Press Behavior, Newsgathering and the Law

Introduction

Freedom of speech and the press are considered among the most important characteristics of a democratic society. In most democratic societies, the press has undergone a long journey to reach the status that it has today. Throughout history, there have been several limitations and constraints in the way of free speech and free press. “In the US, England, France, and Sweden, it took several centuries to move from an authoritarian model of the free press to one that embraced libertarianism.”[1] In other words, the freedom of the press and speech we enjoy today has evolved to its current status over a very long period of time. The United States’ history includes imprisonment and other punishments for speech even in the twentieth century. For instance, Congress passed the Espionage Act of 1917 which allowed the government to punish people for speech that could obstruct military recruitment.[2]

The freedom of speech and the press is not an absolute freedom[3] there are certain limitations to it, for instance, speech that involves defamation, libel, incitement to imminent lawless action, or true threats could be punished and there are several Supreme Court opinions explaining why obscenity, conspiracy, nude dancing, and threats are not protected under the First Amendment.[4]

Even though the freedom of speech and the press has significantly advanced throughout the years, yet, First Amendment scholars believe that there is still room for improvement to further the freedom of expression especially when it comes to that of the press.[5] Several legal scholars argue that the First Amendment has already drawn a distinction between the speech and the press by explicitly mentioning each of them separately. Therefore, the press as an institution should be given some extra advantage and privilege to easily access and freely disseminate information as compared to the general public. Otherwise, the Press Clause would be a constitutional redundancy if the press is not treated differently.[6]

Similarly, Professor Baker argues that “the protection under the First Amendment should include all conduct that advances the key First Amendment values unless the conduct is coercive or physically injurious, or intended to be improperly obstructionist.”[7] Another First Amendment scholar Timothy Dyk argues that the press should be given special recognition, access, and privilege as an institution because the press’s presence serves the free flow of information in a way that the public access cannot.[8] Dyk argues that the press serves as an agent for the general public, it attends events with the purpose of reporting them to the general public. On the other hand, the general public may pass through a newsworthy event with no intentions of reporting it to the public who might need to be informed about it.

Although lower courts have sometimes treated even criminal behavior of journalists during the newsgathering process with leniency.[9] For example, in United States v. Matthews,[10] the court Judge Williams recommended that Matthews serve his sentence in a halfway house.[11] Despite the fact that Matthews was involved in criminal activity, he claimed that it was for newsgathering purposes.[12] However, the Supreme Court of the United States has not yet explicitly acknowledged any special privileges for journalists or for the press as an institution. In Branzburg v. Hayes the court held that requiring a journalist to appear and testify before state or federal grand juries does not abridge the freedom of the speech and press guaranteed by the First Amendment.[13] In addition, reporters and the press as an institution have been found liable for invasion of privacy,[14] trespassing,[15] and other unlawful actions.[16]

This paper provides a brief overview and analysis of a few of the landmark cases that deal with the tortious or questionable press behavior in the course of news gathering and publishing. In addition, this paper will provide a brief explanation of how and why the court came to its decision and whether the outcomes of those proceedings are consistent with the First Amendment.

Context and Background

In the landmark opinion of Branzburg v. Hayes Justice White wrote that “without some protection for seeking out the news, freedom of the press could be eviscerated.”[17] Branzburg was a reporter who wrote a story for a Louisville newspaper in which he interviewed people who were producing and using drugs. The state grand jury subpoenaed him to testify and disclose the identities of the drug producers and traffickers. Branzburg refused to do so on the grounds of the First Amendment, and he further contended that the Kentucky reporters’ privilege statute[18] protects him from revealing information that he received in confidence. The Supreme court held that the average citizen is often forced to testify and disclose information to the grand juries and reporters are not privileged to withhold information during a government investigation. The court held that requiring reporters to disclose confidential information to grand juries does not violate the First Amendment because it does not impose prior restraint or involve government intervention.[19]

In a dissenting opinion, Justice Douglas wrote that not allowing the press to withhold information that they received in confidence might cause confidential sources to dry up and the “fear of exposure will cause dissidents to communicate less openly to trusted reporters.”[20] In addition, editors and critics will restrain from writing or publishing due to the fear of accountability, he argued.

