Constitutionality of Publication Damage Awards Based on Newsgathering Torts

Article excerpt

The increasing number of newsgathering tort claims has generated a heated debate over how far the First Amendment should protect the press from tort liability. (1) First Amendment proponents have contended that newsgathering is an essential part of news dissemination that lies at the heart of freedom of the press. (2) "[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated," (3) and if news were cut off at its source, the constitutional right for publication would be severely chilled. (4) Yet, it is not an unrestrained right, plaintiffs in newsgathering cases have argued. The First Amendment does not guarantee the press a special right of access to information that is not available to the general public, (5) and freedom of the press does not give the media a license to trespass or intrude upon the seclusion of private premises. Furthermore, generally applicable laws do not offend the First Amendment. (6) In other words, journalists are not an exception, for example, from appearing before a grand jury to testify about what they witnessed in the course of newsgathering. (7)

The media often is involved in multi-million-dollar civil sanctions for misconduct in the course of newsgathering. The primary issue is whether the First Amendment in tort cases such as intrusion, trespass, or intentional infliction of emotional distress precludes the plaintiff from recovering publication damages. (8) To recover publication damages in a libel case, plaintiffs must prove that the media published the information at issue with actual malice, which is knowledge of falsity or reckless disregard for the truth. (9) It is extremely difficult for a plaintiff to demonstrate the subjective standard of actual malice, (10) and damages rarely are awarded based on publication of information about a matter of public concern because the First Amendment guarantees "uninhibited, robust, and wide-open" debate about matters of public concern. (11) In many newsgathering cases, plaintiffs seek damages resulting from newsgathering practices engaged in prior to publication. Showing that the media's tortious activities have violated plaintiffs' various rights and done damage to the plaintiffs (excluding reputation) is the determinative factor for damage awards. In short, plaintiffs attempt to get publication damages by bypassing the actual malice standard that they hardly can prove in libel cases. (12) A group of scholars pointed out this pattern.

   For most of this century, plaintiffs have sought to employ tort 
   theories other than defamation in their efforts to halt, or to 
   obtain redress for harm done to them by, press publication. Their 
   obvious purpose has been to evade the common-law and constitutional 
   hurdles that protect the press from actions for libel. (13) 

The question of awarding damages on the basis of subsequent publication of tortiously acquired information was intensely debated in the well publicized case, Food Lion v. Capital Cities/ABC, (14) which involved PrimeTime Live's investigative reporting. This article addresses the constitutionality of publication damages awards based on newsgathering torts. Specifically, it whether publication damages for torts committed in the course of newsgathering are constitutionally permissible. To answer the question, it analyzes Food Lion and the interplay of Hustler Magazine v. Falwell (15) and Cohen v. Cowles Media Co. (16)


First Amendment provides that "Congress shall make no law ... abridging the freedom of speech, or of the press...." (17) This constitutional protection for the press was intended to ensure "unfettered interchange of ideas [and opinions] for the bringing about of political and social changes desired by the people." (18) In free debate, erroneous statement is unavoidable and "it must be protected if the freedoms of expression are to have the `breathing space. …