Amicus brief in Colorado v. Lewis
Arguing that applying a vague commercial bribery statute to journalists engaged in newsgathering is unconstitutional.
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SUPREME COURT, STATE OF COLORADO Case No. ______________
ORIGINAL PROCEEDING FROM AN ORDER District Court Case No. 99CR3053
In re: PEOPLE OF THE STATE OF COLORADO, v. CRAIG A. LEWIS. AMICI CURIAE BRIEF IN SUPPORT OF PETITION FOR RELIEF IN THE NATURE OF PROHIBITION OR MANDAMUS AND FOR ISSUANCE OF A RULE TO SHOW CAUSE PURSUANT TO C.A.R. 21
Counsel for Amici Curiae: Amici Curiae The Reporters Committee for Freedom of the Press, the Society of Professional Journalists, and the California Newspaper Publishers Association, submit this brief in support of the petition filed herein by Craig A. Lewis for relief in the nature of prohibition or mandamus and for issuance of a rule to show cause pursuant to C.A.R. 21. The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. Since its founding in 1970, the Reporters Committee has provided representation, information, legal guidance, and research in press freedoms cases, including cases involving the First Amendment rights of reporters and editors to gather and disseminate the news. The Society of Professional Journalists is a voluntary, non-profit journalism organization representing every branch and rank of print and broadcast journalism. SPJ is the largest membership organization for journalists in the world, and for more than 90 years, SPJ has been dedicated to encouraging a climate in which journalism can be practiced freely, fully, and in the public interest. The California Newspaper Publishers Association is a trade association representing about 500 daily and weekly newspapers in California. CNPA has, for over 110 years, worked to preserve and enhance the rights of a free press, including the right of journalists to gather news by agreeing to preserve the confidentiality of a news source and to refuse to divulge confidential sources and unpublished information. This case involves the criminal prosecution of a reporter covering the JonBenet Ramsey murder investigation. It concerns not the underlying charge of murder but the prosecution of a reporter for attempting to obtain information. The prosecution involves an issue critical to the media specifically and the public in general: whether a statute banning the offer of any benefit as consideration for another's breach of "a duty of fidelity" is so overbroad as to violate the First Amendment right to gather and disseminate the news. Under the statute, all journalists working in Colorado are presented with a dilemma: they must either curtail their generally accepted newsgathering techniques or continue to practice routine newsgathering techniques and subject themselves to criminal prosecutions. Should the statute be allowed to stand, all members of the worldwide press who gather and report news in Colorado will be affected by its scope. Therefore, this Court's immediate consideration of the constitutionality of this statute is necessary in order to determine whether newsgathering in Colorado will be chilled. I. COLORADO'S COMMERCIAL BRIBERY STATUTE VIOLATES THE UNITED STATES CONSTITUTION.The Colorado commercial bribery statute states in relevant part that a person commits a felony "if he confers or offers or agrees to confer any benefit the acceptance of which" would be "consideration for [the offerree] knowingly violating or agreeing to violate a duty of fidelity to which he is subject as: (a) Agent or employee; or . . . (c) Lawyer, physician, accountant, appraiser, or other professional advisor; . . ." . Colo. Rev. Stat. 18-5-401(a), (c) (2000). The statute is constitutionally infirm because it is overbroad. In People v. Hickman, this Court described the manner in which it must evaluate a claim that a statute violates constitutional rights because of its breadth: Summarizing the relevant caselaw, we conclude that overbreadth analysis involves two questions. First, the court must determine if the statute at issue encompasses constitutionally protected communications. Second, if the statute extends to protected communications, the court must determine whether the statute extends to a substantial amount of protected communication such that the statute is unconstitutional, or whether unconstitutional applications of the statute should be cured on a case-by-case basis. People v. Hickman, 988 P.2d 628, 636 (Colo. 1999). The United States Supreme Court has recognized that the First Amendment's protection of a free press carries with it protection for newsgathering, noting that "without some protection for seeking out the news, freedom of the press could be eviscerated." Branzburg v. Hayes, 408 U.S. 665, 681 (1972). Newsgathering is essential to preserving a free press and the free flow of information because "freedom of the press can be no broader than the freedom of reporters to investigate and report the news." 28 C.F.R. 50.10 (1998) (Attorney General's Policy with regard to the issuance of subpoenas to or filing of criminal