The court’s decision in Branzburg might be in compliance with the First Amendment, but it creates the problem of requiring reporters to assist law enforcement in fighting crime.[21] In a dissenting opinion Justice Stewart wrote that without giving journalists the protection to promise confidentiality to their sources “the court invites state and federal authorities to undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of the government.”[22] This he said would impair the performance of the press.

There are other instances as well where the courts have left journalists and the press vulnerable to legal actions which might create a chilling effect on journalists and the press to seek out and publish information that the public needs to know. For example, in Cohen v. Cowles Media Co. the court ruled that the First Amendment does not bar a lawsuit against a news outlet that breaks the promise of confidentiality to a source.[23] Cohen was a campaign manager who shared documents with two news reporters indicating that an opposing candidate had a criminal record. Although Cohen had received a promise of confidentiality from the reporters, but the stories identified Cohen. As a result, Cohen lost his job, which led him to sue the papers for breach of contract. The Minnesota Supreme Court ruled that Cohen’s claim relied on a state law called “promissory estoppel” which prevents a promisor from breaking a promise. The Minnesota Supreme Court contended that enforcing the promissory estoppel on the press would violate the First Amendment’s press clause.[24] However, the Supreme Court of the United States reversed the decision and found no violation of the First Amendment. The court ruled that the press is not immune to generally applicable laws.[25]

In a dissenting opinion, Justice Blackmun wrote that the publication of Cohen’s name was a publication of truthful information, hence, to punish the publishing of 1) lawfully obtained, 2) truthful information 3) about a matter of public interest, there needs to be a state interest of the highest order. Justice Blackmun also indicated that the promise of anonymity, in this case, arises in the context of the First Amendment, hence the lowers courts’ decision is premised not on the identity of the speaker but on the speech itself. Meaning that the Minnesota Supreme Court is not trying to create an exception or immunity from the laws of the state for the press. He further argued that the context of the First Amendment must be added to the equation because this case involves a political source involved in a political campaign.[26]

Critiques of the court’s opinion in Cohen also believe that because the Supreme Court made its decision without considering the First Amendment issue, it created a dangerous precedent for investigative journalism. A number of legal scholars argue that the “dismissal of the newspapers’ First Amendment concerns has turned Cohen into a First Amendment neutralizer.”[27] Meaning that the case has become a precedent for dismissing First Amendment defenses.

Another landmark case concerning questionable newsgathering practices and press behavior is Food Lion, Inc. v. Capital Cities/ABC. In Food Lion. In this case, two ABC reporters used undercover reporting techniques by using false resumes to get jobs at Food Lion, Inc. They secretly videotaped Food Lion’s unsanitary food handling practices and the sale of meat that was past its expiration date. Food Lion sued on the basis of unfair trade practices, fraud, trespass, and breach of contract. A jury awarded Food Lion about $1,400 in compensatory damages and more than $5.5 million in punitive damages. However, the district court reduced the total damage award to $315 million. On appeal, the Fourth Circuit Court dismissed the fraud claim and nearly all of the damage award but it upheld Food Lion’s claims on the breach of duty and trespass.[28]

The court found that ABC could not be held liable for any stock damage or loss of revenue because the claims made by ABC’s reporting were true, regardless of how the information was collected. And that the damages were caused by Food Lion’s unsanitary food handling practices rather than by ABC’s reporting. In addition, the court held that in order to receive punitive damages, Food Lion had to meet the New York Times v. Sullivan[29] standard of “actual malice” which would require Food Lion to prove that ABC published the information with reckless disregard for the truth.[30] However, the court still affirmed Cohen and argued that the press has no special immunity from the application of generally applicable laws.[31]

