Extract taken from 'The Media and Entertainment Law Review - edition 1'

Free speech and media freedom

i Protected forms of expression

The First Amendment to the US Constitution provides strong (but not absolute) protection for all forms of speech. As a general matter, ‘government has no power to restrict expression because of its message, its ideas, its subject matter, or its content’. The few, limited categorical exceptions include obscenity, child pornography, defamation, fraud, incitement, true threats and speech integral to criminal conduct. The US Supreme Court has rejected recent legislative efforts to add violent video games, depictions of animal cruelty, lying about military honours and virtual child pornography to the list of unprotected categories.

False speech is protected unless it is made ‘for the purpose of material gain’ or causes ‘legally cognizable harm’. Hate speech is also protected, reflecting the ‘bedrock principle’ that the government ‘may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable’. The First Amendment affords ‘special protection’ to ‘even hurtful speech’ when it concerns a public issue to ‘ensure that we do not stifle public debate’.

In addition to rejecting new categories of unprotected speech, the US Supreme Court recently made it harder to restrict protected speech. While it has long been true that the First Amendment requires heightened scrutiny whenever the government creates regulation of speech ‘because of disagreement with the message it conveys’, the Court more recently held that any law that (either on its face or by design) targets protected speech based on its communicative content is subject to strict scrutiny review ‘regardless of the government’s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech’.

Commercial speech, which includes commercial advertising, promises and solicitations, is unprotected if false or misleading, and it is otherwise subject to regulation under an intermediate level of scrutiny. However, in Sorrell v. IMS Health Inc, the Court applied heightened scrutiny in striking down a Vermont law prohibiting the use of pharmacy records by pharmaceutical companies for marketing purposes on the ground that it unconstitutionally discriminated based on the content of the speech and the identity of the speaker, rejecting the state’s argument that such judicial scrutiny was not warranted because the law was ‘a mere commercial regulation’. Media and entertainment products are not ‘commercial speech’ merely because they are distributed or sold as part of for-profit enterprises.

ii Newsgathering

The enforcement of general laws against the press ‘is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations’. Generally applicable laws ‘do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news’. However, a publisher cannot be held liable for the unlawful procuring of information by a source where the publisher was not involved in the illegal conduct and accessed the information lawfully, and the publication is of public concern.

Undercover reporting techniques have been the subject of several lawsuits challenging the constitutionality of state ‘ag-gag’ laws that criminalise the infiltration of agricultural production facilities to document illegal, unsanitary and inhumane conditions. In ALDF v. Wasden, the Court struck down the provisions of an Idaho statute prohibiting making misrepresentations to access an agricultural production facility and unauthorised audio or video recording of the facility’s operations on the ground that both provisions were content-based restrictions of protected speech that were broader than necessary to protect the property owner’s interests.

In private tort actions, the legitimate newsgathering purpose of secret recording often outweighs the plaintiff’s asserted privacy interests. In Medical Laboratory Management Consultants v. American Broadcasting Companies, for example, the appellate court held that the secret taping of a conversation concerning the business operations of a medical laboratory did not implicate a reasonable expectation of privacy because the information was ‘at most, company confidential’ and did not involve ‘private and personal affairs’ of the lab owner. Any ‘offensiveness of the alleged intrusion’ was ‘mitigated by the public interest in the news gathered’. There are limits to this principle, however. Journalists have no ‘license to intrude in an objectively offensive manner into private places, conversations or matters merely because the reporter thinks he or she may thereby find something that will warrant publication or broadcast’.

iii Freedom of access to government information

Access to federal government information is governed by the Freedom of Information Act, which, inter alia, directs federal agencies to make records promptly available to any person upon request. The statute exempts from disclosure nine categories of documents, including classified information, trade secrets, privileged inter-agency or intra-agency memoranda or letters, and law enforcement records or information if disclosure could reasonably be expected to interfere with ongoing enforcement proceedings. States have their own freedom of information laws and processes for obtaining information about the workings of state government.

iv Protection of sources

Journalists do not have a First Amendment or common-law right to refuse to comply with a grand jury subpoena, even if doing so requires the disclosure of confidential sources. Courts relying on Branzburg have affirmed contempt orders against prominent journalists who refused to reveal their sources in criminal leak prosecutions.

Outside the grand jury context, the circuit courts vary in the extent to which they recognise a reporter’s privilege. The Second Circuit Court of Appeals, for example, has recognised a qualified privilege for both confidential and non-confidential information, and in both civil and criminal cases, but the Fourth Circuit strikes a different balance between newsgathering and law enforcement. It recognises a qualified privilege only in civil cases.

While there is no federal shield law providing statutory protection to confidential sources, most states have enacted shield laws. The New York Civil Rights Law, Section 79-h, for instance, provides absolute protection for confidential sources and qualified protection for non-confidential sources.

v Private action against publication

Publication-based causes of action available to private persons include defamation, invasion of privacy, and intentional infliction of emotional distress. And companies can sue media entities for defamation, trade libel, breach of a duty of confidentiality, disclosure of trade secrets and tortious interference. These torts, when based on claimed falsehoods, are limited by the First Amendment to the US Constitution, which, as judicially interpreted, imposes the requirement that public official or public figure plaintiffs prove that the statement was made with ‘actual malice’ (i.e., with knowledge of its falsity or reckless disregard for its truth). In private figure cases, states are free to require a lesser showing of fault ‘so long as they do not impose liability without fault’. To be actionable, a statement must be susceptible to being proved true or false, and when the statement is of public concern, the plaintiff bears the burden of proving falsity.

The US Supreme Court has declined to limit the foregoing First Amendment protections to the traditional, institutional media (the boundaries of which have, in any event, become blurred with the advent of the internet). They apply equally to individual speakers, including to bloggers.

The relief available in defamation actions is generally limited to compensatory damages. The US Supreme Court has never addressed the issue, but most courts ‘adhere to the traditional rule that defamation alone will not justify an injunction against future speech’.

vi Government action against publication

US courts are generally sceptical of government actions to punish the media based on the content of their publications. For example, when the White House has revoked the press passes of journalists based on allegedly disruptive behaviour, federal courts have enjoined those actions on due process grounds. In 2019, multiple courts held that the First Amendment was violated when individuals were blocked from accessing official government social media accounts, such as President Trump’s Twitter feed, in a viewpoint discriminatory manner.