Centers in Illinois and Wisconsin. To create the story, PrimeTime Live s investigative team had contacted Dr. James H. De snick, who let a film crew videotape the main eye clinic in Chicago, allowed access to a catara ct removal operation and permitted interviews of various doctors, eye clinic staff and patients, on the promise that ABC would not conduct ambush interviews or undercover surveillance.197 Dr. Desnick did not know, however, that A BC had also sent fake patients to the eye clinics armed with hidden cameras, which were able to record the eye examinations they received.198 PrimeTime Live broadcast the hidden camera segments juxtaposed with interviews with former eye clinic patient s, staff, and experts on ophthalmology. After the segment aired, Dr. Desnick sued ABC for fraud, among other things. 196 44 F.3d 1345 (7th Cir. 1995). 197 Id. at 1348. 198 Id.

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297 The Seventh Circuit found, however, that Il linois did not offer a remedy for fraudulent promises unless there was a scheme to de fraud in ABCs hidden camera investigation.199 The court said there was no scheme to defraud. Furt her, the court viewed the fraud by ABC to not be of the kind for which the law provides a remedy. Investigative journalis ts well known for ruthlessness promise to wear kid gloves. They break their promise, as any person of normal sophistication would e xpect. If that is fraud, it is the kind against potential victims can easily ar m themselves by maintaining a minimum of skepticism about journalistic goals and methods.200 The court also failed to find how Desnick was harmed by ABCs false promises. The court acknowledged that if ABC had informed the doctor that it would be sending undercover investigators and conducting ambush interviews Desnick may not have spoken with ABC. Therefore, the court ruled the socalled [sic] fraud was harmless.201 Like the Seventh Circuit in Desnick, in Deteresa v. ABC, Inc.,202 the Ninth Circuit ruled that because a plaintiff and a member of the press did not have a relationsh ip that created a duty of disclosure, there was no fraud when a producer failed to inform the woman that she was being recorded on audio and videotape.203 Deteresa arose after a producer fr om ABC visited the home of Beverly Deteresa, an attendant on the flight that O.J. Simpson had taken after the murder of his ex-wife.204 Deteresa never allowed the producer into her home but did express that she did not want to be interviewed for the news program She did, however, continue to talk to the producer at her door and e xplained that she was frustrated w ith hearing some of the false news 199 Id. at 1354. 200 Id. 201 Id. at 1355. 202 121 F.3d 460 (9th Cir. 1997). 203 Id. at 467. 204 Id. at 462.

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298 reports being published about what occurred on the flight with O.J. and explained to the producers some of the details of what really occurred.205 The next day the producer called Deteresa to ask her if she would appear on camer a; she declined. While the producer spoke with Deteresa, a camera crew filmed her from a public street. The producer also surreptitiously recorded their conversation. That night, ABC broadcast a clip of the conversation on the news program Day One The court found that under California law, there were four circumstances in which nondisclosure or concealmen t would constitute fraud: (1) when the defendant is in a fiduciary re lationship with the plaintiff; (2)when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fa ct from the plaintiff; and (4) when the defendant makes partial repr esentations but also suppre sses some materials facts.206 According to the court, these situations pres uppose[] the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise.207 The Ninth Circuit agreed with the district court, which found th at there was no evidence that Deteresa and the producer had a relationship that required the pr oducer to disclose that he was taping her.208 Further, the court found that even th ough the federal and state law prohibited unauthorized taping of private comm unications, California courts have rejected this as a basis for fraud.209 Although inferentially, everyone has a duty to refrain from committing intentionally tortious conduct against another, it does not follow that one who intends to commit a tort owes a duty to disclose that in tention to his or her intended victim. The general duty is not 205 Id. 462-463. 206 Id. at 467 (quoting LiMandri v. Judkins, 60 Cal. Rptr. 2d 539, 543 (Cal. Ct. App. 1997). 207 121 F.3d at 467 (quoting LiMandri 60 Cal. Rptr. 2d at 543). 208 121 F.3d at 467. 209 Id.

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299 to warn of the intent to commit wrongful act s, but to refrain from committing them. We are aware of no authority supporting the imposition of additional liability on an intentional tortfeasor for failing to disclose his or her tortious intent before committing a tort.210 The court ruled that ABC had not committed fraud fo r failing to inform Deteresa of its intent to record her. The court, therefore, affirmed the district courts grant of summary judgment.211 In contrast to the Ni nth Circuits ruling in Deteresa a Minnesota appellate court in Special Force Ministries v. WCCO TV ,212 ruled that a reporter may have committed fraud by failing to disclose that she worked for a television station when she applied to be a volunteer at a care facility.213 Special Force Ministries, a care facility for handicapped persons, sued the television station, for trespass and fraud, after a journalist for the station obtained a volunteer job at the facility and secretly recorded footage while she worked.214 The station used the journalists footage in a report on patient care at the facility.215 The station argued that Special Force could not prove fraud because the reporter had no duty to disc lose that she worked for the station.216 The court found, however, that a duty is imposed when disclosu re is necessary to clarify information already disclosed, which would otherwise be misleading.217 The court found that the reporter not only fail ed to disclosed that she was em ployed by the station, but that she also indicated that she was unemployed. Her references also failed to disclose that she 210 Id. (quoting LiMandri 60 Cal. Rptr. 2d at 544). 211 121 F.3d at 468. 212 584 N.W.2d 789 (Minn. Ct. App. 1998). 213 Id. at 793-794. 214 Id. at 791. 215 Id. 216 Id. at 793. 217 Id. (quoting L&H Airco, Inc. v. Rapistan Corp ., 446 N.W.2d 372, 380 (Minn. 1989)).

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300 worked for the station.218 Further, the court rejected the cl aim that Special Force could not show damages because, Had Special Force known Johnson worked for WCCO, it would not have given Johnson the volunteer position and placed he r in a position of tr ust working with its vulnerable residents.219 The court denied the stations motion for summary judgment.220 A California appellate court, in comparison, f ound that reporters had no duty to disclose that they were recording two men with whom they were having a business meeting.221 Wilkins v NBC, Inc arose from a Dateline NBC investigation of the pay-per-call industry.222 Two producers for NBC contacted SimTel, a pay-per-call company, in response to a national advertisement and arranged a lunch m eeting with company representatives.223 The producers brought two additional people to the meeting, which took place on the patio of a restaurant. The company representatives did not inquire into the identities of th e two additional people.224 During the meeting the SimTel representatives e xplained how their pay-per-call system worked. The producers recorded the meeting using hidden cameras and later broadcast excerpts from the recording.225 The SimTel representatives pl eaded three theories of fra ud: that the reporters made affirmative misrepresentations to them on which they relied; the reporters failed to disclose 218 584 N.W.2d at 793. 219 Id. at 794. 220 Id. 221 Wilkins v. NBC, Inc., 84 Cal. Rptr. 2d 329, 339 (Cal. Ct. App. 1999). 222 Id. at 332. Pay-per-call is the practi ce of charging for services on so-cal led toll-free 800 lines, often without the knowledge of the persona billed for the services. Id. 223 Id. 224 Id. 225 Id.

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301 that they were journalists, and they were le gally obligated to do so; NBC committed deceptive acts in connection with a contract and is therefore liable to th e SimTel representatives under the California fraud statute. The court found, howev er, that no fraud could be proved under the theory of misrepresentation becau se the representatives could not prove that they relied on the reporters statements to their detriment.226 The representatives admitted that they would have answered any questions about the telephone scheme if they had known they were speaking with reporters, and that the gist of what [he] was saying would have b een exactly the same, but that he might have worded some of his remarks a little differently.227 The representatives also admitted that their jobs required them to distri bute information about the company and that 97 percent of the people who inquire about SimTel ne ver enter into a busine ss relationship with the company.228 The court also disagreed with the represen tatives assertion th at the journalist had committed fraud by not disclosing their identities and that they were investigating the company using hidden cameras.229 Using the Ninth Circuits ruling in Deteresa the court ruled that the representatives had to demonstrate that they were in some kind of relationship with the journalists that re quired disclosure.230 The representatives failed to do so, and because of this, the court ruled that the journalists nondisclosure did not constitute fraud.231 The court also ruled that because there was no contract between the representatives and the journalists, the 226 Id. at 338. 227 Id. 228 Id. 229 Id. at 339. 230 Id. 231 Id.