Legal scholars argue that the Food Lion decision was influenced by the Supreme Court’s opinion in Cohen which has left journalists and the press “vulnerable to legal actions” and has weakened the press’s ability to expose wrongdoing in the public interest.[32] In addition, scholars believe that Cohen’s and Food Lion’s decisions often have an influence on future decisions when undercover reporting or abnormal newsgathering techniques are under question and that these cases have “attacked journalistic methods instead of the end product.”[33]

Although, the Supreme Court of the United States has never explicitly recognized any First Amendment privilege for the press beyond that given to ordinary citizens. But sometimes at the lower courts, journalists are given some privileges and are treated with leniency when the court is convinced that “it is correct to mitigate damages because of the news purpose of a tortious activity.”[34]

For example, in Shulman v. Group W Productions, the California Supreme Court contended that even though the First Amendment does not provide protection to criminal or tortious behavior of the press, but it is in the strong interest of the society to have complete reporting of the events.[35]

In Shulman v. Group W Productions, Ruth Shulman and her son, Wayne Shulman were injured in a car accident when a medical transport and rescue helicopter crew accompanied by a video cameraman for Group W Productions came for their rescue. The cameraman filmed the rescue operations which were later on broadcasted on a documentary television show. Shulman filed a lawsuit against Group W Productions for invasion of privacy and public disclosure of private facts because the broadcast contained a conversation between the rescue workers and Shulman. Group W Production argued that the newsworthy content of the show merited First Amendment protection. On appeal, the appellate court reversed and held that there were triable issues of fact with the broadcast’s newsworthiness and publication of private facts.[36]

The California Supreme Court affirmed in part and reversed in part the appellate court’s judgment. It held that the broadcast was a newsworthy issue of public concern and therefore could not be held liable under the private facts claim. Though the court held that Group W had no First Amendment privilege to intrude on Shulman’s private communications and the mere fact that Group W was in pursuit of a news story does not justify an otherwise offensive intrusion.[37]

One common theme across most of the cases around the First Amendment is the public interest purpose that the media serves. The courts have recognized that reporters’ behavior and surreptitious newsgathering techniques in some cases might not be considered highly offensive when it serves the public interest.[38] The public interest and other factors that inform courts’ decisions in cases like the ones mentioned above will be discussed in the next section.

Legal Discussion

From reading about the abovementioned, cases it becomes clear that the press has no broad immunity from the application of generally applicable federal or state laws. However, the outcomes of the decisions involving press protection and press behavior depend on various factors including but not limited to the press’ intent,[39] involvement of legitimate public interest,[40] plaintiffs being public figures,[41] and concerns over First Amendment issues.[42] The reason the courts reached their conclusions in the aforementioned cases was also highly influenced by these factors. These factors are discussed individually below:

The First Amendment Issue

Several times the court has argued that the First Amendment does not guarantee protection from generally applicable laws. In Branzburg the court did not find a violation of the First Amendment because there the government was not imposing any prior restraint or intervening in the newsgathering or publishing process. Even publishing lawfully obtained, truthful information of public interest is not protected from the application of generally applicable laws as the court ruled in Cohen.[43] However legal scholars have highly critiqued the Cohen’s Court. Some scholars argue that the Supreme Court was “simply wrong” when it ignored the First Amendment concerns in Cohen as the court believed that the tort was “generally applicable.”[44] The reason why scholars believe that the Supreme Court was wrong, is because they believe that the court had already granted protection to the press from tort laws such as libel and privacy in New York Times Co. v. Sullivan even though libel is generally applicable. “The court has also never explained the extent to which newsgathering is protected under the First Amendment and Cohen was a missed chance to do so clearly.”[45] As mentioned earlier, critics believe that the Cohen case has turned into a First Amendment neutralizer and a precedent for dismissing First Amendment defenses.[46]

