Reporter's privilege case to Supreme Court?

Editor & Publisher reports that Judith Miller and Matthew Cooper have reached a deal with federal prosecutors that will allow them to stay out of jail while they seek U.S. Supreme Court review in their reporter's privilege case. I don't think the case is different enough factually from Branzburg v. Hayes for the Supreme Court to do anything benefiting journalists. The best that could be hoped for here might be for the Supreme Court to simply deny the writ of certiorari and not take the case at all.

Students vs. Supreme Court

Although the Utah Supreme Court did not identify a broadcast journalist who is the plaintiff in a libel lawsuit as a public figure (see my previous posts on Wayment v. Clear Channel here and here) 30 of 49 students in my recently completed Communications 300 (Media Law, Ethics and Responsibility class) nevertheless did correctly identify a broadcast journalist as a public figure.

On this month's final exam in Comms. 300, the students were given the following facts, loosely based on WFAA-TV v. McLemore, 978 S.W.2d 568 (Tex. 1998):

On February 28, 1993, federal agents approached a compound near Waco, Texas, occupied by members of a small religious sect known as Branch Davidians. A local television reporter, KWTX-TV’s John McLemore, learned that a major law enforcement operation would take place there and hurried to the scene. When the federal agents attempted to enter one of the buildings on the compound, they became involved in a gunfight with the Davidians. During the battle, four federal agents and three Davidians were killed. McLemore reported live from the midst of the firefight.

Two days after the firefight, media reports began to focus on why the federal raid had failed and what sparked the gunfight. Another television station, WFAA-TV, broadcast a picture of McLemore and reported that federal agents blamed McLemore for the raid’s failure because, the agents reportedly said, McLemore’s presence at the compound before the raid tipped off the Branch Davidians to the presence of federal agents. The truth is that McLemore was not present at the compound until after the raid began, and the Davidians were tipped off through another source.

McLemore, a 20-year veteran at KWTX-TV who is well known throughout the Waco community, brought an action against WFAA-TV for defamation. Will his civil action succeed? What arguments will WFAA-TV make in defending its broadcast?

As I said, 61 percent of the undergraduate communications students correctly identified McLemore as a public figure. Although the Utah Supreme Court cited the McLemore case, it nevertheless held that a Salt Lake City broadcast journalist who considered herself a local celebrity and became involved in various civic organizations was not a public figure.

Randy Dryer, attorney for Clear Channel, comments on the implications of the Utah Supreme Court decision here and here.

Broadcast Education Association

Last week I enjoyed presenting a paper titled "Medium-Based Regulation: A Proposal for Constitutional Standards" to the Law and Policy Division of the Broadcast Education Association. Las Vegas is not my favorite city, but I enjoyed the nice people at BEA. My paper was awarded first place in the debut category and I was honored to receive the 2005 David Eshelman Award for "outstanding contribution to legal research."

While in Sin City, I also got to catch up with an old friend who now works at the Las Vegas Review-Journal. Earlier that day he had been covering a story about two girls who got stuck on a roller coaster atop the Stratosphere due to high winds.

Reporters going to jail?

The U.S. Court of Appeals for the D.C. Circuit today denied two reporters' petitions for en banc rehearing. That means Judith Miller and Matthew Cooper could be headed to jail for failing to respond to grand jury subpoenas. The New York Times provides early coverage here.

More on Wayment v. Clear Channel

I have some questions about the correctness of the Utah Supreme Court's opinion in Wayment v. Clear Channel Broadcasting, which was published Friday.

First, a brief summary of the facts: Holly Wayment worked as a health reporter for KTVX Channel 4, a Salt Lake City broadcast news operation, from April 12, 1999 to May 14, 2002. She was involved in approximately 1,000 broadcast news stories, including 60 that mentioned the Huntsman Cancer Institute or its employees.

After reporting a story of a 4-year-old with cancer, Wayment developed a relationship with the girl and her family. She began to take the girl to the ballet, theater, dinner and movies in connection with the girl's weekly visits to Salt Lake City for cancer treatments. Wayment spoke at the girl's funeral and vowed to develop a "buddy system" in which local residents would develop relationship with cancer-stricken children. She had mentioned the idea to Dr. Joseph Yost, director of the Center for Children at the Huntsman Cancer Institute. Dr. Yost liked the idea and pledged Huntsman resources in support of it.