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302 representatives could not recove r damages for fraud under state law, which applies to fraud committed by a party to the contractwith intent to deceive another party thereto, or to induce him to enter into the contract.232 Whether the plaintiff reasonably relied on st atements made by a j ournalist was also the crux of a First Circuit case. In Veilleux v. NBC ,233 the owners of a trucking company sued NBC for misrepresentation, among other things, alle ging that the broadcast company made false promises that it would not include a group criti cal of the trucking indus try, and that NBC would positively portray trucking in a investigative repo rt in which the trucking company agreed to participate.234 A producer for NBC contacted the trucki ng company stating that he wanted to do a trip with a long-distance truc ker to gather information on truc ker experiences and in order to provide a counter viewpoint to the publicity that Parents Agai nst Tired Truckers (PATT) was getting.235 The owners of the trucking company agreed to allow the producer to ride along with a trucker provided that PATT would not be incl uded in the broadcast. The producer did not disclose to the owners, however, that he had already interviewed members of PATT.236 NBC later broadcast a story including the interviews with PATT, footage taken on the trip with the trucker, and statements made by the trucker th at he violated federa l trucking regulations.237 The 232 Id. 233 206 F.3d 92 (1st Cir. 2000). 234 Id. at 102. 235 Id. at 103. 236 Id. 237 Id. at 104.

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303 trial court awarded the trucking company ow ners damages for negligent and fraudulent misrepresentation under Maine law.238 The First Circuit reversed this judgment on appeal as a result of NBCs promise to portray trucking in a positive light. According to the federal Court of Appeals, the company owners misrepresentation claims could not stand because the promise of favorable portrayal was too vague to be actionable.239 The claim of misrepresentation for the promise not to include PATT in the news story was, however, actiona ble and did not violat e the First Amendment.240 The court determined that a reasonable jury co uld find that NBC concealed their intention to include PATT in the broadcast, and that the ow ners reliance on this promise was reasonable.241 With regard to the promise to portray th e trucking industry positively, the court found that these statements should be viewed as puffi ng, which is not recovera ble under a theory of fraud.242 Quoting the court in Desnick, the court found that such puffery was common in investigative reporting: Investigative journalis ts well known for ruthlessness promis e to wear kid gloves. They break their promise, as any person of normal sophistication would e xpect. If that is fraud, it is the kind against which potential victims can easily arm themselves by maintaining a minimum of skepticism about journalistic goals and methods.243 238 Id. at 119. 239 Id. 240 Id. 241 Id. at 120. 242 Id. at 122. 243 Id. (quoting Desnick 44 F.3d at 1354).

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304 According to the First Circuit, the Maine cour ts would think that defendants positive assurances were simply too vague and laconic to inspire, on the part of a reasonable person, the reliance necessary for a misrepresentation claim.244 Further, the court found that if Maine courts were to ru le that NBCs promise of a positive portrayal was factual, it would then have to face the difficult issue of whether it would be constitutional to use so vague a yardstick in a misrepresentation action founded on speech relating to matters of public concern.245 Whether the portrayal of the truckers was positive enough could not be proven sufficient[ly] for First Amendment purposes.246 The actual or potential problems suggest that the promise to pr ovide positive coverage c ould be too contingent to satisfy constitutional norms.247 The court found, however, that allowing th e misrepresentation claim based on the promise not to include PATT did not cause the claim to suffer from constitutional deficiency. In doing so, the First Circuit noted the U.S. Supreme Courts rulings in Hustler Magazine v. Falwell248 and Cohen. In Hustler the Court ruled that public figur es needed to meet a stringent burden of proof for defamation in order to prevail on an emotional distress claim.249 In Cohen, the Court, in a promissory es toppel action, distinguished the Hustler case by finding that unlike emotional distress, promissory estoppel was not an attempt to circumvent the First Amendment 244 206 F.3d at 122. 245 Id. 246 Id. at 123. 247 Id. 248 485 U.S. 46 (1988). 249 485 U.S at 56.

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305 standard of proof required for a defama tion action, in order to recover damages.250 From these cases, and other major precedents like Desnick, the Veilleux court extracted five principles: First, the First Amendment is concerned with speech itself, not the t one or tastefulness of the journalism that disseminates it. Second, the Supreme Court has long recogni zed that not all speech is of equal First Amendment importance. Third, even when the information being disse minated is truthful, the press does not enjoy general immunity from tort liability. Fourth, the status of the plaintiff is of constitutional significance. Fifth, the type of damages sought bears on the necessity of constitutional safeguards.251 According to the First Circuit, these factors support a finding that the owners claim of misrepresentation based on the use of PATT in the broadcast did not violate the First Amendment.252 Under Maine law, misrepresentation was a law of general applicability; the misrepresentations made were highly material and the owners were not public figures or officials.253 The First Circuit also declined to adopt a rule requiring independent evidence in cases in which a news source claims a journalist breached a promise.254 Although recognizing the 250 501 U.S. at 671. 251 206 F.3d at 127. 252 Id. 253 Id. at 128. 254 Id. at 129.

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306 possible effects on newsgathering that misrepresentation claims against the press may have, the court found NBCs argument for such a rule unpersuasive: We recognize the danger that newsgathering mi ght be inhibited by forcing journalists to frequently litigate disputes concerning thei r purported representations to sources. An independent evidence rule would, however, grant journalists a gr eater license to lie than is enjoyed by other citizens. Defendants proposed rule would exceed any protection of newsgathering that the Supreme Court has yet fashioned, and would be more appropriately developed at that level, if at all.255 The First Circuit, therefore, remanded the mi srepresentation claim fo r further proceedings. Like the Wilkins and Vielleux courts, a federal court in Fl orida ruled that in order to recover for fraud, a plaintiff had to dem onstrate that his reliance was reasonable.256 In Pitts Sales, Inc. v. King World Productions the owners of a magazine sales company sued King World Productions after a story aired on Inside Edition examining the business practices of traveling magazine sales companies. A producer for Inside Edition secured a job with Pitts Sales by misrepresenting personal information on the job a pplication. While working for the company, he recorded the day-to-day activities of the ma gazine sales staff with a hidden camera and microphone.257 Portions of the film footage and reco rdings the producer ac quired while working for the magazine sales company were used durin g a news report that showed the treatment, abuse, and inadequate supervis ion given to young sales agents. Pitts Sales claimed that the journalists committed fraud by making misrepresentations and omissions, upon which the company relied, in order to gain employment with the company.258 The court that Florida law allowe d fraud claims against those who omit 255 Id. 256 Pitts Sales, Inc. v. King World Prod., 38 3 F. Supp. 2d 1354, 1363-1364 (S.D. Fla. 2005). 257 Id. at 1356. 258 Id. at 1362.

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307 information and places on one who undertakes to disclose material information a duty to disclose that information fully.259 Although Pitts Sales argued that the producer made misrepresentations or omissions, with knowledge of falsity, that injured the company, the court ruled that in order to recover damages for injur y, Pitts Sales reliance on the misrepresentations had to be reasonable.260 The court found, however, that Pitts Sales reliance on the producers misrepresentations was not reasonable.261 The court applied Food Lion, in which the grocery store claimed that it incurred damages relating to the administrativ e costs of hiring reporte rs who were working undercover. In that case the Four th Circuit determined that in order for the grocery store to recover damages related to the hi ring of the reporters, the store had to prove that it reasonably relied on the misrepresentations the journalists made on their employment applications and because of this it had incurred administrati ve costs related to hiring the reporters.262 That court found that the reporters had not ma de representations that they w ould be working for longer than one or two weeks, and Food Lion had not asked for this information.263 Further, North Carolina and South Carolina, the states in which the in vestigations occurred, were at-will employment states, meaning either the employer or the empl oyee can terminate employment at any time. The court concluded it was, therefore, unreasonable for Food Lion to be lieve that the reporters would work for a long period of time.264 The court also found that Fo od Lion could not recover wages 259 Id. (citing Gutter v. Wunker 631 So.2d 1117, 1118-19 (Fla. 4th DCA 1994)). 260 388 F. Supp. 2d at 1362-1363. 261 Id. at 1363. 262 Food Lion 194 F.3d 505, 513 (4th Cir. 1999). 263 Id. 264 Id.

