1. Introduction
Kevin M. Goldberg, Esq.
Fletcher, Heald & Hildreth, P.L.C.
Phone: 703-812-0462
E-mail: Goldberg@fhhlaw.com
Website: http://www.fhhlaw.com
Blog: http://www.commlawblog.com

2. Newsgathering
– Newsgathering
 Freedom of Information Act
 Confidential Sources
 Taping of Conversations
– Publication
 Invasion of Privacy
 Defamation

3. Freedom of Information Act (“FOIA”)
 Signed into law on July 4, 1966 by President
Lyndon B. Johnson
 All records of the agencies of federal government
must be accessible to the public unless specifically
exempt from this requirement
 “Disclosure, not secrecy, is the dominant objective
of the Act” – Department of Air Force v. Rose
(1976)

4. Agencies must make records available
upon request
– These records must be made available in the
form or format in which they are requested
– Each agency must make reasonable efforts to
maintain records in forms or formats in which they
are likely to be requested

5. Fees
 Agency can charge a reasonable fee for search time or copying
expenses if sought for commercial use
 Costs are limited to document duplication if:
 The records are sought for noncommercial use
And
 The request is made by an organization that is :
– educational
– noncommercial
– scientific
– news media

6. Exemptions
a. National Security a. Information that would
Information compromise personal privacy
b. Internal Agency Rules c. Law Enforcement Records
c. Information Exempted by h. Records of Financial
Other Statutes Institutions
d. Business or Trade i. Oil Well Data
Secrets
e. Inter-agency and intra-
agency memos or letters

7. Time For Response
1. Agency has 20 days after a request is made to
determine whether it will comply with the request
2. It can extend this period in unusual circumstances
3. In practice, almost no agency ever meets this deadline

8. Protection of Sources
Branzburg v. Hayes
 Majority (4 votes):
– Requiring journalists to appear and testify before state or federal grand juries does
not violate the First Amendment
– There is no constitutional journalists confidentiality privilege
 Powell Concurrence (1 vote):
– Advocated a case by case basis to determine whether there was a legitimate need
for the source or information or whether there is only a remote or tenuous connection
with the investigation
 Stewart Dissent (4 votes):
– Recognizes the importance of sources in reporting and the role of confidentiality.
– Fashions a 3 part test which has often been followed later by states and lower federal
courts:

9. 3 Part Qualified Privilege Requires
 The government must show that there is probable cause that
the newsman has information that is clearly relevant to a
specific violation of law
 The government must demonstrate that the information sought
is unique cannot be obtained by other means
 The government must demonstrate a compelling and
overriding interest in the information that makes it
central to the case

10. Shield Laws
 39 states have shield laws
– 12 are absolute
– The rest are qualified along the lines of the Stewart dissent
 17 more have judicial decisions formalizing the
privilege

11. Search Warrants Against Journalists
 Should Newsrooms be Subject to Search and
Seizure Laws?
 In 1978, the Supreme Court ruled that journalists
are subject to search warrants, just like any other
citizen (Zurcher v. Stanford Daily)
 But….in 1979, Congress passed the Privacy
Protection Act which says

12. The Government must show one of the following
in order to obtain notes or other work materials
from a newsroom
i. There is probable cause to believe the
reporter committed a crime
ii. Seizure of materials is necessary to prevent
injury or death; or
iii. The materials contain national security or
classified information

13. Searches for “documentary materials”
(video, audio, photo, etc.) government must
show one of the following:
 There is probable cause to believe that the reporter
committed a crime
 Seizure of materials is necessary to prevent
injury or death
 The materials contain national security or
classified info
 The journalist ignored a subpoena

There is a likelihood that the journalist would destroy the
info if subpoenaed

14. Taping Phone Calls
– It can be very helpful both as a way to get things accurate and
to document both your intent and your accuracy later
– It may also be illegal
 It is always illegal to intercept or record a phone conversation between other
people
 It may be illegal even if you are a party to the conversation
– Some states require 2 party consent (Maryland)
– Others only require one (District of Columbia)
Penalty can be a felony of up to 5 years in
prison and $10,000 fine!!!