charges against members of the news media). No statute exists outside the parameters of the Constitution. See Marcus v. Search Warrant, 367 U.S. 717, 731 (1961) (holding that no state is "free to adopt whatever procedures it pleases for dealing with obscenity . . . without regard to the possible consequences for constitutionally protected speech"). As the United States Supreme Court has held, application of statutory provisions to newsgathering can unconstitutionally burden the right of journalists to gather the news: A legislature appropriately inquires into and may declare the reasons impelling legislative action but the judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution. Were it otherwise, the scope of freedom of speech and of the press would be subject to legislative definition and the function of the First Amendment as a check on legislative power would be nullified. Landmark Comm. Inc. v. Virginia, 435 U.S. 829, 844 (1978). Here, the Colorado commercial bribery statute impairs the ability of reporters to gather and disseminate the news. Journalists often find it necessary to enter into mutually beneficial arrangements with people from whom they seek information. Two examples illustrate the exchange of benefits involved in gathering the news that fall under the ambit of the statute. First, journalists often acquire information from interview subjects who are under a duty not to divulge information in exchange for promising that subject that his or her name will be kept confidential. This method of gathering the news for dissemination to the public has long been hailed by First Amendment scholars: Indispensable information comes in confidence from officeholders fearful of superiors, from businessmen fearful of competitors, from informers operating at the edge of the law who are in danger of reprisal from criminal associates, from people afraid of the law and of government -- sometimes rightly afraid, but as often from an exercise of caution -- and from [people] in all fields anxious not to incur censure for unorthodox or unpopular views. . . . Forcing reporters to divulge such confidences would dam the flow to the press, and through it to the people, of the most valuable sort of information: not the press release, not the handout, but the firsthand story based on the talk of a primary news source. Alexander Bickel, The Morality of Consent at 84 (1975). Major international, national and local news stories would not have been brought to the public's attention had journalists not been able to promise sources that their identities would not be revealed. Journalists that cannot use this newsgathering tool cannot truly fulfill the duties of a free press. Second, journalists often promise interview subjects who are under a duty not to divulge information that they will disseminate the information provided in an interview in exchange for the information itself. Even though no promise of confidentiality is given as consideration for the receipt of information, an exchange of benefits allows a "whistleblower" to tell a story -- on the record -- in exchange for assurances that the information provided will be disseminated by the journalist. Under the Colorado commercial bribery statute, such an agreement between journalist and source could lead to criminal sanctions. The statute on its face provides reporters gathering the news with no clear understanding of what type of arrangements with news sources constitute criminal activity. The reporter who promises to keep a source's identity secret, promises to publicize newsworthy information, or even pays the lunch tab while talking to a potential source runs the risk of criminal prosecution. This threat to constitutionally protected newsgathering goes to the heart of the reason overbroad statutes cannot be squared with the First Amendment: A law that regulates one type of unsavory activity -- public or professional corruption -- cannot be used to justify infringements on free speech and a free press. The laudable goal of enforcing corporate and professional integrity against corruption cannot justify the heavy burden that the law's enforcement places on newsgathering. B. The Statute Substantially Impairs The Constitutional Rights Of All Journalists. As organizations that work with journalists from all over the country on a daily basis, amici curiae can attest to the prevalence of newsgathering techniques such as promising anonymity to a source or promising to disseminate information in exchange for its receipt. Should Colorado claim the right to prosecute journalists for using such routine methods of gathering and disseminating the news, it will have curtailed both First Amendment freedoms relied upon by a substantial percentage of journalists working in Colorado and the right of the public to receive newsworthy information. "[T]he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve." See Mills v. Alabama, 384 U.S. 214, 219 (1966). In determining whether a "substantial amount" of protected activity is affected, it is essential that the analysis focus on how