When Wayment's superiors at KTVX heard of the idea, they became concerned that she was using her position as a reporter for personal gain. She was asked to resign, which she did. After she left the station, she heard that KTVX executives had made comments to the effect that she, in the words of the Supreme Court opinion, "had received money from Huntsman and was using her reporter status in an attempt to 'create a foundation.'"

She filed a defamation lawsuit. Clear Channel Communications, which owns KTVX and is represented by Randy Dryer and Sean Reyes of Parsons Behle & Latimer, moved for summary judgment, arguing that Wayment was a public figure and that her defamation claims failed because she failed to show that KTVX executives acted with actual malice.

Last week, the Utah Supreme Court held that Wayment was not a public figure and did not need to establish actual malice. This was despite evidence that Wayment considered herself a "local celebrity" and in contrast with numerous cases from other states in which broadcast reporters have been categorized as public figures.

The result of this decision is that it is easier for media companies in Utah to be sued for defamation by their former journalist employees.

The Supreme Court did throw a bone to KTVX and its media lawyers in holding that statements by one of the KTVX executive constituted inadmissible hearsay. The executive did not make the comments to Wayment; her evidence of the statements is third- and fourth-hand. With respect to one other executive, though, the court held that the statements are not hearsay and are thus actionable.

I have some serious doubts that what the executive said (that Wayment "abused her contacts as a reporter to start this foundation and she was in charge of a large sum of money and it's unethical") contain defamatory content or meaning but the court was probably right in concluding that summary judgment is not appropriate at this point.

I can't predict the outcome, but I will be interested to see if KTVX opts to settle the case now that its motion for summary judgment has not succeeded.

Reporter not public figure

The Utah Supreme Court held yesterday that a former Salt Lake City broadcast news reporter is not a public figure for the purpose of her defamation claim against her former employer, KTVX (ABC, ch. 4). After Holly Wayment left the TV station in 2002, her former boss allegedly told people that she had been terminated because she was using her status as a reporter, including receiving money from news sources, to "start a foundation."

The Utah Supreme Court affirmed summary judgment in favor of the station's news director but reversed summary judgment with respect to the assistant news director. So Wayment's defamation claim against the assistant news director (and the station) can go forward.

I will perhaps comment more on this opinion later, once I have had a chance to digest it more fully. Right now, though, I have to go administer a final exam in a Media Law, Ethics and Responsibility course.

Griffith gets OK

BYU general counsel Tom Griffith apparently will become a judge on the U.S. Court of Appeals for the D.C. Circuit after all. Last fall, it looked like Griffith's nomination was doomed when his failure to pay bar dues in Washington, D.C., and his lack of a law license in Utah became big issues before the Senate Judiciary Committee. But President Bush re-nominated Griffith in the new congressional session, and today, the Senate Judiciary Committee voted 14-4 to approve the nomination. Given that he got four Democrats' votes in committee, Griffith appears virtually ensured of full Senate confirmation.

Congressional testimony on marriage

BYU law professor Lynn Wardle testified before Congress that the courts will likely declare 49 state marriage laws unconstitutional in that they prohibit marriages between same-sex couples. The story in The Salt Lake Tribune also contains an off-the-wall quote by a Notre Dame law professor about Mormons and polygamy.

Tomorrow is the day

Apparently, the Senate Judiciary Committee will vote tomorrow on Tom Griffith's nomination as a judge on the U.S. Court of Appeals for the D.C. Circuit.

No navel-gazing here

In light of one writer's complaints about bloggers who blog even when they have nothing to say, I have taken some time off. I promise not to blog until I have something interesting to blog about.

Stop bothering us!

The Utah Supreme Court has again admonished a man the court recently sent to jail to stop pestering the justices. The Deseret Morning News reported today that the 55-year-old Salt Lake man sent another letter to the justices the day he was released from jail from having sent too many letters to the justices.