15. Intrusion/Trespass
 This is conduct such as:
 Breaking and entering
 Surreptitious surveillance
 Unauthorized physical presence
 Unauthorized photography
 Does NOT require that anything be published
General Rule: Journalists are still subject to the same
laws as anyone else

16. Hidden Cameras: Don’t use cameras to
obtain what you cannot see in public
with your own eyes!!!
– Shulman v. Group W (California)
 Woman injured in car accident is entitled to jury trial
to determine whether media improperly intruded into
her seclusion by taping her conversations with nurse
at accident scene
– Food Lion v. ABC (North Carolina)
 Two reporters use false resumes to get jobs at
supermarket, secretly videotaping unwholesome
food handling practices.
 Lawsuit for fraud, breach of duty of loyalty, trespass,
and unfair trade practices
 Food Lion won compensatory damages of $1,402
plus punitive damages.

17. Publication
Invasion of Privacy (4 kinds)
– Intrusion
– Misappropriation
– Private Facts
– False Light

18. Misappropriation
– Also known as the right of publicity
– Involves using the name or likeness of another for
one’s own benefit
– The plaintiff cannot sue if his or her likeness is
used with regard to newsworthy conduct

19. Public Disclosure of Private Facts
 Widespread publication
 About the plaintiff
 Of private information
– Not in a public record
– Not in a public place
– Not already known
– Not (generally) about a public figure
 That would be highly offensive to a reasonable person, and
 Not newsworthy

20. False Light
 Involves placing a person in a false light in a manner
that would be highly sensitive to a reasonable person
or a person of ordinary sensibilities
 Often arise out of the use of a person’s likeness out
of context
 It is similar to libel but intended to compensate for
falsehoods that injure feelings rather than reputation

21. False Light Elements
 The widespread dissemination
 Of highly offensive
 False material
 About the plaintiff
 With knowledge of falsity or reckless disregard of the truth

22. Public Disclosure of Private Facts
1. This cause of action deals with unreasonable disclosure of
embarrassing facts, which are defined as revelations that
are so intimate and so unwarranted in view of the victim’s
position as to outrage community’s notions of decency
2. The statement must be highly offensive to a reasonable
person
3. The statement must not be of legitimate public concern

23. Libel

24. What we don’t do
 NO PRIOR RESTRAINT
– a. Prior restraints are situations where punishment comes
before publication rather than a fine or sentence
afterward
– b. If a criminal statute (or a civil fine) chills speech, then a
prior restraint freezes speech
– c. Often the government or some other entity will try to
enjoin publication of articles based upon various
means

25. Civil Libel
8 Elements to be Proven by the Plaintiff as a Result of New
York Times v. Sullivan
 Defamatory
 False
 Assertion of Fact
 About the Plaintiff
 Published
 With Fault
 Causing Damage
 Without a Privilege for the Defendant

26. Defamatory
 Something that reflects poorly on reputation,
morality, integrity, etc.
– libel per se: when statement is defamatory on its face
 Accusing someone of a crime or illegal activity
 Suggesting that a person is incompetent for his/her occupation
 Impugning the chastity of a woman
 Stating that a person has a “loathsome” disease
– libel per quod: when statement is defamatory in context and must be
proven through court testimony

27. False
 The First Amendment requires we protect some falsehood in
order to protect speech that matters – United States Supreme
Court in Gertz v. Robert Welch
 Requires only substantial truth
– A statement is not “false” for the purposes of libel, as long as it is
“substantially true.”
– Thus, if a man kills 4 people, but it is falsely reported as 5 people,
the court will probably find the statement to be “substantially true,”
and thus not a basis for libel

28. Assertion of Fact
 Statements of Fact vs. Statements of Opinion
– A general determination of whether something could reasonably be construed as a statement of
fact
– Is it capable of being answered “Yes” or “No”?
 Look at:
– Common usage or meaning of the specific language
– Verifiability of the alleged libel
– Full context of statement
– Broader context of statement (what sort of publication)
 NOTE!:
A false factual assertion will not be protected merely by prefacing the statement with “in
my opinion.” (e.g. “In my opinion, he is the murderer.”)

