Introduction by Professor Byron Scott, Missouri School of Journalism

Byron Scott: It's not unusual that there are more students here to hear Sandy Davidson talk than there were to hear our distinguished panelists this morning. A lecture by Sandy Davidson is both information and entertainment. Sandy joined the faculty in the fall of 1989, which was the same semester that I became chair of the editorial department of the School of Journalism, a post that I've since happily been able to wiggle out of. I quickly found that Sandy was, right from the beginning, one of the most effective lecturers not only in the School of Journalism, but within the University. She's a lawyer who neither speaks nor writes like a lawyer, for those of us who have just been wading through the Starr Report. She's a philosopher who neither speaks nor writes like a philosopher. She is a well-published academician who still knows the value and impact of a direct sentence. Sandy Davidson was the driving force, intellectual force that several years ago caused our faculty to agree that communications law should be a required course for all of our journalism students.

Students who come out her class never complain about anything except writer's cramp. Her lectures are known to be witty, direct, forceful, and packed with information. She's had too many honors and duties for me to tell you all about them here. But I would like to point out only three. One is that she is the consulting attorney for the Columbia Missourian, and therefore is our principle barrier between the kinds of mistakes that learning journalists make and the kinds of consequences that society expects from us.

Sandy has been recognized by the University community in several ways, and I'll just mention two of them. She was named outstanding junior faculty member several years ago. And just a couple of years ago I was pleased to follow the provost and a host of camera people into her lecture in a large auditorium in the journalism school, where she was identified as one of the Kemper professors, one of the outstanding teachers in the School of Journalism and in the University of Missouri. I think you'll enjoy hearing from her. She's just the kind of speaker you want right after lunch when your stomach is fighting with your brain for red blood cells. And I know that she'll also present some very challenging questions to you. Professor Sandra Davidson.

Sandra Davidson: Unfortunately, my stomach is also competing with my brain for blood cells, but I wanted to think a little bit about the Supreme Court and what's been going on. What's been going on in court cases of interest, I hope, to you. I want to start with a 1974 Supreme Court case, Miami Herald vs. Tornillo. It was a unanimous decision. And here's, in part, what the Supreme Court had to say. "A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated." Is the Court saying we have a Constitutional right to be irresponsible? I hope not. I would like to say that I think the Court is wrong. Could the Court be wrong? Let's pause and think about that for just a second. Does anybody recognize the picture of this woman? William Jefferson Clinton petitioned the Supreme Court of the United States, asking it to overturn the Eighth Circuit decision that the Paula Jones civil case could go ahead while he was still in office. He argued that it would simply take up too much of his precious time. And here's what the Court unanimously said.

"The Court rejects petitioner's contention that this case as well as the potential additional litigation that an affirmance of the Eighth Circuit's judgment might spawn, may place unacceptable burdens on the President that will hamper the performance of his official duties." No, letting the Paula Jones case go forward will not hamper him. Oh, my.

The Court got into error because it was trying to read a crystal ball on what would happen in the future in this case. I think the Court fell in an error in the Miami Herald case when it said that press responsibility is not mandated by the Constitution and like many virtues it can't be legislated, because the Court was trying to divide law, set it over here from ethics, set it over there. Here is my first premise, and that's that with every right comes relative obligations. You have a right; you also have obligations. Rights and responsibilities are pretty much the two sides of the same coin. To whom does a journalist have obligations? Well, I want to say to the public and every individual who comprises that public.

Second premise, the court system is imposing virtue on journalists. What do I mean? I mean that areas that we used to consider virtue, areas that weren't judicially enforceable are now being enforced. Or in other words, life is becoming more hazardous for journalists because law is making greater demands on them. And I want to give just a few examples.

We're just going to run down quickly through some horror stories, if you want. First area of the law I'm going to mention is negligence law. Negligence law. What is negligence? You have a duty, if there is a foreseeable risk of harm, not to continue that activity that will cause that harm. If you do, if you continue to harm, it's negligent. The first big negligence case in this country, as a matter of fact, started right down here on Broadway. Sandra Hyde had just gotten out of one of the bars. She was walking down Broadway, when a red-headed man, red beard, red mustache, driving a red Mustang, pulled alongside of her, pulled out a sawed-off shotgun, and said "Get in the car". He took off, he rounded a corner, she jumped out, she ran, he grabbed her dress, she kept running. She got back to the bar. She was safe. The redheaded assailant did not know who she was or where she lived until he read it the next day in the Tribune. An enterprising reporter had gone down to the police station and asked for a copy of the police report that Sandra Hyde had filled out. The paper published her name and address and guess what happened? Yeah, she was stalked. According to Sandra Hyde, she saw him that very night outside her house. He put the shotgun on top of the car and he started in calling her, saying pleasant little things like, "I'm glad you're not dead yet. I have plans for you before you die." He even showed up at her workplace. He was out in the parking lot, somebody told her. Kind of like a Friday the 13th movie. You know how it is? There's something scary going on down in the basement and people always go down to the basement. I don't understand why. She went out to the parking lot. There he was. She survived this thing, but she sued. And the courts in Missouri said she had a right to sue. Negligence, a foreseeable risk of harm. By the way, the Missourian also published the name and addresses - this before I was a lawyer for the Missourian - but we published it after the stalking had started, so that was one of the few cases where it really did pay to be late. Yeah.

