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From the hotline

From the Summer 2002 issue of The News Media & The Law, page 24.

From the Summer 2002 issue of The News Media & The Law, page 24.

The Reporters Committee operates a toll-free hotline (800-336-4243) for journalists with questions about free press and freedom of information issues. In this column, attorneys who answer our phones, as well as media lawyers from around the country, answer questions we get from journalists.

Q: How difficult is it for a public official or public figure to overcome the “actual malice” standard and win a libel lawsuit against the media?

A: Public officials — such as elected politicians, high-ranking government personnel and sometimes police officers — must meet a higher burden of proof when they sue the media. Unlike a private person, who would have to show only that the media defendant was negligent, a public official must prove that the media defendant acted with actual malice, meaning that the defendant knew what it published or broadcast was false or acted with reckless disregard for the truth.

The same standard applies to public figures, such as celebrities and others with power in a community.

Most public officials and public figures who sue the media cannot meet the actual malice standard. More often than not, the lawsuit will not survive summary judgment, a proceeding in which a media defendant asks the trial judge to dismiss the case.

However, public officials and public figures sometimes can overcome the actual malice standard. A Georgia jury on June 21 awarded $225,000 in compensatory and punitive damages to a public official who sued the Lake Park Post, its editor and a columnist for libel, according to the Fulton County Daily Report. (Farmer v. Lake Park Post)

Stories in the Post had called Lowndes County Deputy Kevin Farmer a “murderer” for the death of a man Farmer had arrested. A coroner’s inquest ruled the death accidental, and Farmer was not charged with a crime. The newspaper refused to retract statements accusing Farmer of murder, according to the Daily Report.

The Lake Park Post case holds a lesson that most journalists learned in Journalism 101: Don’t accuse someone of a crime when that person has not been charged with one.

Q: At a recent hostage standoff in my town, police moved all of the journalists at the scene to a “holding area” with a limited view — even though the general public was allowed to remain closer to the scene. Is this fair?

A: Generally, the press is allowed to be anywhere the public is. However, courts, including the U.S. Supreme Court, have refused to recognize a special interest or privilege for the press to have additional access to disaster or emergency scenes, such as hostage situations.

That said, it is unusual, and perhaps illegal, for the press to be held farther back from where the public can stand. If asked to uphold such a restraint, a key issue that courts would have to examine is whether or not the police have a reasonable expectation that the press would interfere with their work or investigation, moreso than the general public would.

If the police have a reasonable belief that the press could interfere with an emergency scene, the police may have a strong case for holding the press back farther from where the public is. However, these instances are usually extreme and quite rare. It is difficult to imagine a scenario that a court could validly uphold, since the press should not be held back any farther than the extent necessary to avoid interference, which would make a barrier farther behind one restraining the public rather curious.

In the absence of any compelling reason that would interfere with an investigation or negotiation, the police should not be able to prevent the media from having access to anything the public would.

Q: Now that four reporters have been convicted of contempt for speaking to jurors in a criminal case after the judge ordered the media not to contact them (see cover story), am I still able to interview jurors?

A: Generally, there is no blanket restriction that prohibits reporters from contacting and interviewing jurors. As a journalist, you have a First Amendment right to gather news while the public has a similar interest in receiving information about the judicial process. Post-verdict juror interviews are permitted once you receive the juror’s consent, but jurors are not required to cooperate with the media.

However, in many states a criminal trial judge has discretionary power to issue an order that governs the media’s contact with jurors. In order to withstand constitutional scrutiny, some courts have held that a judge’s order must be narrowly tailored to prevent “a substantial threat to the administration of justice.” Other courts have required proof of a “clear and present danger or serious and imminent threat to a protected competing interest” in reviewing the validity of an order. The court must find a compelling government interest in restricting access to jurors and it must consider reasonable, less restrictive alternatives before completely denying access to jurors. A judge has much greater discretionary power to issue an order that prevents jurors from talking to the media as compared to his power to restrict the press from contacting jurors.

Judges give various reasons for restricting access to jurors such as concerns that the integrity of the jury process may be impaired, that a defendant’s right to a fair trial could be prejudiced, and that jurors will be harassed by the media and will be less likely to serve on future juries as a result of their experience. Courts are most likely to uphold a judge’s order that prohibits discussion of jury deliberations or restricts repeated requests for interviews after a juror expresses his desire not to be interviewed.

It is also important to remember that a court can only bind those members of the media who are within its jurisdictional control. For example, a court order could only bind those members of the media who participated in a pretrial conference or intervened before the court. Thus, an order that would bind all media from contacting jurors should not be valid from a jurisdictional perspective. However, some courts have ignored this question of jurisdiction and allowed such a broad order to stand. And reporters should not ignore court orders over disputes about jurisdiction; these must be settled in court.

Juror interviews are only restricted in cases where there is a valid court order in effect that limits access to jurors. Aside from those circumstances, you are free to interview a juror as long as he has consented to the interview.

Q: I want to search court records by an attorney name or judge’s name. Do I have the right to do this?

A: The U.S. Supreme Court has held that there is a common law right of access to court records, and many other courts have held that there is a First Amendment right of access to court records, but they have always ruled in cases where a citizen was seeking a specific record or set of records in a specific case. There is no case that specifically grants citizens the right to run computer searches for court records. Nevertheless, some jurisdictions do permit electronic searches, if they have the technology available. The ability to do that kind of search depends on whether the jurisdiction you are in has the technology available for public use. There is no declared across-the-board right to search a court’s computer files.

Q: Are e-mail records of public officials open to the public?

A: Many states have statutorily or judicially decided that electronic mail constitutes a public record that is subject to a state’s open records laws. These states include Arizona, Arkansas, Connecticut, Florida, Georgia, Illinois, Kentucky, Maryland, Oregon and Virginia. E-mail is also a public record in the District of Columbia.

Colorado and Hawaii are likely to treat electronic mail as a public record, but the law allows that determination to be made on a case-by-case basis. Utah and West Virginia law gives the agency the power to distinguish between mail that is personal in nature and mail that relates to the agency’s business. The custodian of the records in those states has the discretion to deny Freedom of Information requests for e-mail records after he has determined that the mail is personal.

The remaining states have not addressed this issue. Although some follow in the footsteps of the federal Freedom of Information Act, which does consider e-mail records to be covered by the FOI Act, it is unclear which of those states would determine the records were open. To find out how e-mail records are treated in a particular state, check Tapping Officials Secrets, a compendium of state open government laws published by the Reporters Committee, at https://www.rcfp.org/tapping.