Two Wrongs Mock a Right: Overcoming the Cohen Maledicta that Bar First Amendment Protection for Newsgathering

In Cohen v. Cowles Media Co., Justice Byron R. White wrote that the First Amendment offers no protection from the enforcement of generally applicable laws against newsgatherers and that First Amendment protection applies only to information that has been lawfully acquired. This Article shows that these doctrines are not only false, but have already done serious damage to First Amendment interests. It surveys lower court decisions from around the country to demonstrate the doctrines\u27 pernicious influence, then it evaluates alternative solutions to the problem. The article concludes that the most effective, if least likely, solution would be a rule that tracks the New York Times Co. v. Sullivan actual malice standard, redefined as bad faith or outrageous behavior when applied to newsgathering torts. This article examines these doctrines with a view toward exposing their role in obstructing the natural evolution of a constitutional rule that ensures First Amendment values are taken into account when tort liability for reporters\u27 conduct in gathering news is alleged. Part II discusses what little the Supreme Court has already told us about First Amendment protection for newsgathering and places that in the context of other press clause jurisprudence, including New York Times Co. v. Sullivan and Hustler Magazine, Inc. v. Falwell. Part III examines the Cohen case in detail, dissecting and debunking the two major doctrines that now effectively deprive newsgathering of constitutional protection. Part IV reviews the damage those flawed doctrines have already done in trial and appellate courts around the country. And Part V discusses alternative approaches toward a new constitutional rule that might evolve, indeed that might have already evolved, in the absence of the Cohen maledicta. This article concludes that, although the First Amendment confers no immunity upon the press to violate laws of general applicability or to commit tortious or unlawful acts in pursuit of the news, neither do such violations relieve the courts of responsibility to consider the First Amendment values at stake, weigh them against the other societal values represented by the laws in question, and, where appropriate, adjust those laws to accommodate any higher values they may find