Legitimate Public Interest Concern

Another important factor that influences the courts’ decisions, is the Public Interest concerns. This is so important that advocates for press protection argue that because the press serves the public interest, it deserves some special protection, and that protection, they argue, is guaranteed by the First Amendment’s press clause. In a 1974 speech, Justice Potter Stewart said that the Press Clause would be a “constitutional redundancy” if it was meant only to protect individuals’ freedom of expression.[47] Justice Stewart argued that the intent of the Press Clause is to protect the press as an autonomous “Fourth Estate” to serve as a watchdog on government.[48]

The public interest aspect of questionable or surreptitious newsgathering and reporting has been considered and discussed by the courts in almost all of the aforementioned cases. In fact, the courts set the public interest as a standard for mitigating the press conduct. For example, in Shulman v. Group W Productions, the California Supreme Court ruled that because of the strong public interest in the complete reporting of the traffic accidents, Group W could not have been held liable for the public disclosure of private facts claim.[49]

Other times, when the court is not convinced about the legitimate public interest, it has ruled against the media. For example, in Wolfson v. Lewis, the U.S. District Court for the Eastern District of Pennsylvania found that the television reporters had engaged in a course of conduct that was unrelated to a legitimate public concern or newsgathering purpose instead the reporters were trying to obtain entertaining background for their TV show.[50] Hence the court ordered to enjoin the activities of the defendants – Paul Lewis and Stephan Wilson – the producers of the TV show Inside Edition. The court ordered the Inside Edition crew to refrain from “engaging in conduct, with or without the use of cameras and sound equipment, which invades the privacy of Richard Wolfson, Nancy Wolfson, and their children, including but not limited to actions of harassing, hounding, following, intruding, frightening, terrorizing or ambushing.”[51] Even though the plaintiffs, Nancy Wolfson and her husband Richard Wolfson were public officials and the defendants contended that their investigation was protected by the First Amendment. However, the court found that the defendants went too far and invaded the plaintiffs’ privacy while the plaintiffs were on a vacation with their family members.[52]

Protecting the media’s First Amendment rights without sacrificing privacy and/or emotional distress, or vice versa has apparently been a challenge for the courts. However, every time the consideration of newsworthiness and public interest of the issue has helped inform the court’s decision on which one to sacrifice, the privacy or the free press.

As opposed to Wolfson v. Lewis the New York Court of Appeals in Howell v. New York Post Co. decided in favor of the media defendant when the court was convinced that the issue was of significant public interest and the newspaper’s conduct – a trespass – was “not so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.”[53] The court held that the photograph taken and published without consent with an accompanying article was not an advertisement but a matter of public interest hence the invasion of privacy claim could not be justified.[54] First Amendment scholar Edwin Baker has said in another context that “the notion that the law could require the press to gain consent before describing or picturing the day's newsmakers or society's corrupt officials is a constitutional non-starter.”[55] This case clarifies that the courts may allow some protection to media defendants when there is public interest involved and the media conduct is not so outrageous or extreme.

However, there are arguably some inconsistencies in the courts’ decisions when it comes to public interest issues. For instance, in Zacchini v. Scripps-Howard Broadcasting Co. the U.S. Supreme Court reversed the Ohio Supreme Court’s decision that the state law must allow a privilege to report on matters of legitimate public interest.[56]

Public Figure/Public Official Plaintiff

In the landmark opinion on the New York Times Co v. Sullivan, the Supreme Court of the United States ruled that public officials or public figures in a libel action have a higher burden of proof than most private persons. The court ruled that in order to award damages for libel action to a public official, proof of “actual malice” is required.[57] The Vermont Supreme Court in Dun & Bradstreet, Inc. v. Greenmoss Builders relied partially on New York Times v. Sullivan to reach the conclusion that non-media defendants receive less protection in libel actions. However, the Supreme Court later clarified that it was not solely because of the media defendant that Sullivan was required to show proof of “actual malice”, but it was the involvement of the public official and public concern that required the plaintiff to bear the burden of proving actual malice.[58]

