For most of this century, the press has grown accustomed to using the First Amendment as a shield against libel suits and government censorship.
But during the past decade, a new world of legal woe has been developing for the media--a guerrilla band of lawsuits that seek to sneak past First Amendment defenses and sap resources just as surely as a headline-grabbing libel suit.
The suits can be grouped under the inelegant catch-all title of "non-defamation torts"--legal wrongs perpetrated by the media that have nothing to do with harming an individual's reputation, as in the classic libel suit.
Put simply, these lawsuits treat the media the same as any business that harms its customers--like a manufacturer that markets a faulty lawnmower or car, a department store that fails to repair a broken sidewalk or a dishonest landlord who breaks a lease.
With its unique protection under the Bill of Rights, how can the media, in the eyes of law, be treated in the same way as a negligent lawnmower manufacturer?
Rather easily, it turns out.
* The U.S. Supreme Court opinion with the most negative impact on the news media in recent years had nothing to do with libel or access. Its 1991 decision in Cohen vs. Cowles Media Co. held that the First Amendment does not necessarily protect the media from breach of contract claims. The case arose in the context of a broken promise to keep a source confidential (see "Burning the Source," September 1991). The ruling has spawned a rash of similar lawsuits against the media.
* Another Supreme Court case that concerns many journalists is Soldier of Fortune Magazine vs. Braun. On January 11, the court declined to review a decision in the case by the U.S. Court of Appeals for the Eleventh Circuit. A "gun for hire" ad in Soldier of Fortune resulted in a $2 million negligence award to the family of Richard Braun, an Alabama businessman killed by a group that included the person who took out the ad. The magazine's lawyer, E. Barrett Prettyman Jr., predicts that the decision will create "a whole new world for plaintiffs' attorneys" who will sue the press for negligently publishing ads.
* The creators of all kinds of expression, from rap songs to television miniseries, are being sued for "causing" crimes through incitement or "copycat" motivations. The widow of Texas state trooper Bill Davidson is suing rapper 2Pac Amaru Shakur and Time Warner, his distributor, for inciting Davidson's murder with anti-police lyrics. Ronald Ray Howard, accused of the murder, had a copy of Shakur's violence-laced "2Pacalypse now" tape in his car when the trooper was shot.
"This is not a constitutional question and not a freedom of speech question," Ron DeLord of the Combined Law Enforcement Associations of Texas told the Austin American-Statesman last September. "Ford produced the Pinto.... People died because of problems associated with the Pinto. Well, a trooper died because of a product produced by Time Warner. What's the difference?"
The difference, of course, is the First Amendment. Until now, most courts have recognized that while the framers of the First Amendment may not have had Soldier of Fortune or 2Pac in mind, speech deserves special protection.
"The reason we protect ideas is not that they are harmless. They may in fact be extremely dangerous, but we put up with them," notes Portland, Oregon, attorney Jonathan Hoffman, who has tracked non-defamation lawsuits against the media for years. "Ideas may be dangerous, but they are entitled to more protection than lawnmower blades." To protect and foster useful speech, the theory goes, we have to tolerate some reckless speech as well.
That line of thinking has been reinforced by a long line of cases in which the media have been sued for a range of mishaps and damage other than libel. But the media's winning streak could end with the newest wave of suits for two reasons: public disapproval and money. …