29. About the Plaintiff
 The statement must refer to a specific, identifiable
person
– Does not mean that you must identify by name
– Requires only that the plaintiff be readily identifiable to the
average reader through the statement
 Group Libel
– It is impossible to libel a specific person if the group to
which the statement refers to is too large
– Generally, the must be under 25 persons

30. Published
 Requires no more than making a statement
to a 3rd person
 Republication of a libel is a libel

31. With Fault
Public Official or Public Figure = Actual Malice
Private Figure = Negligence

32. With Fault – Public Official
 Public Official:
– Anyone with substantial policy making
responsibility

33. With Fault – Public Official Examples
 Professor at State Universities
 Public school principal
 Member of School Board
 Law enforcement officer
 Probation officer

34. With Fault – Not Public Official
 Deputy public defender
 Private lawyer doing state paid defense for
indigent
 Police informant
 Part time employees
 Staff employees

35. With Fault -- Public Figures
 All Purpose Public Figures:
– They are so well known by all that they are
immediately recognized by most of the population
– Examples:

36. With Fault – Public Figure

37. With Fault – Public Figure

38. With Fault – Not a Public Figure

39. With Fault – Limited Purpose Public
Figure
Those persons who have thrust themselves to
the forefront of particular public controversies
in order to influence the resolution of issues
involved

40. With Fault – Why is there a difference?
 These people have assumed special roles in society
and special prominence in resolution of public
questions
 These people have greater access to the media to
defend themselves
 In many cases, they have voluntarily exposed
themselves to risk of injury from defamatory
falsehood

41. With Fault – Actual Malice
 Again, this is based on the idea that
erroneous statements are inevitable in free
debate and that it must be protected if free
expression is to have the breathing space
needed to survive (like falsity)
 Applies to Public Officials and Public Figures

42. With Fault – Actual Malice, Continued
 A statement is made with actual malice if the writer
or speaker has knowledge that it was false or
made it with reckless disregard to its truth or
falsity
 This must be proven by clear and convincing
evidence

43. With Fault – Actual Malice, Continued
Examples of Actual Malice:
 The statement was made based wholly on an anonymous
unverified phone call
 The statement contains allegations so inherently improbable
that only a reckless person would put them in circulation
 The statement was published despite obvious reasons to doubt
the veracity of the informant upon whom the article is based or
the accuracy of his or her reports

44. With Fault – Actual Malice, Continued
 Court Cases:
– Harte Hanks v. Connaughton (purposeful failure to interview a person with
opposing viewpoint)
– Schiavone Construction Co. v. Time, Inc. (magazine distorted contents of a
FBI memo and falsely implied an unsupported connection to organized
crime)
– Sharon v. Time Inc. (relied on a “secret” document that magazine did not
have a copy of and had reason to doubt its existence)
– Goldwater v. Ginzburg, 414 F. 2d 324 (2d Cir. 1969) (actual malice where
magazine made psychological claims about 1964 presidential candidate
Barry Goldwater, despite the fact that Goldwater’s doctor denied the claims
and no experts supported it; magazine also distorted expert comments to
give false impression.)

45. Damages
3 Kinds:
 Compensatory
 Special
 Punitive

46. Damages -- Continued
Compensatory
a) Compensation for actual money loss or
provable monetary injury
b) usually must be shown before any other
damages can be collected

47. Damages -- Continued
Special
 Sometimes known as “general” damages
 Monetary compensation paid by publishers
for injury to reputation, injured feelings,
shame, hurt, humiliation, mental anguish

48. Damages -- Continued
Punitive
 Meant to punish
 Often well out of proportion to the amount
that is awarded for compensation

49. Defenses
Fair Report
 Protects against liability for publications of an
official action or proceeding or of a meeting
open to the public that deals with a matter of
public concern if the report is accurate and
complete or a fair abridgement of the
occurrence reported

50. Defenses -- Continued
Neutral Reportage
 When a prominent person or organization
makes serious charges against a public
figure
 What is important is that the charges were
made, not what they contain

51. Final Thoughts
 Remember, the laws in virtually every area we have
covered today vary from State to State – these are a
general overview
 Please feel free to contact me if you need more
information
 Your editor should know the law very well
 Thank you, good luck, and have fun!!!