Motives for Surreptitious or Tortious Press Behavior

Among other factors, the motives and intentions of disorderly press conduct are also taken into account during the evaluations. For example, in Oak Creek v. King, the Wisconsin Supreme Court upheld a tortious conduct charge against a news reporter who ignored the “no trespassing” sign and jumped a security fence to photograph the wreckage of a plane despite being told by the police to leave. The court ruled that news gatherers have the right to gather the news, but they cannot go beyond the law. The fence-jumping reporter’s motive was to beat his competitors hence he was charged with trespassing.[59] The court several times referred to the motives which tell us that the motive behind a tortious activity is factored in when the court is reaching its decision.

Conclusion

On one hand, refusing the press some sort of extra protection and privilege to access and publish information that the general public cannot, may hinder the press’ ability and performance. As Justice White wrote in Branzburg that “without some protection for seeking out the news, freedom of the press could be eviscerated.”[60] On the other hand, it is a legal dilemma to provide the press with extra protection and privilege without sacrificing the public’s privacy, and the First Amendment rights of the general public. For instance, if the government allows some extra privileges to the press in terms of freedom of expression that are not given to the general public, this in itself could be considered as depriving the general public of their first amendment rights. This will also raise more questions such as who would qualify as the press, especially in the era of the internet, blogging, YouTube, and independent journalism.

Several legal scholars have offered a variety of solutions to resolve the tensions in the law revolving around press behavior and tortious newsgathering practices. Below is a brief discussion about the possible solutions:

No Drastic Change Needed

First Amendment scholar, Edwin C. Baker acknowledges that the biggest freedom is freedom FROM government censorship, and as long as that freedom is guaranteed “other concerns can take care of themselves.”[61] However, he still emphasizes that the court and the law should get it right by recognizing the independent significance of the Press Clause of the First Amendment which he believes demands privileges for the press.[62]

In contrast, according to Fargo and Alexander,[63] a small number of authors suggest that there is no or very little need for the law to change. Even though those authors do recognize that there are some problems created by cases like Cohen, but they believe that those problems are not enough to create a crisis that might demand changes in the law.[64]

Another solution, as it can be inferred from various court opinions mentioned here, could be that the press should recognize its boundaries and align its legal and ethical guidelines with the current laws and court precedents. But scholars contend that requiring “the media to solve a problem that the courts have created seems fundamentally unfair.”[65]

More Protection for the Press

Advocates for further press protection argue on the basis of the First Amendment Press Clause that the media as an independent “Fourth Estate” demands autonomy so it can watch on the three official branches of government. In addition, journalists and media defendants in the cases mentioned here, often argue that “they should be protected from criminal and civil punishments for libel and contempt by publication.”[66] Even the Branzburg court which ruled against the media defendant admitted that “without some protection for seeking out the news, freedom of the press could be eviscerated.”[67] Furthermore, without some protection especially in terms of confidential news sources, the press would be viewed as an “investigative arm of government”[68] as Justice Stewart argued.

In a 1992 article published in Stanford Law Review journal, Timothy B. Dyk gives several reasons as to why the media should be given some special privilege, rights, and access. Dyk argues that the press’s presence serves public interest that cannot be achieved by the general public’s presence. He argues that the press is a surrogate for the general public. And that, the public presence may create disruption and interference with official activities which can be avoided by allowing the press only, to serve as a surrogate for the public. [69] Similarly in the dissenting opinion in Pell v. Procunier[70] Justice Douglas argued that citizens in “a society which values a free press, rely upon the media for information.”[71] In addition, Justice Douglas eloquently argued that not giving special prison access to the media is a clear violation of the public’s right to know.[72]