California followed the Sandra Hyde precedent. 1998. A woman came back to her apartment and found the dead, nude, raped, beaten body of her roommate and an assailant. Now the assailant knew that she had access to the apartment but he did not know what her name was until he read it in the L.A. Times. An enterprising intern had gotten the information from a coroner's report. Public record. Police report, public report, coroner's report, it does not protect journalists anymore if there is a foreseeable risk of harm in the information. By the way, the United States Supreme Court let the Sandra Hyde case stand.

I'm going to mention another case that the United States Supreme Court let stand. And for you who are in advertising, of course, that's an important part of our business, Braun vs. Soldier of Fortune. Everybody, I trust, knows what Soldier of Fortune magazine is. It's one that I get at the Boonville Bait Shop because nobody knows me there. It's for research purposes that I do read this. Well, here was the ad: "Gun for hire, 37-year-old professional mercenary desires job. Vietnam veteran, discreet" - misspelled - "and very private. Bodyguard, courier, and other special skills, all jobs considered." Michael Savage is the name of the guy who put the ad in the magazine.

On a hot August night in Atlanta, Richard Braun was backing down his driveway when three thugs jumped out of the bushes and started pumping bullets into Richard Braun. He died, his son didn't. The two sons sued for negligence, foreseeable risk of harm. They won $4,375,000. Soldier of Fortune magazine said, "We can't pay the bill. Do you want the magazine?" The boy said no. They settled out of court for a lesser amount. Negligence law, something we have to worry about.

I'm going to give a broadcasting case that is now playing out. The Rhode Island Supreme Court decided that this case could go forward. It's the case of Clift vs. Narragansett. A man had mental problems clearly. Barricaded himself in his house, shooting outside the windows. Police were trying to talk him down, he was saying he was going to commit suicide. A call comes in and an enterprising reporting was calling from her station, Channel 12, she interviewed him, 6:00 o'clock news. She said, "It's obvious we're dealing with a very troubled man right now." And she goes on to say, "He's on the verge of suicide. It's an interview you'll see only on Channel 12." Six-oh-four, the interview aired. It gave this man the opportunity to say his last good-byes. At six-oh-seven a shot rang out. He had killed himself. Every TV station was tuned to Channel 12 [to see] what was going on in the house. Yes, that's negligence, the Supreme Court of Rhode Island was saying. That will be going to suit.

Well, the Supreme Court of the United States has been trying, I think, to impose virtue on reporters by allowing negligence suits. By saying in 1991 in the Cohen vs. Cowles Media Company case, that reporters cannot burn their sources. They have the duty to keep their promises made. [In] 1991, the Supreme Court also told journalists, in effect, that they needed to be accurate with their quotes. The Ninth Circuit had said, "Well, it's all right for reporters to do rational interpretations of ambiguous statements and just put quotation marks around them." The Supreme Court said no. One of the phrases in question here was intellectual gigolo. Well, did the speaker say it or not? The Court, the Supreme Court said this, "Were we to assess quotations under a rational interpretation standard, we would give journalists the freedom to place statements in their subjects' mouths without fear of liability. By eliminating any method of distinguishing between the statement of the subject and the interpretation of the author, we would diminish to a great degree the trustworthiness of the printed word and eliminate the real meaning of quotations." I think the Supreme Court was trying to protect the sanctity of quote marks. We have so much going on and you heard a lot of it from [Representative] Symington. The Barnicle mess, he made up, apparently, a couple of cancer patients, young cancer patients, [and] got fired. CNN, "Operation Tailwind," oh my, Dateline, General Motors, the pick up truck that blew up because NBC helped it to blow up. We've had so many, many instances.

Janet Cooke, mentioned by [Representative] Symington. Anybody know who this is? Richard Jewell, the poster boy, I think, for unfairness in the media. Oh, my. And it continues. Sometimes we can be unfair by trying to be nice. She had seven children and crooked teeth and Newsweek decided to straighten her teeth. Should it have done so? Probably not. Well, clearly we're not supposed to break any laws, but Mike Gallagher, September 25, 1998, he pled guilty to felony charges that he had tapped into the electronic communications system of Chiquita Banana. I didn't bring my Carmen Miranda hat. Fired, of course.

Well, we have a duty to be fair. We have a duty to be accurate. Maybe first we should say that we have a duty to do no harm. If we harm, of course, we will have to pay the piper. Libel remains our greatest danger. I'll only mention one case, the record breaking 1997 Wall Street Journal sentence, if you want. The Wall Street Journal had written a story about Bond Daddies, the defunct brokerage firm sued. Can you imagine being in the courtroom when the jury brings back a verdict of $222.7 million dollars? The courts lowered it to $22.7 million dollars but, my, that's a lot.

