Abstract

http://ssrn.com/abstract=1370444
 


 



Two Wrongs Mock a Right: Overcoming the Cohen Maledicta that Bar First Amendment Protection for Newsgathering


Eric Easton


University of Baltimore - School of Law

1997

Ohio State Law Journal, Vol. 58, No. 4, 1997

Abstract:     
In Cohen v. Cowles Media Co., Justice Byron R. White wrote that the First Amendment offers no protection from the enforcement of "generally applicable laws" against newsgatherers and that First Amendment protection applies only to information that has been "lawfully acquired." This Article shows that these doctrines are not only false, but have already done serious damage to First Amendment interests. It surveys lower court decisions from around the country to demonstrate the doctrines' pernicious influence, then it evaluates alternative solutions to the problem. The article concludes that the most effective, if least likely, solution would be a rule that tracks the New York Times Co. v. Sullivan "actual malice" standard, redefined as "bad faith" or "outrageous behavior" when applied to newsgathering torts.

This article examines these doctrines with a view toward exposing their role in obstructing the natural evolution of a constitutional rule that ensures First Amendment values are taken into account when tort liability for reporters' conduct in gathering news is alleged. Part II discusses what little the Supreme Court has already told us about First Amendment protection for newsgathering and places that in the context of other press clause jurisprudence, including New York Times Co. v. Sullivan and Hustler Magazine, Inc. v. Falwell. Part III examines the Cohen case in detail, dissecting and debunking the two major doctrines that now effectively deprive newsgathering of constitutional protection. Part IV reviews the damage those flawed doctrines have already done in trial and appellate courts around the country. And Part V discusses alternative approaches toward a new constitutional rule that might evolve, indeed that might have already evolved, in the absence of the Cohen "maledicta."

This article concludes that, although the First Amendment confers no immunity upon the press to violate laws of general applicability or to commit tortious or unlawful acts in pursuit of the news, neither do such violations relieve the courts of responsibility to consider the First Amendment values at stake, weigh them against the other societal values represented by the laws in question, and, where appropriate, adjust those laws to accommodate any higher values they may find.

Number of Pages in PDF File: 83

Keywords: First Amendment, newsgathering, Cohen v. Cowles Media Co., reporters, tort liability, constitutional protection, New York Times Co. v. Sullivan, 'actual malice' standard

JEL Classification: K19, K39, K49, L82

Accepted Paper Series


Download This Paper

Date posted: April 7, 2009 ; Last revised: February 26, 2014

Suggested Citation

Easton, Eric, Two Wrongs Mock a Right: Overcoming the Cohen Maledicta that Bar First Amendment Protection for Newsgathering (1997). Ohio State Law Journal, Vol. 58, No. 4, 1997. Available at SSRN: http://ssrn.com/abstract=1370444

Contact Information

Eric Easton (Contact Author)
University of Baltimore - School of Law ( email )
1420 N. Charles Street
Baltimore, MD 21218
United States
Feedback to SSRN


Paper statistics
Abstract Views: 301
Downloads: 25

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.187 seconds