Testing the Boundaries of the First Amendment Press Clause: A Proposal for Protecting the Media from Newsgathering Torts‪.‬

The use of undercover techniques and deception to gather news, which became a hot topic for journalists and media attorneys after the highly publicized Food Lion incident in the 1990s, (1) recently resurfaced as a controversial issue as a result of NBC's To Catch a Predator series on the Dateline news magazine show. (2) The series, in which NBC worked with police agencies and an Internet watchdog group called Perverted Justice (3) to lure men who allegedly wanted to have sex with minors they met online to decoy houses to be humiliated on TV and then arrested, has apparently lost its luster. (4) In 2008, NBC Universal the network's parent company, settled a lawsuit filed by the family of a prosecutor who committed suicide in Texas when police and a Dateline crew surrounded his home after he failed to show up at a decoy house. (5) In refusing to dismiss some of the claims against NBC, the judge in the lawsuit became one of the latest individuals to suggest that NBC had violated journalistic ethics and common decency to boost ratings. (6) The Predator controversy both illuminates and obscures legal issues about surreptitious reporting. Moreover, Food Lion and similar cases have raised more questions than they have answered about the legal boundaries for newsgathering behavior. These questions include: To what extent, if any, are journalists protected from tort actions when they engage in fraud or other questionable behavior to research a story? To what extent does the public interest served by a story mitigate tort liability? Is there a way to protect newsgathering methods that are fraudulent, deceptive, or intrusive if they serve the public interest but not if they are used for arguably less honorable ends?