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Thursday, January 19, 2006

The First Amendment, News Gathering, and UCLAProfs

There is a very interesting hypothetical case regarding freedom the press posed by Eugene Volokh on the Volokh Conspiracy blog today ( link here ). At that post you will find the detailed and interesting hypothetical regarding the statute California Education 66450, which leaves open those who impermissibly distribute UCal lectures. for profit. I have provided some lengthy comments on the Volokh blog comments line, but let me write out a summary (which is still lengthy) of what I have written.

[Update: I just want to clarify that it appears that the reason for Professor Volokh's presenting the hypothetical case was because of the web site's activities -- see Eugene Volokh's postings on the subject at this link and elsewhere on the VC blog.]
The hypothetical case Professor Volokh has presented is a difficult one, and poses a novel set of facts that would potentially call for new doctrine. The Supreme Court precedent that is most on point is Cohen v. Cowles Media Co , 501 US 663 (1991) [ see link here ] a case dealing with the legal question of whether the First Amendment prevents the recovery of damages from a newspaper that result from that newspaper’s breach of a promise of confidentiality to a source (under the state’s generally applicable promissory estoppel law).

There were two lines of precedents that the Court could choose from. The first line of precedents was the Smith v. Daily Mail and Florida Star line, which holds that "if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order" (Smith v. Daily Mail Publishing Co, 443 US 97, 103 [1979]) .

The second line of precedents includes Branzburg v. Hayes, 408 US 665 (1972) and Associated Press v. NLRB, 301 US 103 (1937); this line of decisions holds that, in the words of Justice White in the Cohen decision, “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.” Cohen at 669.

Justice White believed that the facts of the case before the Court led them to the second line of precedents – a generally applicable law that calls for civil damages. Notice that Justice White’s language includes the infinitive “to gather.” This decision clearly has at least some implications for the act of newsgathering.

Now: in terms of potential new doctrine:

It seems to that Justice White’s formulation in Cohen v. Cowles (i.e., incidental effects produced by generally applicable laws) could stand on its own, or be even more formalized into something akin to the O’Brien four-prong test that applies to symbolic speech. Such “intermediate scrutiny” as found in O’Brien however has notable opponents, including Justice Scalia in his Barnes v. Glen Theatre concurrence. Such fuzzy balancing tests raise fundamental questions about the nature of judicial review that are worthy to explore
If the Cohen v. Cowles decision does in fact apply (which I believe it does), the question is, was California Education Statute 66450 enforced in such a way as to produce “incidental effects on [the press’s] ability to gather and report the news”? Nunzio in his insightful post raises the point that the news reporters could simply interview students about what was said; therefore the statute holds up in this particular case.. But perhaps the editors believe they need concrete proof along the lines of an audiotape before they feel comfortable publishing the story. Would this in essence be putting the Supreme Court as final arbiter of what is sourced well enough to be published? Moreover, what if the editors published the story with their “paid researchers” as anonymous sources, and UC-Davis in their civil suit demands that The Davis Enterprise disclose the names of these anonymous sources? To what extent would the sources as agents of the newspaper be protected under the 1st Amendment if Florida Star were to be controlling? The recent dust-up over Judith Miller would seem to imply that UC-Davis might win out on a purely textual basis alone.

But then we get to what is the bane for some federal judges’ existence, and for other judges, the linchpin of their decision-making: legislative history and intent. What was the legislative history behind California Education Statute 66450? Some judges may dispose of the matter simply by looking at the legislative history and deciding that matters such as investigative reporting were not envisioned to be covered by the statute, even though it is written in a generally applicable way. The legislative history and intent is therefore an important variable to account for.

But the plain language of the statute combined with Justice White’s phraseology in Cohen v. Cowles would seem to lead to a ruling for UC-Davis, with California Education Statute 66450 being ruled constitutional in this hypothetical case.

In terms of potential new doctrine:

I suppose that Justice White’s holding in Cowles could be, in this hypothetical case, formalized as an O’Brien “intermediate scrutiny” test (cf. United States v. O'Brien , 391 U.S. 367 (1968) [ see link here see link here and Barnes v. Glen Theatre, 501 US 560 (see link here ). The O’Brien four part test is as follows:

1) if it is within the constitutional power of the government;
2) if it furthers an important or substantial governmental interest;
3) if the governmental interest is unrelated to the suppression of free expression; AND
4) if the incidental restriction on 1st Amendment freedoms is no greater than is essential to the furtherance of the governmental interest.

“Intermediate scrutiny” is a notably fuzzy balancing test that has some, including Justice Scalia on record in Barnes, as being opposed to. For example, with prong #2, the ways in which “important or substantial” is different from “compelling” are difficult to discern. Furthermore, and more importantly the O’Brien test applies to symbolic speech, and this is most certainly NOT symbolic speech. It would be hard to posit a rational basis test for this case though – there is no morals rationale as there was in Barnes (the nude dancing case), given the public interest involved in this hypothetical news story. But I’d say that something along the lines of an O’Brien test would work here, and is more or less what is in place with Justice White’s statement that “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.”

Therefore, this generally applicable California Education Statute, in my view, only appears to have incidental effects on the press’s ability to gather and report the news. Of course, it isn’t clear how courts are able to determine what is or is not an “incidental effect on [the press’s] ability to gather and report the news.” These kinds of balancing tests raise problems through the realm of judicial review, and thus make for very difficult cases.


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