Among other cases, Cohen is the most influential opinion that made media defendants vulnerable to newsgathering torts because it ignored the media’s First Amendment claims. Some scholars cited in Dyk (1992), advocating for broader press protection, argue that the courts should ignore Cohen and add the First Amendment issue back into the equation when evaluating tortious press behavior.[73] One proposal that seems to be potentially capable of solving the tension to a greater extent is that of Bunker et al. cited in Dyk (1992), who recommend a modified strict scrutiny examination. This means that the plaintiffs would have to show a “compelling harm” caused by the newsgathering practice itself, not by the publication.[74] Otherwise, the plaintiffs should not be able to succeed in newsgathering torts. However, this proposal seems to have fewer chances to be entertained because Cohen now has Food Lion, Desnick, and other similar opinions that converge together when surreptitious newsgathering practices are under question by the courts.

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Endnotes

[1] Amy Reynolds, Communication and Law, in The International Encyclopedia of Communication 705–715 (2008).

[2] Sandra Davidson, Journalism Legal Situation, in The International Encyclopedia of Communication 2585–2591 (2008).

[3] Reynolds, supra note 1.

[4] Jon Paul Dilts, The Press Clause and Press Behavior: Revisiting The Implications of Citizenship, 7 Commun. Law Policy 25–49 (2002), http://www.tandfonline.com/doi/abs/10.1207/S15326926CLP0701_02.

[5] C. Edwin Baker, The independent significance of the press clause under existing law, 35 Hofstra Law Rev. 955–975 (2007), https://scholarlycommons.law.hofstra.edu/hlr/vol35/iss3/4.

[6] Anthony L. Fargo & Laurence B. Alexander, Testing the Boundaries of the First Amendment Press Clause: A Proposal for Protecting the Media from Newsgathering Torts, 32 Havard J. Law Public Policy 1093–1154 (2009), https://heinonline-org.proxy.library.kent.edu/HOL/Page?handle=hein.journals/hjlpp32&div=56%0A.

[7] Dilts, supra note 4.

[8] Timothy B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 Stanford Law Rev. 927 (1992).

[9] Dilts, supra note 4.

[10] United States v. Matthews, 209 F.3d 338, (2000), https://advance-lexis-com.proxy.library.kent.edu/api/document?collection=cases&id=urn:contentItem:401R-10X0-0038-X497-00000-00&context=1516831.

[11] Michael Janofsky, Journalist Sentenced to 18 Months in Internet Pornography Case, New York Times, 1999, at 17, https://www.nytimes.com/1999/03/09/us/journalist-sentenced-to-18-months-in-internet-pornography-case.html.

[12] United States v. Matthews, 209 F.3d 338, supra note 10.

[13] Branzburg v. Hayes, 408 U.S. 665, (1972), https://advance-lexis-com.proxy.library.kent.edu/api/document?collection=cases&id=urn:contentItem:3S4X-D570-003B-S27P-00000-00&context=1516831.

[14] Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, (1998), https://advance-lexis-com.proxy.library.kent.edu/api/permalink/c9bb4e98-59e6-4468-80c0-4d29aa70c9ce/?context=1516831.

[15] Stahl v. State, 1983 OK CR 90, (1983), https://advance-lexis-com.proxy.library.kent.edu/api/permalink/12842608-64fe-4778-8534-87089b6461cf/?context=1516831.

[16] Lorain Journal Co. v. United States, 342 U.S. 143, (1951), https://advance-lexis-com.proxy.library.kent.edu/api/permalink/7bba7e32-6152-413f-9754-cd23da2ecdfe/?context=1516831.;Cantrell v. Forest City Pub. Co., 419 U.S. 245, (1974), https://advance-lexis-com.proxy.library.kent.edu/api/permalink/a218417b-8572-4278-8c96-2577a69e63bd/?context=1516831.

[17] Branzburg v. Hayes, 408 U.S. 665, supra note 13.

