One of the most significant developments in recent years, in both constitutional and tort law, began with the holding in New York Times v. Sullivan that the first amendment places substantial restrictions on the common law tort action for defamation. Although the ramifications of New York Times are still developing,that continuing reform of the law of defamation will result is to be expected. The readjustment of the balancing of conflicting interests that New York Times represents came about at the behest of the press,and the press have been the primary beneficiaries of these developments. Indeed, some commentators contend that the major first amendment protections from an action for defamation that now exist apply only to the media, since the first amendment speaks expressly of the press. I find myself in disagreement. The first amendment speaks of both "freedom of speech and of the press." The constitutional protections should protect the ordinary citizens as well as the media, whether the suit is in slander for an oral statement or in libel for a written one. The privilege of fair report,for example, should apply on behalf of an individual who attends a public meeting and orally describes it accurately and fairly to a friend. This equality of protection will not harm the press,whose members have their protection, which is not endangered. For the press to seek to deny that protection to persons engaged in other types of activities is to take a dog-in-the-manger position. While the first amendment clearly affords certain protections to the media against tort liability arising from publication, the Supreme Court has not yet addressed directly the protection available to news gathering. The Court has stated that "news gathering is not without its First Amendment protections," but also has stated that "[t]he right to speak and publish does not carry with it the unrestrained right to gather information." Lower courts have indicated that a reporter who is engaged in news gathering is not immune from the tort liability or criminal responsibility to which an ordinary citizen would be subjected. Whether the tort liability of the reporter is exactly the same as the liability for an ordinary citizen who engages in the same conduct but without the motive of seeking to gather information to transmit to the public remains unanswered.
John W. Wade,
The Tort Liability of Investigative Reporters,
37 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol37/iss2/3