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308 to the reporters because it had paid them for th e work they actually completed, and not based on the misrepresentations the reporters made during the hiring process.265 Using the Fourth Circuits reasoning in Food Lion the Pitts Sales court ruled that the magazine company could not prove that the prod ucers misrepresentations, made to get hired, proximately caused Pitts Sa les administrative costs.266 The producer did not state that he planned on staying with the company for an ex tended period. Further, under Florida law, employment contracts without a definite term are generally terminable at will by either party.267 The court also found that Pitts Sales regularly experienced a high employment turnover, and that the company did not a ssume how long a sales agent would work.268 The court ruled, therefore, that Pitts Sales could not prove it was damaged by the producers misrepresentations, nor could it recover the commissions it paid to the producer because the commissions were not based on the misrepresent ations that the producer made to get hired.269 Conclusion The statements journalists make to sources in order to gather information can result in liability for misrepresentation or breach of promise. The lead ing case for breach of promise is Cohen v. Cowles Media in which the U.S. Supreme Court ru led that journalists could be liable for breaching a promise and that the First Amendm ent provided no shield from liability. Post265 Id. 266 383 F. Supp. 2d at 1364. 267 Id. (quoting Iniguez v. American Hotel Register Co ., 820 So.2d 953, 955 (Fla. 3d DCA 2002)). 268 383 F. Supp. 2d at 1364 269 Id.

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309 Cohen, the courts have used the Supreme Courts d ecision to rule that the First Amendment did not insulate journalists from liability. In both breach of promise and misrepresentation cases, the courts examined the reasonableness of the plaintiffs reliance upon the journalists statements. In Food Lion, for example, the federal appellate court ruled that the grocery store coul d not have reasonably believed that the journalists were going to work for more than one or two weeks because the employment law in that state allo wed employees to quit at any time. That court did not allow the grocery store to recover damages. Plaintiffs may not recover damages for misrepresentation, according to the Desnick decision, when there is no actual damage from the false statements. So when journalists pretended to be patients to gather news at a medical clinic, there was not damage to the clinic owner. It appears then, that journa lists may be vulnerable to breach of promise suits after Cohen. In Cohen, the Supreme Court viewed the two newspapers as havi ng acted unlawfully to obtain the plaintiffs name even though the actual unl awful act came after his name was obtained. Because the newspapers methods were viewed as unlawful, the Daily Mail principle, which offers a very high level of protection for publishi ng truthful information, was not used. In cases in which this ruling was followed, the journa lists have been found liable for damages.

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310 CHAPTER 6 ANALYSIS AND CONCLUSION The institutional press plays a central ro le in American society. By providing information and acting as a surrogate for the public established news organizations are able to facilitate one of the fundament al purposes of the First Amendment: free and open debate leading to a politically informed people. Historically, journalists have been at the forefront of reporting on major scandals including those involving sanitation, health care for the mentally ill, and the presidency. Such newsgathering by reporters has prompted changes in law and society at large. To gather and disseminate this information, howev er, the press has at times used methods that fall outside of what is permitted by law. As a result, the journalists have faced civil action by private individuals and criminal prosecution by the government fo r their newsgathering methods. For the most part, these cases have been initiate d after the unlawfully ga thered information has been published. The U.S. Supreme Court has developed a principle aimed at protecting the First Amendment rights of news outlets that publish lawfully acquired, truthful information. That principle, which was created in Smith v. Daily Mail Publishing Co ., and later enunciated in Florida Star v. BJF require that a court deciding th e constitutionality of punishing the publication of truthful informa tion make certain findings with respect to the newsgathering methods and the potential effects of publication on the press. Specifically, the courts should consider whether the information was lawfully obtained, whether the information was already publicly available, and the like lihood that punishing publication w ould have a censorial effect on the news media. The Court, how ever, declined to answer in Daily Mail and Florida Star whether the press could be puni shed for unlawfully acquiring tr uthful information and then publishing that information.

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311 Two later U.S. Supreme Court cases also fa iled to provide a definitive answer to the question of the press liability for the unlaw ful acquisition of truthful information. In Cohen v. Cowles Media Co ., which involved two newspapers that published the name of an information source in violation of a verbal agreem ent, the Court declined to follow the Daily Mail principle. In Cohen, the Court expressed uncertainty concer ning the lawfulness of the information acquisition and asserted that the law contested by the newspapers wa s considered to be generally applicable; as such, any incident al effects on the freedom of th e press were not thought to be constitutionally significant. Ten years later, in Bartnicki v. Vopper while acknowledging that a telephone conversation was unlawfully recorded by a third-part y in contravention of the generally applicable federal wiretap law, the Court applied the Daily Mail principle in prohibiting the punishing of the publ ication of information of a pub lic concern. Both of these court opinions were very fact specific and cannot be generalized to provid e a bright-line rule as to how the courts would decide cases involving the unlawful acquisition of truthful information and the publication of the information. This dissertation used legal research methods to examine how the courts have decided cases in which members of the press have been sued for using unlawful methods to gather information, and have then published that inform ation. This research examined cases brought against members of the press under common claims of wiretapping, intrusion, trespass and fraud. To accomplish this project, legal databases were used to search for the major state and federal cases involving the news media and the comm on tort liabilities. The legal literature was reviewed to identify the major issues and theo ries involved in theses gathering cases. The literature was also used to pr ovide background for the questions to be answered in this study.

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312 All cases were analyzed for the courts tr eatment of the members of the press and the courts analysis of any First Amendment defenses Cases were first categorized by claim. The cases under each claim were examined for the main issues concerning newsgathering. The author explored whether the courts allowed First Amendment protection for the journalists newsgathering methods, the value placed by the courts on the information gathered, and the method of analysis the court used to decide the case. Chapter Three of this dissertation examined cases in which journalists were accused of violating federal or state wireta pping laws. These laws prohibit the surreptitious recording of private conversations, and the disclosure of those conversations. When journalists have not been active participants in in tercepting these conversations, or wh en the interceptions were not found to be unlawful, the courts have ruled that pub lication of the conversati ons were not unlawful. Journalists actively participating in the procurement of the secr et recordings have also found protection for the publication of the interceptions under the statut ory exemptions for recordings made by participants in a conversation and the re quirement that a plainti ff demonstrate that the interceptor had a criminal or to rtious purpose for making the record ing. The courts have almost overwhelmingly found that the gathering of inform ation for publication was not a criminal or tortious purpose. Chapter Four explored cases in which the media committed some kind of invasion, whether into privacy or onto private property, while newsgathering. For the most part, the courts have ruled that the journalists have no privileg e to invade privacy or to trespass while seeking information. Some courts have, however, creat ed novel reasons for excu sing journalists from liability for their tortious acts. If a journalist did not act jointly with govern ment officials, then they may not be liable for an intrusion while accompanying law enforcement onto private

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313 property. If journalists were acting in the public interest as testers, then they could not have trespassed. Yet, the public interest is not a great shield against liability. The courts have ruled that the public interest in the information gathered had to be balanced against the plaintiffs expectation of privacy. Privacy, whether under tort law or the Constitution, was a significant right in conflict with the journalists First Amendment rights. Chapter Five examined cases against members of the press for fraud or misrepresentation, breaking promises, rene ging on contracts, or outright lying. Cohen is the controlling opinion, and says that journalists may not violate laws of general applicability in order to gather news. Of great concern in cases involving journalists committing fraud or misrepresentation is detrimental reliance. The cour ts will not tolerate ac tions by journalists that induce a plaintiff to rely on a journalists promis e to the degree that it injures that person. The plaintiff must prove, however, that he had a reasonable reliance on a journalists promise to his detriment. If a plaintiff cannot demonstrate th is, a court will not find th e journalist liable for fraud or misrepresentation. Analysis The author explored th ree research questions: Research Question 1: Is Unlawfulness a Bar to First Amendment Protection for Ne wsgathering Activities? The unlawfulness of the method used to acquire information is not always a bar to First Amendment protection. In cases where a third party unlawfully acquired information and then passed that information on to a journalist, the courts have not barred First Amendment protection. In Bartnicki, for example, the U.S. Supreme C ourt acknowledged that the cellular phone conversation was unlawfully acquired, but because the journalist that disclosed the conversation was not involved in its acquisition, th e Court ruled that the journalist could not be