[18] 421.100. Newspaper, radio or television broadcasting station personnel need not disclose source of information., KRS § 421.100 ( Current through 2022 legislation effective as of April 12, 2022. ), https://advance-lexis-com.proxy.library.kent.edu/api/document?collection=statutes-legislation&id=urn:contentItem:5D87-S1G1-66PR-P03P-00000-00&context=1516831.

[19] Branzburg v. Hayes, 408 U.S. 665, supra note 13.

[20] Id.

[21] Dilts, supra note 4.

[22] Branzburg v. Hayes, 408 U.S. 665, supra note 13.

[23] Cohen v. Cowles Media Co., 501 U.S. 663, (1991), https://advance-lexis-com.proxy.library.kent.edu/api/permalink/aeed80d0-5794-4bbd-b977-bc2d4c2d8560/?context=1516831.

[24] Id.

[25] Id.

[26] Id.

[27] Fargo and Alexander, supra note 6.

[28] Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, (1999), https://advance-lexis-com.proxy.library.kent.edu/api/permalink/fec585a9-80f5-408b-81e6-426bb6ce2621/?context=1516831.

[29] New York Times Co. v. Sullivan, 376 U.S. 254, (1964), https://advance-lexis-com.proxy.library.kent.edu/api/permalink/e77a50cb-15a2-439d-9a88-135de155eb85/?context=1516831.

[30] Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, supra note 28.

[31] Id.

[32] Fargo and Alexander, supra note 6.

[33] Id.

[34] Dilts, supra note 4.

[35] Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, supra note 14.

[36] Id.

[37] Id.

[38] Dilts, supra note 4.

[39] Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d 1119, (1987), https://advance-lexis-com.proxy.library.kent.edu/api/permalink/e62474a4-acf7-4ced-a30b-83bfd424c3c8/?context=1516831.

[40] Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, supra note 14.

[41] New York Times Co. v. Sullivan, 376 U.S. 254, supra note 29.

[42] Branzburg v. Hayes, 408 U.S. 665, supra note 13.

[43] Cohen v. Cowles Media Co., 501 U.S. 663, supra note 23.

[44] Fargo and Alexander, supra note 6.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, supra note 14.

[50] Wolfson v. Lewis, 924 F. Supp. 1413 (E.D. Pa. 1996), https://law.justia.com/cases/federal/district-courts/FSupp/924/1413/1472117/.

[51] Id.

[52] Id.

[53] Howell v. New York Post Co., 81 N.Y.2d 115, (1993), https://advance-lexis-com.proxy.library.kent.edu/api/document?collection=cases&id=urn:contentItem:3S2R-7HT0-003V-B410-00000-00&context=1516831.

[54] Id.

[55] Baker, supra note 5.

[56] Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, (1977), https://advance-lexis-com.proxy.library.kent.edu/api/permalink/a9f1d48a-14a4-497c-8dc1-9124e9fef2a7/?context=1516831.

[57] New York Times Co. v. Sullivan, 376 U.S. 254, supra note 29.

[58] Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, (1985), https://supreme.justia.com/cases/federal/us/472/749/#tab-opinion-1956238.

[59] Oak Creek v. King, 148 Wis. 2d 532, (1989), https://advance-lexis-com.proxy.library.kent.edu/api/document?collection=cases&id=urn:contentItem:3S3J-VV90-003G-34DX-00000-00&context=1516831.

[60] Branzburg v. Hayes, 408 U.S. 665, supra note 13.

[61] Baker, supra note 5.

[62] Id.

[63] Fargo and Alexander, supra note 6.

[64] Id.

[65] Id.

[66] Id.

[67] Branzburg v. Hayes, 408 U.S. 665, supra note 13.

[68] Id.

[69] Dyk, supra note 8.

[70] Pell v. Procunier, 417 U.S. 817, (1974), https://advance-lexis-com.proxy.library.kent.edu/api/permalink/e98db328-e349-403c-9924-e1eac4967eac/?context=1516831.

[71] Id.

[72] Id.

[73] Dyk, supra note 8.

[74] Id.