Trash tort or trash TV?: Food Lion, Inc. V. ABC, Inc., and tort liability of the media for newsgathering

St. John's Law Review, Winter 1998 by Scheim, Charles C

In Branzburg u. Hayes,56 the Court did address the press' pre-publication conduct. The Court decided the issue of whether a reporter has a "newsman's privilege" not to reveal confidential sources, despite being subpoenaed to testify before a grand jury.57 The Court rejected the reporters' claim that forcing them to reveal confidential sources would cause future sources to refuse to furnish newsworthy information, "to the detriment of the free flow of information protected by the First Amendment."58 The Court did not find any evidence that "there would be a significant constriction of the flow of news to the public,"59 and held that because the First Amendment did not allow the press to have a "special immunity from the application of general laws,"60 the press was not exempt from being required to testify before a grand jury.61 The Court balanced "the public interest in possible future news about crime," with "the public interest in pursuing and prosecuting those crimes reported to the press by informants."62 Thus the Court held against the reporters only after the state had demonstrated that it had a compelling interest in obtaining their testimony in a grand jury hearing.63 However the Court did not address the press' newsgathering practices in general, beyond noting that the press is not immune from laws of general applicability.64 The case is ambiguous, perhaps purposely so, regarding the amount of protection, if any, that should be granted to the press for newsgathering conduct.65 Moreover, Branzburg addressed only the impact of governmental requirements on the press and not the impact of private parties through civil actions.66

The Court directly addressed the issue of private citizens' suits against the media in Cohen v. Cowles Media Co., 67 a case that is a bit of a twist on Branzburg. In Cohen, a confidential source of information sued the publisher of a newspaper for breach of contract and for misrepresentation for revealing his name, despite promising not to divulge it.68 The Court held that the First Amendment did not bar the plaintiff's promissory estoppel claim against the newspaper's publisher.69

Justice White, writing for the majority, emphasized that the Court's earlier decisions that granted constitutional protection to the press were limited to circumstances in which the press published "truthful, lawfully obtained information."70 Justice White explained, however, that the First Amendment does not confer a right of the press to disregard laws of "general applicability."71 Finding that promissory estoppel is such a law, Justice White upheld Cohen's claim.72 Echoing Branzburg, the Court held that "enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations."73 Moreover, the Court found that an award of compensatory damages did not have constitutional significance and thus declined to balance the interests of the plaintiff and the value of the information.74