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314 punished for that publication. The Court based this ruling on two factors: that the punishment of third parties not involved in the interception would not deter further in terceptions, and that privacy was not an important enough interest to override First Amendment protection for publishing matters of public significance. Bartnicki appears to be the current standard for courts deciding cases in which journalists have not been direct participants in the unlawful intercep tion. The court in Jean v. Massachusetts State Police, for instance, followed the Bartnicki decision in extending First Amendment protection to a woman who published footage of a police se arch on her political Web site. In that case, as in Bartnicki the publisher of the unlaw fully acquired information received the footage from another source. The Jean court ruled that there was no compelling state interest in punishing the subsequent publisher of the inte rcepted material, even though the identity of the interceptor was known. The publishers knowledge that the material was obtained illegally did not lessen her Firs t Amendment right to publish it, a nd it prohibited the State from criminalizing the publica tion of the footage. Bartnicki and the cases that follow that opinion, s eem to contradict the assertions made by the author of the 1969 Harvard Law Review RECENT CASES article.1 That article focused on a case in which journalists were sued for inva sion of privacy for receiving stolen documents and using the information from the documents to write a column. The author of the RECENT CASES article argued that the court erred in not holding the journalists liable for invasion of privacy in the same way that the original intrude r would have been held liable. The author did recognize that the First Amendment protection for freedom of the press might preclude liability, 1 RECENT CASES Constitutional LawFreedom of the PressJudgme nt for Conversion Against Journalist Who Acquire and Publish Information with Knowledge that it was Stolen from U.S. Senators Files does not Violate Freedom of the PressDodd v. Pearson, 279 F. Supp. 101 (D.D.C. 1968) 82 HARV. L. REV. 921 (1969).

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315 as it would conflict with the publics right to be informed. At the same time, not holding the journalists liable might encourage more theft. The Bartnicki Court ruled, however, that punishing third parties did not deter further unlawful activity. Th e articles assertion that the freedom of the press might preclude liability proved correct as the Bartnicki Court found that the interest in privacy did not out weigh the First Amendment protect ion for publishing information important to the public. The courts have not extended First Amendmen t protection to member s of the press when there is a question about whethe r a journalist lawfully obtaine d the information published. In Peavy v. WFAA-TV, Inc ., the Fifth Circuit found no First Am endment protection for a television station because the court questioned whether th e station had actively procured the recorded conversations of a member of the school board through another source. The court noted that the conversations were illegally recorded, although not by the tele vision station. The WFAA-TV decision, unlike Bartnicki and the Bartnicki line of cases, appears to follow the RECENT CASES logic that would hold jour nalists liable for unlawful acts by third parties. Like the journalists in the case the RECENT CASES article examined, the journalists in WFAA-TV knew the recordings were not obtained with permission. In a law review article examining the link between the method of information acquisition and the level of First Amendment protection afforded the publisher of information, Professor William Lee argued that case law supported that ev en when journalists knew that information was supposed to be confidential, asking for that information was not illegal.2 In WFAA-TV the television station knew that the r ecordings were of private, argua bly confidential conversations. The television station did not ask for the recordings initially, but the third party recorder offered 2 William E. Lee, The Unusual Suspects: Journalists as Thieves 8 WM. & MARY BILL RTS. J. 53 (1999).

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316 to provide copies. Because television station ga ve the third party instru ctions on how to record the conversations, such inaction could be considered going beyond simply asking for confidential information. It should be noted, however, th at the Fifth Circuit decided WFAA-TV before the U.S. Supreme Court decided Bartnicki With guidance from the Bartnicki decision, the WFAA-TV court may have ruled differently, b ecause except for the journalists in WFAA-TV knowing the identity of the interceptor, the cases present similar facts. As in Bartnicki in WFAA-TV a third party recorded a conversation of public in terest. The recorded conversation in Bartnicki involved a teachers union negotiator and the uni on president discussing negotiations with the school board. In WFAA-TV the recorded conversation involve d a member of the school board talking about an insurance scheme concerning the school district. The Bartnicki Court ruled that the telephone conversation was a matte r of public interest. If the WFAA-TV court would have had guidance from Bartnicki, it may have found that the scho ol board members conversation was a matter of public concern. The WFAA-TV court may have found, then, that the publication of matters of public concer n outweighed the individuals interest in privacy. The case of Cook v. WHDH-TV also demonstrates that the courts will not grant First Amendment protection when it ques tions the lawfulness of a jour nalists newsgathering methods. In Cook a Massachusetts trial court ruled that a te levision station could be held liable for intrusion after a reporter leaned into a mans car window and held a microphone close to his face in an attempt to get an interv iew. The court ruled that even though people usually assume the risk of being observed when while in public, th e intrusion claim should be allowed because the man could have had an expectation of privacy while in his car. His decision to remain in his car could be seen as an indication that he had cr eated a limited sphere of privacy between himself

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317 and the rest of the public. The reporters leaning into the car window after the man refused to comment could be construed as an intrusion into that mans limited sphere of privacy. Therefore, the First Amendment would not prev ent the journalist from being held liable. The courts have repeatedly asserted that members of the press have no privilege to disobey the laws applying to all members of soci ety. Perhaps the most cited declaration of this comes from Dietemann v. Time, Inc. a case in which the Ninth Circ uit ruled that there was no First Amendment interest in protecting the news media from calculated misdeeds.3 In Dietemann reporters entered the home of an altern ative medicine practitioner and photographed him with hidden cameras and s ecretly recorded his conversati ons with them. The federal appellate court found not First Amendment protection for the j ournalists method of newsgathering. The Dietemann decision and similar rulings that find journalists liable for unlawful newsgathering correspond to an assertion by co mmentators that the First Amendment does not shield journalists form liability for unlawful acts. In their 1996 law review article, Walsh, Selby, and Schaffer argued that the First Amendment was not applicable to newsgathering activities.4 For the most part, the courts have made rulings in agreement with this argument. This is particularly so in the cases in which journalists were prosecuted under criminal statutes. In the State v. Cantor the court ruled that the state statute prohibiting the impersonation of a public official did not infringe on the journalists right to gather news. That law was considered applicable to the general public and not just members of the press. According to Professor Vincent Blasi, even when investigating the govern ment, journalists were not exempt from laws 3 449 F.2d 245, 250 (9th Cir. 1971). 4 John J. Walsh et al, Media Misbehavior and the Wages of Sin: The Constitutionality of Consequential Damages for Publication of Ill-Gotten Information, 4 WM. & MARY BILL RTS J. 1111 (1996).

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318 of general applicability.5 The criminal trespass cases demonstrate Blasis assertion. In United States v. Maldonado-Norat a case in which journalists were convicted of criminally trespassing on a naval base, the court held that they had no special right of access under the First Amendment. That court reminded the journalis ts that the U.S. Supreme Court ruled in Branzburg v. Hayes that the First Amendment did not pr ohibit incidental burdens on the press stemming from generally applicable civil or criminal statutes. In sum, when journalists were not involved in unlawful activities to gather news, the courts have found that the First Amendment offers complete protection. This includes situations in which the journalists received information that was unlawfully acquired by a third-party. When there is a question as to the journalists involvement with unlawful activities or the court finds that the journalist used unl awful methods to gather information, the First Amendment is not a shield from liability for tortious or criminal behavior. These findings demonstrate that the courts have not established a First Amendment privilege for journalists to behave unlawfully while gathering news. Research Question 2: What Value Have th e Courts Placed on Unlaw fully Acquired Information and its Use by the Press to Inform the Public? The value that the courts ha ve placed on unlawfully acquired information and its use by the press to inform the public varies. Courts wi ll explain the value placed on this information in terms of the public interest or public concern. Meiklejohns idea of what constituted information within the public interest was expression that allowed the individuals in society to make informed political decisions. But political decision s extended farther than the ballot. The courts seem to echo Meiklejohns conception of the pub lic interest in finding that information about 5 Vincent Blasi, The Checking Value in First Amendment Theory 1977 AM. B. FOUND. RES. J. 521 (1977).