substantially protected speech is impaired. In other words, while journalists may constitute a small portion of all those who may offer something of value for information, the law's impact on those journalists is nevertheless substantial. Under the current statutory regime, newsgathering techniques must be re-examined every day by the reporter who wishes to avoid criminal prosecution. In addition, reporters are potentially much more likely to be targeted under this law than non-journalists. Corporate espionage and corrupt business dealings -- presumably the intended target of the statute -- will often go undetected, but a journalist seeking information from a whistleblower intends to publicize the information obtained, often in a way that will draw complaints from the subject of the published report. Corporations and government agencies exposed for committing illegal or unethical acts in this manner have every incentive to counter bad publicity by "shooting the messenger" -- i.e., criticizing the way the information was obtained. Thus, the violations that most often come to prosecutors' attention will be those that have generated the most publicity and controversy -- the whistleblower cases that bring illegal or harmful activity to light. II. THE PROSECUTION OF THIS CASE CAUSES AN IMMEDIATE VIOLATION OF THE UNITED STATES CONSTITUTION AND MUST BE ADDRESSED EXPEDITIOUSLY. The damage to First Amendment freedoms emanating from this prosecution arises not only from its eventual outcome (which may well be acquittal) but from its very pendency as well. As long as the indictment of Craig A. Lewis stands and his prosecution continues, all journalists working in Colorado must concern themselves with whether district attorneys will decide to prosecute them for engaging in constitutionally protected activities. The case against Lewis has achieved great notoriety among the public generally and among journalists specifically. The publicity generated by this single prosecution virtually obligates reporters working in Colorado to watch it closely and re-calibrate their traditional newsgathering techniques lest they be prosecuted for a violation of Colorado criminal law. "The threat of sanctions may deter [the] exercise [of protected liberties] almost as potently as the actual application of sanctions." NAACP v. Button, 371 U.S. 415, 433 (1962); cf. New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) (noting that rules can have deterrent effect on truthful speech by imposing "doubt [about] whether it can be proved in court or fear of the expense of having to do so," forcing critics "to make only statements which 'steer far wider of the unlawful zone.'" (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)). This escalated concern, combined with the uncertainty concerning what type of activity violates the statute, means that journalists have every incentive to engage in self-censorship simply to avoid the threat of prosecution. The statute may serve important interests in general, but it cannot stand when it diminishes the rights of a free press in the process. And when that harm occurs because of the prosecution of one reporter, it is not sufficient to counter that the First Amendment rights at stake can be vindicated after a lengthy trial. See Dombrowski v. Pfister, 380 U.S. 479, 489 (1965) (stating that "the chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure"). The threat of prosecution felt by all reporters becomes all too real when a prosecutor pursues one journalist. The homicide case underlying this prosecution is a matter of great public controversy that has included extensive scrutiny by the press of the conduct of public officials, including police and prosecutors. It is not without significance, at least from the perspective of journalists reporting on this important story, that the statute has been first invoked against a reporter in such a controversial case. This point is made not to suggest wrongdoing by public officials but to stress that reporters with sufficient intelligence and skepticism will have every incentive to tread all too carefully -- in ways that result in self-censorship -- while covering controversial matters in the future. CONCLUSION The outcome of this challenge to the constitutionality of Colorado's commercial bribery statute will affect the vitality of the press within the state's borders. The impact of the prosecution of Craig A. Lewis on reporters is real and immediate. Reasonable journalists will fear that aggressively pursuing a high-profile, controversial story could easily lead to criminal prosecution. Therefore, amici curiae urge this Court to grant the pending petition and hold that the Colorado commercial bribery statute violates the First Amendment to the U.S. Constitution.
Dated: June 19, 2000 Respectfully submitted,
Marc D. Flink (Bar No. 12793) Rebecca C. Lovell (Bar No. 23293) Baker & Hostetler LLP 303 East 17th Avenue, Suite 1100 Denver, Colorado 80203 (303) 861-0600 Counsel for Amici Curiae Of Counsel:
Lucy A. Dalglish, Esq.
Bruce W. Sanford, Esq.
Thomas W. Newton, Esq. |