Legal Eagle's-Eye View of New Era

By Moscou, Jim | Editor & Publisher, December 18, 1999 | Go to article overview

Legal Eagle's-Eye View of New Era


Moscou, Jim, Editor & Publisher


Just a decade ago, Gary Bostwick says, -Nobody even heard of the phrase, 'news-gathering torts.' Today, it's part of his curriculum while teaching California college students.

Bostwick, a First Amendment attorney and partner at Bostwick & Hoffman in Santa Monica, Calif., calls these latest legal tactics the dawn of a new era in media law. And he has the experience to say so. The 58-year-old counsel has represented clients on both sides of the bar, successfully suing and defending media organizations for 22 years. In 1991, he argued successfully before the U.S. Supreme Court that a public figure can recover libel damages if quotes are altered from their original meaning (Masson vs. New Yorker Magazine Inc.). Today, he teaches media law at the University of Southern California journalism school, and Loyola University in Los Angeles.

Here, in an edited interview, he sheds light on overzealous reporters, why the size of a newspaper matters, and the future of news gathering and journalism:

It seems like, in the past five years, there has been a focus by plaintiff attorneys on these news-gathering torts. What's happened?

Several things have happened in about that time frame. One is new technology and new ideas by people who are producing informative programs [that] have led to the use of techniques never thought of before. That includes finding people that you could never find, filming them without their knowledge, or [recording] them in audio. Journalists have also become more intervening in their desire to do their job. All of these things are moving so fast, things that we didn't expect could be done. So the law never took care of it.

At the same time, libel law has become more stabilized because of the New York Times vs. Sullivan case that occurred back in 1964. That law is not variant compared to the law of privacy in news gathering, for example.

Are broadcast journalism and technology driving this new legal front?

Not entirely. For instance, consider cases in which the media decide they should -ride-along with law enforcement. Whether, or how, or what the limits are in accompanying law enforcement is something completely new.

It seems like corporations are going farther than ever when trying to build a case against the media, like collecting affidavits.

That's a technique used by companies and others who have enough resources to pay for that sort of thing. The one or two situations I'm personally aware of, because I've done them myself, is to simply go out to all the people the press talked to, find out precisely what it was the reporters did, and what was said and what wasn't said.

That could be an expensive legal tactic to encounter, especially for a small publication.

Yeah. If you have an extraordinarily wealthy plaintiff that can afford to exercise his quirks or vengeance, that's one kind of case. And if you get a small paper it becomes simpler to publish an apology. They cut. They run.

News gathering seems terribly vulnerable right now. …

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