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319 health, safety and large corporati ons to be in the public interest. But value of the information in the public interest is circumscribed by the method the journalist used to gather the information. Courts are less likely to fi nd a public interest in informa tion that has been unlawfully acquired as it implicates the privacy interest of private persons. This appears to be in agreement with Walsh, Selby, and Schaffer, who asserted that newsworthiness should not be considered in deciding whether a journalist sh ould be held liable for unlawf ul newsgathering. According to the authors, inquiring into newsworthinesswhet her the information was of a public interest failed to keep members of the media accountable for illegal actions, and would encourage more illegal conduct. In Rafferty v. Hartford Courant Co., for instance, the court ruled that two journalists were not working in the public inte rest when they invaded a private party and published an article about it. The court found that if the repo rters had gathered information about the party without committing intrusion it might have held some value to the public. But the court ruled that the public did not have a ri ght to know about everythi ng. Because journalists were considered only members of the public, it mean t that the press did not have a privilege to know everything either. Likewise, in cases in which journalists have been accused of harassment while newsgathering, the fact that the information th at the journalists sought might have been of interest to the public did not remove the journa lists liability for unlawful newsgathering. In Galella v. Onassis for example, the court found that a lthough Jacqueline Kennedy Onassis was a public figure and therefore subject to news coverage the journalists ability to gather information was limited. The journalist could only intrude if that intrusion was no greater than what was necessary to serve the public interest. This did not include harassing Onassis and her children. Similarly in Wolfson v. Lewis the court ruled that when journalists engaged harassing activities

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320 in order to gather information about the family of a health care executive, the journalists behaved unlawfully. Although acknowledging th at the journalists were res earching a topic important to the publicthe high salaries for health care execu tivesthe journalists conduct did not advance the goal of the public interest. It seems then, when journalists behavior does not comport with the law, the courts believe that the journalists have exceeded the bounds of simply invest igating their original subject, which might have held value for the public. In advocating fo r a privilege limiting liability for newsgatheri ng, Professor Andrew Sims sought to base it on principles from the law of libel that offered protection for matters of a significant public concern.6 Excluded from Sims proposed scheme for protection were things co nsidered prying, morbid and sensational. Wolfson and Galella demonstrate that the courts already ex clude prying newsgathering from First Amendment protection, even if there is a limited public interest in the information collected. Sims also claimed that when journalists intrude d to get a story, the j ournalist would have to prove that the information sought was of even more value than other information. In these cases, the journalist would have to pr ove that the information was of the more serious public concern. This category of information incl uded serious criminal violations, political corruption and threats to public safety. Much of the information sought in the intrusion cases did not rise to the level of a serious public concern. Therefore, activities like those in Rafferty Onassis and Wolfson were not of serious public concern. In deciding whether the information journalis ts gathered was in the public interest, the courts will usually balance the privacy interest of the private individuals with the right of the public to know about the information gathered. This means that if the court finds that the 6 Andrew B. Sims, Food for the Lions: Excessive Damages for Newsgathering Torts and the Limitations of Current First Amendment Doctrines 78 B.U.L. REV. 507 (1998).

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321 informations value to the public is high, then th e courts will find that the publics right to know outweighs the private individuals right to be le ft alone. Professor William Marnell wrote that societys search for truth lim ited the freedom of the press.7 In most of these newsgathering cases, the courts acknowledged a lim itation on the freedom of the pres s with respect to individual privacy. An individuals expect ation of privacy depended upon lo cation and the extent to which that individual was exposed to public observation. In Aisenson v. ABC then, the court ruled that a judge had no case for intrusion when he was filmed walking to his car in public. The fact that the judge was a public official al so weighed against his claim of intrusion. The court found that when an individual serves a public function, a great er intrusion into the i ndividuals activities is sanctioned. Even when the people the journalists are investigating are not public officials, the publicness of their activities may wei gh against their claim for intrusion. Wilkins v. NBC demonstrates this. The Wilkins court ruled that two business representa tives had no expectation of privacy against being filmed when they sat on a restaurants outdoor patio. The men met with the undercover journalists to discuss a pay-per-call scheme, and neither lowered their voices nor canceled the meeting when two additional people attended. This demonstrated that the representatives had no real expe ctation of privacy. Under Marn ells conception of the bounds on the freedom of the press, the journalists in Wilkins would not be limited in their search for the truth. But just because others could overhear a conversation, the individuals speaking did not automatically lose their e xpectation of privacy. In Sanders v. ABC a case in which a reporter went undercover at a telephone psychic company a nd secretly filmed her coworkers, the court 7 WILLIAM H. MARNELL, THE RIGHT TO KNOW (1973).

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322 ruled that the ability to overhe ar the conversations did not less en the coworkers expectations that those conversations were pr ivate. The Sanders case seems to extend more privacy to those in the workplace in comparison to Medical Laboratory Manageme nt Consultants v. ABC In Med Lab the federal court found that when undercover journalists entered into a private business and secretly recorded, they did not infringe upon any privac y interest by surreptitiously recording. These cases can be reconciled in that Med Lab involved interaction between private individuals and the public. Sanders, on the other hand, dealt with the interaction between coworkers. Where in Med Lab, journalists pretending to be me mbers of the public were invited into businesses, the journalist in Sanders pretended to be a coworker in order to record the private conversations. A coworker would have an expectation that his c onversation would not be shared wit the general public. A business owner who invites th e public into his business would not have a reasonable expectati on of privacy in what happens within view of the public. Professor James Albert argued that there s hould be a privilege for newsgathering in the public interest because this kind of activity promotes the general welfare.8 Perhaps the most pronounced demonstration of a cour t invoking this principle was in Desnick v. ABC a case in which the Seventh Circuit ruled that journalists that secretly record ed their interactions with the doctors in an eye clinic were not liable for to rts claimed against them. The court analogized the journalists to testers who investigate the adhere nce to federal laws prot ecting civil rights. In this case, the journalists were investigati ng whether the doctor wa s recommending unnecessary eye surgery to clinic patients. Further, the individuals who test compliance with federal laws do not infringe upon the rights of othe rs. Likewise, the reporters that entered the eye clinic did not 8 James A. Albert, The Liability of the Press for Trespass and Invasion of Privacy in Gathering the News--A Call for the Recognition of a Newsgathering Tort Privilege 45 N.Y.L. SCH. L. REV. 331 (2002).

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323 infringe upon the rights of the clinic owner because they only filmed in public areas and their private interactions with the doctors. But Desnick appears to be an exception. The Fourth Circuit expressly distinguished the Desnick opinion when deciding Food Lion v. ABC a case in which two reporters obtained employment in the deli section of a well-known grocery store by fals ifying their job applications. The court did not view the reporters in Food Lion as testers because the reporters did not gain entry into areas that the general public was allowed to access. In Desnick, the eye clinics were open to the general public. In contrast, the deli sections of the supermarket in Food Lion were only accessible by supermarket employees. While th e eye clinic, in a way, consented to having anyone enter and view the property, the grocery store only consented to allow its legitimate employees in the areas that the journalists secret ly filmed. Although the subject of the story in Food Lion, the sanitary conditions of the grocery stores deli sec tion, was of interest to the public, the court establis hed that the journalists methods fo r investigating the story went beyond what is permitted by the public interest. Nevertheless, the information gathered thr ough unlawful methods does not lose its public interest value, and is therefore pr otected from prior restraint. According to Lee, there were four reasons why the U. S. Supreme Court has not trea ted the method of newsgathering as relevant as to whether to issue an injunction. Both In re King World Productions and CBS v. Davis demonstrate Lees first reason: that newsga thering does not automatically disclose the consequences of publication. In In re King World a case in which a doctor requested an injunction precluding a news show from airing footage shot in hi s clinic with hidden cameras, the Sixth Circuit ruled that the plaintiff would have to demonstr ate that he would suffer a harm great enough to justify a prior re straint on the publication of th e hidden camera footage. The

