Court overturns reporters' contempt charges, but rulings are nothing to cheer about
Commentary
By Douglas Lee
Special to freedomforum.org
07.20.00
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When an appellate court refuses to send a reporter to jail, hearty
cheers typically resound from First Amendment quarters. After a federal appeals
court recently overturned contempt orders against two North Carolina reporters,
however, the most that could be heard was polite applause.
The lack of excitement about these decisions can't be attributed to
disapproval of the reporters' behavior. The reporters, in fact, appear to have
gathered the news responsibly. Rather, the disappointment with the court's
rulings results from the fact that yet another court chose to define the
media's newsgathering rights in pencil rather than in fluorescent-yellow
marker.
Since the early 1970s, courts have tiptoed around the notion that the
First Amendment protects newsgathering. Although the U.S. Supreme Court in
Branzburg v. Hayes acknowledged that
"news gathering is not without its First Amendment protections," it so far has
declined to identify those protections. Lower courts, therefore, have eschewed
bright-line rules in newsgathering cases, preferring instead a
we-know-it-when-we-see-it approach reminiscent of obscenity cases.
In the North Carolina cases, the appellate court paid lip service to
the constitutional right to gather news but ultimately ducked the critical
issue. As a result, its decisions, while favorable for the individual
reporters, are unlikely to establish any meaningful precedent.
These cases stem from a confidential settlement reached in a lawsuit
in which trailer park residents alleged that Conoco and two subsidiaries had
contaminated underground wells in Wilmington, N.C. The parties settled the case
after a jury awarded compensatory damages but before it considered punitive
damages. At the parties' request "but without notice to the public or press"
the trial court sealed the settlement agreement and related documents.
In reporting on the settlement, Cory Reiss and Kirsten Mitchell,
reporters for Wilmington's Morning
Star, independently learned that the settlement included a $36
million payment. Using what the appellate court called "ordinary reporting
methods," Reiss learned of the amount through two confidential sources.
Mitchell, on the other hand, was inadvertently provided a copy of the
settlement agreement by a court clerk.
After the settlement amount was published in the
Morning Star, the court was asked to
find the reporters and the newspaper in both civil and criminal contempt. The
court ultimately found Reiss in civil contempt and Mitchell and the newspaper
in civil and criminal contempt. Reiss' interest in protecting his confidential
sources, the court said, could be overcome because the court was obligated to
discover who had breached the settlement agreement. Mitchell and the newspaper
were guilty of contempt, the court said, because Mitchell had inspected the
settlement agreement even though it was in an envelope designating it as
confidential and as having been filed under seal.
On appeal, a three-judge panel of the 4th U.S. Circuit Court of
Appeals reversed all of the trial court's contempt findings. In Reiss'case, the
court applied a three-part balancing test to determine whether "society's need
for the confidential information" outweighed "the intrusion on the reporter's
First Amendment interests." In this balancing, the court considered whether the
information was relevant, whether it could be obtained by other means and
whether the request for the information was justified by a compelling
interest.
Although Conoco did not claim to have a compelling interest in the
sources' identity, it convinced the trial judge that he had a compelling
interest in this information. This approach is somewhat suspect, as a trial
judge always will have an interest in learning who violated a court order. If
this interest is always deemed compelling, a reporter never could promise
confidentiality in a case involving information contained in sealed court
records, even if the source did not obtain the information from the court
records.
The appellate court, however, did not overturn the trial court's
contempt finding on these grounds. Rather, it vaguely held that, "[u]nder some
circumstances, enforcement of a validly entered confidentiality order might
well provide a compelling interest." The court failed to identify those
circumstances, however, choosing instead to limit its holding to the particular
facts of the case. And in this case, the court said, the trial judge's interest
could not be compelling because the sealing order — entered without
notice or hearing — was invalid.
The court also relied on the invalidity of the sealing order in
reversing the civil contempt findings against Mitchell and the newspaper. If
the order was invalid, the court correctly reasoned, an individual could not be
in contempt for violating it.
While reversing the findings of criminal contempt, the court rejected
the notion that Mitchell and the Morning
Star possessed a First Amendment newsgathering privilege any
greater than the public's right of access to court documents. The court
therefore did not consider Mitchell's status when it weighed whether she had
committed criminal contempt. This lack of consideration, however, is
shortsighted. Although the First Amendment does not entitle a reporter to
blanket immunity for violating court orders, the public's interest in a free
and vital press should be at least a factor in a contempt inquiry.
But in this case the court again limited itself to the facts before
it. Under those facts, which included a detailed description of how the
envelope containing the settlement agreement was labeled and sealed, the court
found that criminal contempt could not be proved. "No citizen is
responsible,"the court said, "for ensuring that the internal procedures
designed to protect the legitimate confidences of government are
respected."
Even though the court declined to embrace a First Amendment right to
gather news, it at least recognized that government is responsible for
safeguarding its own secrets. We might have a reason to cheer after all.
Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.
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