Recent High-Profile Cases Highlight the Need for Greater Procedural Protections for Freedom of the Press
33:2 Comm. L. 7 -14 (Am. Bar. Ass'n, Fall 2017)
14 Pages Posted: 12 Nov 2017
Date Written: November 7, 2017
Two recent high-profile First Amendment cases, Terry Bollea (a/k/a Hulk Hogan) v. Gawker Media and Beef Products, Inc. v. American Broadcasting Companies, Inc. (a/k/a the “Pink Slime” case) demonstrate the need for greater procedural protection for media defendants in civil litigation arising from their newsgathering and publishing activities. To provide the “breathing space” for the freedom of speech the Constitution demands, there must be an opportunity for interlocutory appeal of dispositive motions premised on First Amendment defenses. To subject members of the press to the devastating costs of discovery and trial as the prerequisite for obtaining independent appellate review is to effectively deny that remedy altogether. This article discusses four alternative approaches to establish such a procedural mechanism. The author also calls upon those in the legal academy to prepare more detailed and scholarly articles urging the judiciary to recognize this constitutionally-mandated remedy.
Keywords: First Amendment, Civil Procedure, Media Law
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