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324 doctor could not justify the prior restraint on thes e grounds and so the court declined to issue the injunction. Likewise, in CBS v. Davis, a case in which a televisi on station obtained footage inside of a meatpacking plant th rough trespass, the U.S. Supreme Court ruled that the plaintiff had a heavy burden to prove that an injunction was constitutional. The Court noted that if issues of national security could not fulfill this burden, th en the possible criminal activity of the station would not either. This did not bar the broadcas ter from being susceptible to damages for any tortious harms it committed. Lees second reason for why the U.S. Suprem e Court does not inquire into the method of newsgathering when deciding whether to issue a pr ior restraint was that courts have to spend time evaluating the newsgathering method, which would affect the public interest in timely information. The First Circuit noted the public interest in obtaining timely information in In re The Providence Journal a case in which the federal appell ate court examined an injunction issued against the publication of information obtained from a government wiretap. The court used a test from Nebraska Press Association v. Stewart which examined whether the gravity of the evil promoted by publishing information requir ed a prior restraint. The court found that injunctions interrupt the mode of operation for daily newspapers that build reputations on being able to distribute current news to the public. Even small delays in publication could impede a newspapers ability to publish and cause some members of the pub lic to lose confidence in the newspapers competence. In sum, the courts place a public interest va lue on some information that is unlawfully obtained. Whether the courts apply such a label to unlawfully acquired information appears to depend on whether the plaintiff requests an injunction against the publication of the information. In theses cases, the courts will decline to issue an injunction on constitutional grounds. But this

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325 does not mean that the journalists are absolved from liability for any tortious or criminal actions they have committed. If a court does not find any public interest value in the information unlawfully gathered, it is because the court found that the journalist has gone beyond the boundaries of the public interest in obtaining the information. Therefore, journalists should ensure that their activities fall in line w ith what is deemed the public interest. Research Question 3: What Kind of Scrutiny Have the C o urts Used to Decide Cases Brought Against the Media for Unlawful Newsgathering, and How Is the Type of Scrutiny Used Determinative of the Outcome of These Cases? The kind of scrutiny the courts have used to decide cases against the media for unlawful newsgathering varies. With the exception of cases implicating criminal law, courts have used a balancing test to decide whether the journalists actio ns were unlawful. In Miller v. NBC for instance, when a news crew invaded the home of a heart attack victim, the court considered the totality of the circumstances surrounding the in trusion into the mans home. Whether the television station would be prot ected by the First Amendment depe nded on the intrusions degree of offensiveness. The more highly offensive the intrusion, the less likel y the station would be protected under the First Am endment. Likewise, in Wilson v. Layne, a case in which police allowed journalists to accompany them during the execution of a warrant, the U.S. Supreme Court had to balance the homeow ners Fourth Amendment right to privacy against the First Amendment right to freedom of the press. The Wilson Court decided that the First Amendment did not trump the Fourth Amendment. In both these cases and in other instances in which the court used balancing to decided whether journalists were liable for tortious vi olations, privacy rights set the boundaries of the extent to which the press can intrude into the private lives of individuals. In Miller the California court considered how offensive the intrusion was to a reasonable person. In Wilson, the consideration was the extent to which the intrusion violated the homeowners Fourth

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326 Amendment rights. The courts me thods of analysis appear to be similar to that proposed by Attorney Matthew Coleman, who argued that courts should us e a harm/benefit paradigm in deciding cases in which the press publis hes unlawfully obtained information.9 Colemans proposed paradigm would balance the privacy intere st of the private indivi dual with the harm to the private individual. If the individual was a public figure or involved in a matter of public concern, there would be less harm to the individual in intrusion. Miller and Wilson involved private persons not involved in matters of public concern, therefore, th e harm committed when members of the press invaded their homes was cons idered great, and the journalists were liable for intrusion. In the balancing tests used by courts to decided whether the First Amendment outweighed the private persons privacy rights the plaintiffs burden varies depending on whether the journalist was involved with the unlawf ul acquisition. It is, however, difficult to know exactly what level of scruti ny the court is using when decidi ng theses cases. Some courts have specifically stated the level of scrutiny applicable to the claims agai nst the journalist. In Bartnicki where the journalist was not involved in unlawfully acquiring the conversation, the Court used strict scrutiny. Strict scrutiny places the heaviest burd en on the plaintiff to prove that enforcing the law against the journalists was constitutional and requires the plaintiff to demonstrate a compelling government interest in enforcing the law. In Barnicki the plaintiff could not meet this burden. Theref ore, the journalist was not held liable for violating the wiretap statute. The Bartnicki decision was very fact specific, which denotes ad hoc balancing. It should be noted, however, that Barnicki is not the usual ad hoc balancing case. Unlike other cases in 9 Matthew J. Coleman, The Ultimate Question : A Limited Argument for Trafficking in Stolen Speech 55 OKLA. L. REV. 559 (2002).

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327 which the courts have employed ad hoc balancing, Bartnicki has proven very useful in deciding similar cases. In WFAA-TV, a case in which there was a quest ion as to whether the journalist participated in unlawful newsgathering, the Fifth Circuit used inte rmediate scrutiny. This meant that the plaintiff only had to demonstrate that there was an important government interest in holding the journalists liable for viola ting the wiretap statute. Unlike the Bartnicki Court, the WFAA-TV court appeared to use definitional balancing to decide the case by first defining the whether the stations activities were lawful, and then deciding the applicable level of scrutiny for the stations First Amendment claim. Once th e Fifth Circuit decide d that the stations newsgathering methods were not totally lawful, the court decided that the type of government interest needed to only be important, and not compelling for the plaintiff to recover damages. Professor Erwin Chemerinsky argued that inte rmediate scrutiny was the appropriate level of scrutiny to use to adequately examine newsga thering cases involving content neutral laws of general applicability.10 The WFAA-TV decision appears to demons trate some agreement with Chemerinskys argument. Those cases invol ving fraud and misrep resentation, however, although clearly not using strict scrutiny, do not a ppear to follow intermediate scrutiny. Cases like Cohen seem to apply a sort of strict liability determination, like that used in cases involving criminal statutes. Therefore, if the plaintiff offers enough proo f that the journalist broke a promise upon which the plaintiff r easonably relied, then the journalist will most likely be held liable for promissory estoppel. The courts, for th e most part, do not consider of the journalists constitutional rights. 10 Erwin Chemerinsky, Protect the Press: A First Amendment Standard for Safeguarding Aggressive Newsgathering 33 U. RICH. L. REV. 1143 (2000).

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328 In sum, the courts have not, as Profe ssors Bunker, Splichal, and Martin proposed, extended defamation case analys es to newsgathering cases.11 The Court in Cohen expressly declined to do so. But, the courts seem to ha ve already implemented Bunkers suggestion that there first be an inquiring into the plaintiffs mo tive for filing suit, except for the majority of the cases brought under promissory estoppel. The se cond part of Bunkers te st, an inquiry into whether the information sought would have been of great public intere st is also already implemented to a certain extent, as de monstrated in Research Question 2. These findings, perhaps, demonstrate Justic e Blacks noted dichotomy in the protection for speech versus the protection for conduct. Although none of the cases found demonstrated an absolutist theory of freedom of speech, the pr otection for publishing speech was very high, as demonstrated by the use of strict scrutiny in Bartnicki. In that case, th e journalist was not involved in any conduct. When conduct was at issue, as in WFAA-TV, the level of First Amendment protection decreased. Therefore, it should not come as a su rprise that publication and newsgathering, while both prot ected by the First Amendment, do not receive the same level of First Amendment protection. Conclusion The courts have not created a First Amendmen t privilege that protects journalists from liability for crimes or torts committed while newsgathering. Instead, while recognizing a limited constitutional protection for the freedom of the press, the courts have ru led that press freedom does not outweigh the rights of private individua ls. Unless there is some exemption for the behavior of the journalist written into the law, a journalist cannot claim that laws of general applicability do not apply to journalists. Perhaps then, this is the fulfillment of Justice Stewarts 11 Matthew Bunker, et al, Triggering the First Amendment: Ne wsgathering Torts and Press Freedom 4 COMM. L. & POLY 272 (1999).

