What some reporters get wrong about the First Amendment

Photo: B. C. Lorio/flickr.

THE FIRST AMENDMENT is having a moment. It earned a C+ on a recent report card from the Newseum Institute. It’s the beating heart behind The Post, about the publication of the Pentagon Papers. And it’s the through-line that connects countless controversies around the country: Trump’s cease-and-desist letter to Michael Wolff to try to halt the release of his book, a religious man’s refusal to bake a wedding cake for a gay couple, kneeling during the national anthem, and so on.

Given all that, you’d think Americans would know more about the First Amendment. Yet a recent survey showed that 37 percent of those polled couldn’t name one of its five freedoms, while 39 percent said Congress should be able to prevent the press from reporting on national-security issues without government approval.

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Journalists are not immune to misunderstandings of the First Amendment, despite their self-evident interests in the functionality and well-being of a free press (and, indeed, their long and important efforts to protect speech and press freedoms). This comes up occasionally at First Amendment conferences I attend, and it’s understandable to a large extent because this area, as a legal specialty, is home to more than a few puzzling cases.

I asked a dozen media law professors and attorneys what they consider common misunderstandings that journalists  have about the First Amendment and media law. Eleven shared their thoughts with me.

This was not a scientific survey, to be clear. I widened the inquiry to include media law writ large because the legal problems that affect journalists don’t always spring directly from the First Amendment. They might involve, say, privileges under shield statutes. Including such problems should yield a more complete appraisal of the relevant misunderstandings—which, by the way, aren’t shared by all journalists. These are general observations.

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Government action required

Katie Townsend, litigation director of the Reporters Committee for Freedom of the Press: “One of the most commonly misunderstood aspects of the First Amendment is that it only applies to government action. It doesn’t apply to private actors, so a social-media platform, for example, can’t violate the First Amendment.”

 

There are very few constitutional protections for newsgathering, and virtually none that apply just to journalists.

 

Greater press rights? News-gathering protections?

Sonja West, professor of First Amendment law at the University of Georgia (where she’s my colleague): “Journalists often overestimate how many and what kind of constitutional rights they enjoy. For the most part, the Supreme Court has said that reporters have the same First Amendment rights as everyone else, which generally means that we all have a right to be free from government interference when we speak or publish. Importantly, there are very few constitutional protections for news-gathering, and virtually none that apply just to journalists. The constitutional rights journalists have to access government information, for example, are the same rights as the public in general. There are, however, a number of state or statutory rights that might apply differently to journalists. These can vary from place to place.”

Mickey Osterreicher, general counsel of the National Press Photographers Association: “While photographing or recording in public, the press has no greater right of access than the public, but the press has no less right either. An example: Photographing a newsworthy event, the press may not be kept farther away than the public, but the press is not entitled to be closer just because it is the press. Some places, such as California, have codified a greater access right for the press, but that is a statutory right, not a constitutional one.”

 

The time it takes to prevail in a defamation lawsuit, in light of the strong First Amendment protections for journalism, surprises most reporters. Even long-time veterans.

 

Winning a defamation suit is hard

Charles Tobin, media lawyer at Ballard Spahr: “The time it takes to prevail in a defamation lawsuit, in light of the strong First Amendment protections for journalism, surprises most reporters. Even long-time veterans. While the substance of legal protections for reporters remains strong in this country—despite threats from the White House to ‘rewrite’ libel laws—the courts can be very, very slow. The First Amendment interest, unfortunately, does not typically hasten the process to get to victory.”

 

Rely on records

Leonard Niehoff, litigator and media law professor at the University of Michigan: “Journalists tend to undervalue the importance of expressly citing to a public record or an official proceeding whenever they can. In many jurisdictions, an accurate report on such a record or proceeding is legally bullet-proof, no matter how wrong the statement made in that record or at that proceeding is. Other sources may offer more interesting or dramatic fodder, but not provide the same legal armor.”

 

We need a federal shield

Lee Levine, media lawyer at Ballard Spahr: “The one I hear most often is some version of ‘We don’t need a federal shield law because we have the First Amendment.’ The truth is that although the Supreme Court has not closed the door on a First Amendment-based right of journalists to protect their confidential sources’ identities, it has yet to embrace such a right in so many words. And in the absence of a definitive ruling from the Supreme Court, some lower courts have rejected the notion of [such a] right in a number of contexts.

“The result has been that, in at least some cases, reporters have either gone to jail or been ordered to pay significant, escalating fines. The federal shield law that then-Congressman Pence championed during the Bush and Obama administrations would have been a comparatively good deal for working journalists. The next time there is an opportunity to get it passed (and there will be one), journalists would be well served to line up enthusiastically behind that legislation.”

 

Just because you found it online doesn’t mean you have a right to republish it, and there could be some serious copyright consequences.

 

Be careful with social-media content

Chip Stewart, media law professor at Texas Christian University: “The thing I see the most that surprises me, still, is a journalist publishing a photo with ‘photo from Facebook’ or ‘Instagram’ as the attribution, as if that magically means s/he has received permission to publish [the photo] because [it] was posted on a social network. I see it in students and professionals, and I’m always stunned by it. Just because you found it online doesn’t mean you have a right to republish it, and there could be some serious copyright consequences.”

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Going on private property

David Ardia, media law professor at the University of North Carolina-Chapel Hill: “There is a misconception that the First Amendment gives journalists the right to engage in news-gathering activities on private property when it’s open to the public. There is no such right.”

 

Paying the consequences

Frank LoMonte, executive director of the Brechner Center for Freedom of Information at the University of Florida: “The one phrase that I would be willing to abandon my First Amendment absolutism to see banned, under penalty of horsewhipping, from the journalistic lexicon is the phrase, ‘Free speech isn’t free.’ I hear and see that phrase all the time, and it’s like nails across my constitutional chalkboard.

“People are under the impression that the First Amendment isn’t triggered as long as the speaker is allowed to get the words all the way out of his mouth, even if the very next thing that happens is that he’s arrested, because, well, ‘free speech isn’t free’ and you must be prepared to pay the consequences. Well, yes and no. Free speech isn’t free from marketplace consequences, and your girlfriend is free to dump you, and your neighbors are free to shun you, but if a government agency imposes consequences, that’s functionally no different from restraining the speech in the first place.”

 

‘Thanks to New York Times v. Sullivan, I don’t have to call a public figure for comment before writing a story trashing her, because she’s a public figure and could never prove actual malice.’ This is how a little learning is a dangerous thing.

 

Taking care in stories about public officials/figures

Jean-Paul Jassy, media lawyer at Jassy Vick Carolan:It’s hard for a public official to win a defamation case, but it’s not impossible.”

Jane Kirtley, media law professor at the University of Minnesota: “This may not be common, but it’s an example from my days as executive director of the Reporters Committee for Freedom of the Press: ‘Thanks to New York Times v. Sullivan, I don’t have to call a public figure for comment before writing a story trashing her, because she’s a public figure and could never prove actual malice.’ This is how a little learning is a dangerous thing, illustrating how a reporter who probably took media law in college misinterpreted the Sullivan standard as an excuse for sloppy reporting, rather than a defense if you have the misfortune to be sued.”

 

Liability for republishing

This one, about the “republication rule,” is mine: With few exceptions, in libel law republishing a statement carries the same legal consequence as publishing it. That a source made the statement, and a journalist is just quoting it, would not be an effective defense for the journalist.

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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.