UNIVERSITY of NOTRE DAME


The Supreme Court’s Restrictive First Amendment Protection for Newsgathering: Keeping Media and Others from “Play[ing] Tyrant to the People
David Elder
Introduction
This article examines the boundaryless media and others’ claim of the people’s “right to know” based on a self-serving, self-justifying, unfettered right to gather information by any-and-all means available—criminal, tortious, or other wrongful acts—so long as the resulting end is newsworthy. This purported newsworthiness defense is largely undefined, perhaps undefinable, or almost inevitably the media’s self-defined construct. If the media decide something is worth publishing to satisfy reader and viewer interests, however sensational or voyeuristic in nature, it is per se newsworthy, and how it is acquired is irrelevant. As the analysis below evidences, such attempts to “bootstrap” unlawfully obtained information into protected status is not and has never been the law under the Court’s limited First Amendment protection for newsgathering. The Court should not revisit and reconsider its traditional posture in the digital era, where everyone with a cell phone becomes a “citizen-journalist”-hunter-gatherer-potential-Internet-disseminator. Yet, the Court should review one of the recurring aggressive attempts by media, First Amendment lawyers, and many scholars to circumvent its traditional jurisprudence through attacks on reasoned and reasonable legislative attempts to limit wrongful newsgathering conduct. The Court should emulate its digital-era Fourth Amendment decisions and provide protection for privacy and private property in dramatic black-letter fashion.

- Emerging Technology
Article by Michelle M. Cresswell
Notre Dame Journal on Emerging Technologies ©2019