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329 structural theory of the press. While the institu tional press is recognized for its role in society, it has no special privilege other than the ability to seek information, and publish that information. The First Amendment has created no right to information held by either the government or private individuals. But, the press has the right to seek what information it can find. The author found four key conclusions: Key Conclusion One The courts repeatedly granted First Am endment protection for newsgathering when members of the press were said to have used routine newsgathering methods. The courts have not, however, provided a definition of what c onstitutes routine newsgathering techniques, although providing some guidance as to what activ ities are unacceptable. According to the Ninth Circuit, trespass, theft and intr usion all fall outside of the bounds of First Amendment protection for newsgathering. The Florida Supreme Court ru led that surreptitious recording was not a necessary part of journalistic practice. Likewise, a Californi a appellate court ruled that journalism did not depend on the use of secret devices. Further, the courts have ruled that journalists may not harass or unr easonably hound a private individu al in order to gather news. Also, journalists may not induce detrimental reli ance on promises that the journalists do not intend to keep or facts that are untrue. Although the courts have indicated that ac tivities like inducing a detrimental reliance, theft, intrusion, trespass, and surreptitious r ecording may be unlawful, journalist and news organizations are left to figure out which news gathering activities are protected under the First Amendment. Perhaps this is beneficial. Blasi, although asserting that journalists should not be exempt form laws of general applicability, was c oncerned that the courts not create a code of journalistic ethics. In doing so, the courts would be usurping th e press freedom the courts are supposed to uphold, as journalist may censor cr eative newsgathering techniques. This could,

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330 perhaps, have the chilling effect on speech that the third prong of the Daily Mail principle warns against. Courts then should be careful, when deciding these newsgathering cases, not to create rulings that would appear to dictate the activities that news organizations can engage in when investigating a story. Key Conclusion Two The freedom of the press is concomitant w ith the duty of the press. Well-known is the duty of the press to serve the public by providing news so that, as Mieklejohn asserted, the public could make informed political decisions. But th e press also has the duty not to infringe upon the rights of others while providing th is service to the public. In Le Mistral v. CBS the court specifically noted that the rights of freedom of speech and the press did not outweigh personal rights of others. In exercising th ese freedoms, journalists were requ ired to use dignity and reason to balance the moral and social implications of both their newsgathering methods, and the publication of what they found while newsgatheri ng. Not to do so would be an abuse of these rights. In Wilson, also, the U.S. Supreme Court stated that the First Amendment did not outweigh other personal rights. But it is not just the protection of rights th at journalist must be conscious of, but they must also be circumspect in adhering to the law. As demonstrated in the criminal trespass cases, the courts will not grant journalis ts a special right of entry in to government-regulated property. Like other members of the public journalists are required to ab ide by the laws implemented to protect health and safety. These laws were al so meant to protect the rights of members of society. In this way, Marnells assertion that th e rights of the members of society provided the limitations on what was considered press freedom is correct. When society establishes laws protecting individual rights, the members of the press may not vi olate these laws without the expectation of liability.

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331 Journalists should then, inform themselves about the laws related to newsgathering methods. For example, they intend on usi ng a hidden camera or secretly recording a conversation, the journalists should ensure that they are in compliance with state and federal law. Likewise, news organizations may want to continue consulting with attorney s to ensure that their knowledge of the law as is rela tes to newsgathering is updated. Key Conclusion Three It is well settled publication receives the highest level of First Amendment protection. Newsgathering conduct, however, does not recei ve the same level of protection. In CBS v. Davis, while the U.S. Supreme Court refused to gran t an injunction against the news station that would prevent them from airing the hidden camer a footage, the Court did acknowledge that the plaintiffs could seek relief for damages from newsgathering. Perhaps then, this is a demonstration of marketplace theory. The First Amendment protects the publication of all kinds of information, no matter how gathered. The same cannot be said for the gathering of that speech. In fact, neither Milton, nor Justice Holmes in Abrams v. United States, mention conduct in gathering the information. It is understa ndable then, why newsgathering conduct receives significantly less protection than sp eech under the First Amendment. Journalists should not then engage in self-censorship with regard to publ ishing any of the information they obtain while gathering news. They should, however, recognize that the First Amendment not always absolve them from liability for any torts or crimin al activities committed while newsgathering. Key Conclusion Four In cases involving promissory estoppel, the courts are not consider ing speech, although a consideration of speech may provide important First Amendment protection for journalists. Instead the courts focus on a promise not to iden tify the source of information that the journalist made while gathering news. The problem with this kind of analysis is th at it seems to ignore the

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332 fat that both promissory estoppel and misrepresent ation have scienter requirements that say that the plaintiff must prove that th e journalist knew at the time of the promise that he was not going to fulfill the promise. The cases found demonstrate that there was no way that a plaintiff could prove this. In Cohen, by far the most important promissory estoppel cases, the journalists did not decide until after the promise that they were going to print the plaintiffs name. Further, the printing of the mans name, a nd the printing of the names of sources of information in Steele v. Isikoff and other similar cases, could be viewed as political speech. Cohen involved a story about a politi cal candidate. Likewise, Steele involved a story about the then president. According the dissent in Cohen, such information is polit ical speech deserving of the highest level of First Am endment protection. Under Meiklejohnian theory such speech would be protected because it would provide the public with information that would allow the making of informed political decisions. Another significant issue in the promissory estoppel line of cases is damages. For the most part, the damages claimed in these cases appear to be reputational or emotional, and therefore require constitutional defa mation analysis. By failing to do this, the courts are allowing plaintiffs to circumvent the constitutional safegua rds that the law of defamation provides. This may have a chilling effect on spee ch. The courts should revisit th e issue of promissory estoppel and misrepresentation in newsgathering cases in order to provide news organizations with the proper level of protection afforded for publication of information. Fa ilure to do so is antithetical to the tradition of protect ing publication demonstrated in previous cases. Future Research Future research on newsgathering and the First Amendment should focus on the areas of damages and new technology. One issue with resp ect to damages that ne eds further exploration is that of reputational or emotional damage s caused during newsgathering. Although for the

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333 most part, the courts have not allowed reput ational or emotional damages in traditional newsgathering cases, when promissory estoppel is considered as a part of newsgathering, such damages arise. Another issue for exploration wo uld be the application to the freedom of the press and theories about newsgathering to the Internet and bloggers. Although this dissertation noted some Internet related cases, for the most part this study focused on the traditional print and broadcast news. The prominence of the Intern et and blogging as ave nues for the public to receive their news make freedom of the press w ith regard to bloggers an issue ripe for study.

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334 LIST OF REFERENCES Albert, J. A., The Liability of the Press for Trespass and Invasion of Privacy in Gathering the NewsA Call for the Recognition of a Newsgathering Tort P rivilege 45 N.Y.L. SCH. L. REV. 331 (2002). AM. JUR. 2d (62A) Privacy 37 (2007). Bezanson, R. P., Means and Ends and Food Lion: The Tension Between Exemption and Independence in Newsgathering by the Press 47 EMORY L.J. 895 (1998). BLACK, H., A CONSTITUTIONAL FAITH (1968). BLACKS LAW DICTIONARY (2d Ed. 2001). Blasi, V., The Checking Value in First Amendment Theory 1977 AM. B. FOUND. RES. J. 521, 527 (1977). Blumler, J.G., Wrestling with the public interest in organized communications THE MEDIA IN QUESTION 51, 54-55 (K. Brants, et al, eds., 1998). Bunker, M., Splichal, S.L Martin, S., Triggering the First Amendment: Newsgathering Torts and Press Freedom 4 COMM. L. & POLY 273 (1999). Burnette, B. M. Investigatory Newsgatheri ng: Promoting the Public Interest or Invading Privacy Rights ?, 31 CUMB. L. REV. 769 (2000-2001). Carlyle, T., On heroes and hero-worship, and the heroic in history 92 (1901). Chafee, Z., FREE SPEECH IN THE UNITED STATES (1941). Chemerinsky, E., Protect the Press: A First Amendment Standard for Safeguarding Aggressive Newsgathering 33 U. RICH. L. REV. 1143 (2000). CHEMERINSKY, E., FEDERAL JURISDICTION (4th ed. 2003). Cohen, G.T., Protective Orders, Property Interests and Pr ior Restraints: Can the Courts Prevent Media Nonparties from Publishing Cour t-Protected Discovery Materials?, 144 U. PA. L. REV. 2463 (1996). Coleman, M.J., The Ultimate Question: A Limited Argument for Trafficking in Stolen Speech 55 OKLA. L. REV. 559 (2002). DIENES, C.T., LEVINE, L., LIND, R.C., NEWSGATHERING AND THE LAW (1999). DRESSLER, J., UNDERSTANDING CRIMINAL PROCEDURE (2002). Dyk, T., Newsgathering, Press Access, and the First Amendment 44 STAN. L. REV. 927 (1992).

