West Law Report

Developments in the Law: the Law of Media

Posted in Harvard Law Review (Article), Law and information, Law of Media by mrkooenglish on June 11, 2008

An article in Harvard Law Review (Feb 2007) (.pdf) (78 pages):

Table of Contents

  1. I. Introduction: New Media, New Secrecy, New Questions
  2. II. Protecting the New Media: Application of the Journalist’s Privilege to Bloggers
  3. III. Prosecuting the Press: Criminal Liability for the Act of Publishing
  4. IV. Viewpoint Discrimination and Media Access to Government Officials
  5. V. Internet Jurisdiction: A Comparative Analysis
  6. VI. Media Liability for Reporting Suspects’Identities: A Comparative Analysis
  7. VII. Newsgathering in Light of HIPAA

In the article:

Part II explores whether blogs, an increasingly important source of news, will receive protections that have long been available to more traditional news sources. After describing the constitutional, common law, and statutory protections available to reporters generally, this Part asks which of these might most readily — and helpfully — be extended to blogs. After concluding that the common law reporter’s shield will almost certainly cover bloggers but may provide insufficient protection, this Part discusses a recent, groundbreaking case from California5 that extended a statutory reporter’s shield to bloggers despite the statute’s failure to mention blogs explicitly.6 This Part then examines whether this decision is likely the beginning of a trend, and evaluates the steps bloggers could take to increase the likelihood that they will receive such protection in the future.

Part III discusses whether, in light of several recent, high-profile news stories that revealed classified information7 and corresponding threats of retaliation from the Bush Administration and members of Congress,8 members of the press could be prosecuted for reporting classified national security information. After describing the history of government attempts to prevent the press from publishing classified information and outlining the general rules regarding when members of the press can be prosecuted for breaking the law, this Part asks whether a recent case, United States v. Rosen,9 sets a new precedent suggesting that the press can be successfully prosecuted for publishing classified information.

To analyze further the role of the media in an age of renewed government secrecy, Part IV explores the contours of the relationship between the First Amendment and media access to both government leaks and one-on-one interviews with government actors. Although the First Amendment provides no special right of the press to access government information,10 the government’s selective dissemination of information to only some members of the media based on reporters’ past speech may constitute impermissible viewpoint discrimination. This Part catalogues several recent decisions that appear to permit government actors to restrict press access based on reporters’ past speech. Analysis of the decisions indicates that although courts are willing to patrol for viewpoint discrimination when the government limits access to a press forum to which other journalists have access, they are less willing to do so when government actors limit access to interactive information-gathering opportunities, such as interviews. After considering the practical implications of these cases, this Part suggests that future courts more clearly distinguish between government action that pragmatically limits access based on time or space constraints and government action that denies certain reporters access based on their past speech. As new technology sends media content around the globe, comparison of international and domestic laws affecting the media has new importance. Parts V and VI explore two classes of recent developments in the United States and Commonwealth countries that affect the potential liability of media defendants.

Part V compares U.S. and Commonwealth doctrine on the exercise of personal jurisdiction over media defendants in defamation cases based on Internet content. U.S. courts have settled on a targeting test, which finds jurisdiction only when a media defendant intentionally directs content specifically at viewers in the forum state.11 In contrast, Commonwealth nations including the United Kingdom, Australia, and Canada have settled on a more lenient foreseeability test, which allows jurisdiction whenever it is foreseeable that content will be available and potentially cause harm.12 This Part argues that the differing jurisdictional tests stem in part from entrenched differences in the substantive laws of, and the value placed on speech in, the United States and Commonwealth nations. Viewing the procedural tests as outgrowths of substantive differences helps explain why arguments to change procedural tests in Internet cases have failed. Looking forward, this Part predicts that a treaty harmonizing the different jurisdictional approaches would be helpful but is unlikely, and that media defendants will therefore increasingly rely on technology to limit the dissemination of Internet content to avoid being subject to jurisdiction in foreign courts.

Part VI explores the legal implications in the United States and Commonwealth nations of media reports about suspects in criminal cases and investigations. Historically, laws that governed reporting about suspects tended to align with the divergent trends toward media protection in the United States and reputation protection in Commonwealth nations. However, this Part recounts recent developments that imply some convergence in the traditional doctrines. In the United States, a recent Fourth Circuit decision13 provided stronger protection to a suspect-plaintiff than traditional U.S. doctrine would have afforded when it evaluated the overall tone of a newspaper’s report to find the report capable of defamatory meaning. In the United Kingdom, recent defamation decisions provided new protection to the media by expanding the qualified privilege defense14 and directing lower courts to apply this privilege more consistently.15 Similarly, the recent passage of uniform defamation acts in Australia16 may foreshadow in- creased protection for the media in that country. However, despite these steps toward more plaintiff protection in the United States and more media protection abroad, this Part concludes that convergence of the laws governing reporting about suspects in these jurisdictions is unlikely due to deep differences in underlying defamation and criminal contempt laws.

Finally, Part VII examines the interaction between the Health Insurance Portability and Accountability Act17 (HIPAA), a federal law designed to protect the privacy of individuals’ health information, and state Freedom of Information (FOI) laws,18 which are designed to ensure public access to government documents. This Part describes three recent cases from different states that addressed difficult issues about where and how to draw the line between the public’s right to know and individuals’ rights to keep their medical information secret. This Part concludes that questions about the interaction of state FOI laws and HIPAA should be guided by the framework suggested in HIPAA regulations for understanding the interaction between HIPAA and the federal Freedom of Information Act.19 State courts and agencies should therefore use the provisions in state FOI laws that regard medical privacy to inform decisions about information requests from citizens and the media.

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