Applying a 'Persona Test' for Newsgatheirng Privilege to Food Lion v. Capital Cities/ABC

Abstract

A growing number of plaintiffs unhappy with news coverage of their activities have sued the media, alleging not garden-variety defamation restricted by application of the First Amendment, but non-speech torts, contractual wrongs and statutory violations committed during the newsgathering process prior to publication. Although the breadth of the First Amendment protection for the media from state and federal regulation of publication is clear, the Court has been far less precise in evaluating whether and to what extent the First Amendment protects acts committed during prepublication newsgathering from liability for torts other than defamation. The Comment urges that the level of constitutional protection for the act of newsgathering should turn on the defendant's "persona" at the time of the alleged tortious behavior. That is, if a defendant was acting in a press persona, using the challenged reporting techniques to uncover democratically relevant, otherwise unavailable information, the behavior is entitled to more First Amendment protection. If the defendant was acting in a corporate persona, using the challenged reporting techniques to uncover information or pictures or footage that is at the outer edge of citizen self-governance but is appealing to consumers and thus a contribution to advertising profit, it is entitled to less First Amendment protection.

Keywords: defamation, newsgathering torts, First Amendment