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335 Egr, J.A. Closing the Back Door on Damages: Extending the Actual Malice Standard to Publication-Related Damages Resu lting from Newsgathering Torts 49 U. KAN. L. REV. 693 (2001). Emerson, T.I., Legal Foundations of the Right to Know 1976 WASH. U. L. Q. 2 (1976). Emerson, T.I., Toward a General Theory of the First Amendment 72 YALE L.J. 876 (1963). EMERSON, T.I., THE SYSTEM OF FREEDOM OF EXPRESSION (1970). Ewers, J., Dont Read This Over Dinner US NEWS and WORLD REPORT, Aug. 15, 2005, at 45. Feldstein, M., The Jailing of a Journalist: Prosecu ting the Press for Receiving Stolen Documents 10 COMM. L. & POLY 137 (2005). Feldstein, M., A Muckraking Model: Investigative Re porting Cycles in American History 11 HARV. J. PRESS/POL. 105, 109 (2006). FRANKLIN, M.A., ANDERSON, D.A., CATE, F.H., MASS MEDIA LAW 57-81 (2000). GANT, S. WERE ALL JOURNALISTS NOW (2007). GORDON, A.D., & KITTROSS, J.M., CONTROVERSIES IN MEDIA ETHICS (1999). Gutterman, R.S., Chilled Bananas: Why Newsgathering Demands More First Amendment Protection 50 SYRACUSE L. REV. 197 (2000). HELD, V., THE PUBLIC INTEREST AND INDIVIDUAL INTERESTS 183 (1970). HEMMER, Jr., J.J., THE SUPREME COURT AND THE FIRST AMENDMENT 2-9 (1986). Henkin, L., The Right to Know and the Duty to Wit hhold: The Case of the Pentagon Papers 120 U. PA. L. REV. 271 (1971). JACQUETTE, D., JOURNALISTIC ETHICS (2007). Jones, M., First Amendment Protection for Newsgathe ring: Applying the Ac tual Malice Standard to Recovery of Damages for Intrusion 27 HASTING CONST. L.Q. 539 (2000). Kantor, A.F., Upton Sinclair and the Pure Food and Drugs Act of 1906 66 AM. J. PUB. HEALTH 1202 (1976). Karnajia, P., Boehner v. McDermott: Trafficking in Illegally Intercepted Information 22 COMM. LAW. 10, 12-13 (2005). KEETON, W.P., PROSSER and KEETON ON TORTS (5th ed. 1984). KERPER, H.B., INTRODUCTION TO THE CRIMINAL JUSTICE SYSTEM (1972).

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336 Kirtley, J., Is it a Crime?: An Overview of Recent Legal Actions Stemming from Investigative Reports in THE BIG CHILL: INVESTIGATIVE REPORTING IN THE CURRENT MEDIA ENVIRONMENT 137 (2000). KUNZ, C.L., SCHMEDEMANN, D.A., DOWNS, M.P., BATESON, A.L., THE PROCESS OF LEGAL RESEARCH (2000). Lee, W.E., The Unusual Suspects: Journalists as Thieves 8 WM. & MARY BILL RTS. J. 53 (1999). Letter from James Madison to W.T. Barry, August 4, 1822, in LETTERS AND OTHER WRITINGS OF JAMES MADISON, FOURTH PRESIDENT OF THE UNITED STATES VOL. 3 (1867). LEVY, L.W., EMERGENCE OF A FREE PRESS (1985). Lewis, A., A Preferred Position For Journalism? 7 HOFSTRA L. REV. 595 (1979). LIDSKY L.B., WRIGHT, R.G., FREEDOM OF THE PRESS: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION (2004). Lissit, R., Gotcha! 17 AM. J. REV. 16 (1995). Lord, L., Perils of gotcha journalism U.S. NEWS & WORLD REPORT, Feb. 3, 1997, at 11. Lutes, J.M., Into the Madhouse with Nellie Bly: Girl St unt Reporting in Late Nineteenth-Century America 54 AM. Q. 217 (2002). MARNELL, W.H., THE RIGHT TO KNOW (1973). MCQUAIL, D., MCQUAILS MASS COMMUNICATION THEORY 8 (2000). Meiklejohn, A., The First Amendment is an Absolute 1961 SUP. CT. REV. 245 (1961). Methven, B.E., First Amendment Standards for Subseque nt Punishment of Dissemination of Confidential Government Information 68 CAL. L. REV. 83 (1980). MILL, J.S., ON LIBERTY (1859). Milton, J., Areopagitica, A Speech for the Liberty of Unlicensed Pr inting, To the Parliament of England 62 (1644). MISSOURI GROUP, THE, NEWS REPORTING AND WRITING (6th ed. 1999). Nick, D. Food (Lion) for Thought: Does the Media De serve Special Protection Against Punitive Damage Awards when it Commits Newsgathering Torts?, 45 WAYNE L. REV. 203 (1999). Nimmer, M.B., IntroductionIs Freedom of the Pre ss A Redundancy: What Does it Add To Freedom of Speech 26 HASTING L.J. 639 (1975).

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337 Nimmer, M.B., National Security Secrets v. Free Speech : The Issues Left Undecided in the Ellsberg Case 26 STAN. L. REV. 311 (1974). Note, And Forgive Them Their Trespasses: Applying the Defense of Necessity to the Criminal Conduct of the Newsgatherer 103 HARV. L. REV. 890 (1990). Paterno, S., The Lying Game 19 AM. J. REV. 40 (1997). POLLARD, A.F., THE EVOLUTION OF PARLIAMENT (1926). RECENT CASES Constitutional LawFreedom of the PressJudgment for Conversion Against Journalists Who Acquire and Publish Information with Knowledge that it was Stolen from U.S. Senators Fi les does not Violate Freedom of the PressDodd v. Pearson, 279 F.Supp. 101 (D.D.C. 1968), 82 HARV. L. REV. 921 (1969). RESTATEMENT (SECOND) CONTRACTS (1981). RESTATEMENT (SECOND) OF TORTS (1965) RESTATEMENT (SECOND) OF TORTS (1977). Scheim, C.C., Trash Tort or Trash TV?: Food Lion, Inc. v. ABC, Inc., and Tort Liability of the Media for Newsgathering 72 ST. JOHNS L. REV. 185 (1998). Siebert, F.S., The Libertarian Theory of the Press in FOUR THEORIES OF THE PRESS 39 (Fred S. Siebert, Theodore Peters on, & Wilbur Schramm 1956). Sims, A.B., Food for the Lions: Excessive Damages for Newsgathering Torts and the Limitations of Current First Amendment Doctrines 78 B.U. L. REV. 507 (1998). Starobin, P., Why Those Hidden Cameras Hurt Journalism N.Y. TIMES, Jan. 28, 1997, at A21. Stern, S.M., Witch Hunt or Protected Speech: Striking a First Amendment Balance Between Newsgathering and General Laws, 37 WASHBURN L.J. 115 (1997). Stewart, P., Or of the Press, 26 Hastings L.J. 631 (1975). TRIBE, L.H., AMERICAN CONSTITUTIONAL LAW (1978). Trigdell, A., Newsgathering and Child Pornogr aphy Research: The Case of Lawrence Charles Matthews, 33 COL. J. L & SOC. PROB. 343 (2000). Walsh, J.J., Selby, S.J., Schaffer, J.L., Media Misbehavior and the Wages of Sin: The Constitutionality of Consequential Damages fo r Publication of Ill-Gotten Information 4 WM. & MARY BILL RTS. J. 1111 (1996).

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338 BIOGRAPHICAL SKETCH Jasm ine McNealy was born and raised in Mi lwaukee, Wisconsin. After attending the University of Wisconsin in Madison, where she obtained a Bachelor of Science in journalism and completed another degree in Afro-American Studies, she enrolled at the University of Florida. In 2006, she completed a joint degr ee program, earning a Master of Arts in Mass Communication and a Law degree. She comp leted her doctoral studies in August 2008.