Privacy? Privacy used to be no problem. Here was the rule of the game. I think it was somewhat interesting. Journalists could do a story if it was newsworthy. It was newsworthy if journalists decided to do it, so they were on a roll with the circular reasoning. The party for journalists in the privacy area ended in 1985; that's a watershed. Courts started breaking through this barrier of newsworthiness. I want to mention a couple of cases. By the way, Missouri has been an interesting state in this area. We've had some interesting cases.

I'm going to mention one that came down in 1990, Y.G. vs. Jewish Hospital. Here's what happened. A woman was pregnant, five months, with triplets, and that's very pregnant. She was pregnant because of in vitro fertilization. Jewish Hospital had a very successful in vitro fertilization program and decided to throw a party to celebrate it. Invited this woman, she came. She did not know that TV reporters had also been invited. KSPK was there. Several times the reporters asked her if they could interview her. She said no. But that night for three seconds there she was on TV, this unmistakable profile for people who knew her. Her name wasn't used but people knew. And now she started getting calls. She was a member of a fundamentalist religious group that thought that all pregnancy should be the result of God only, thank you. So now if it's not bad enough to be five months pregnant with triplets, she's getting harassing phone calls.

Here's what the Missouri Court said about privacy. Yes, it is highly newsworthy that Jewish Hospital has this successful in vitro fertilization program, but it is not newsworthy that this one woman got pregnant that way. So splitting the newsworthiness as an issue from the newsworthiness of the individual.

Closely related. Closely related is outrage. And I'm going to mention an outrage case next because it happened in 1991 right after our own Jewish Hospital case. A six-year-old girl, Regina May Armstrong, disappeared. This was in Oviedo, Florida, which is close to Orlando. Couple of years later while excavating, a man found the remains of a little, tattered sundress - that's what Regina had been wearing - and a skull. He called the police. Took the police awhile but they finally put it together. Yes, that was the body, the remains, of Regina May Armstrong. On the day that Regina's memorial service was held, a reporter from Channel 2, Orlando, went down to the Oviedo police station and asked to see the skull. Police officer, very obliging, picked up a shoebox that had the skull. And he took it out. And she said, "Would you mind doing that again?" So she did. He picked up the skull, tilted it, and she got a zoom-in, frontal close-up. She called back to her news office, "Guess what I've got?" The anchorperson was not amused, did not want to go with that. The news producer said, "No, I don't think so." But the news director, Steve Ramsey, who I call Mr. Sensitivity, had this to say. And pardon the language but just think about how this would play to a jury. He had not seen the video tape but he said, "F--- it. We'll run it."

So that night, 6:00 o'clock, the family of Regina May Armstrong gathers around the television. They see pictures of Regina in life. They see pictures of the memorial service. They see bones of a critter that had been mistakenly identified as Regina May and then it ends with a close up of the tilted skull. The family had had no warning. Regina May's 12-year-old sister went flying out of the room screaming, "That can't be my sister." And that family sued and Florida said they had the right to. The tort is outrage. If a journalist goes beyond the bound of decency that a civilized society can tolerate, that is outrage. And the court said, "If this isn't a case of outrage, then there is no such thing."

June 1998. We just got down a decision from the Supreme Court of California, we've got a helicopter case. A woman and her son were in a terrible car wreck, ended up in a ditch. There was a reporter along in the helicopter that came to evacuate these people. He was doing a very important series on emergency help on the road. Of course, that's of public interest. He had every right to take pictures, take video of what anybody could see out there on the road standing in, standing in, that's what the Supreme Court said, Supreme Court of California. But when the reporter with the video camera got in the helicopter with that woman, the reporter had gone too far. That's what the Supreme Court of California has just ruled. There is an expectation of privacy once those helicopter doors slam or in a hospital room. So privacy. Some call it the tort of the 90s for journalists. Clearly we have to respect privacy. It's no longer just a matter of virtue. It's a matter that courts are going to look at carefully. They will impose liability.

Is there anyone in here who hasn't heard of the Food Lion case? I think Food Lion is interesting because it shows how innovative, in part, lawyers are becoming. There are a lot of lawyers out there. And they're coming up with all sorts of theories for holding journalists responsible that we would not have thought of too long ago. Fraud, trespass, and breach of the duty of loyalty, $5.5 million dollar lawsuit, a verdict. How many of you saw the Food Lion broadcast? Did anyone become vegetarian as a result of seeing how it was done with a meat and deli product?

Well, here's the way the judge in the case summed up the fact. By the way, the amount was lowered to $315,000 but the point still remained. Here Judge Carleton Tilley, Jr. said this, "In attempt to gain access to parts of Food Lion stores not generally open to the public, Dale and Barnett, the reporters, applied for positions of employment with Food Lion. Both provided false information to Food Lion in order to obtain a position." Dale indicated that she had prior experience as a meat wrapper, something you always learn in journalism school, right? She provided false references, a false employment background, and a false address. In short, she lied. Barnett also provided false references, a false employment history, a false address, and a false phone number. Each omitted any reference to her employer, ABC, and her true reason for seeking employment. Okay, they were employed as deli clerk and as a meat wrapper.

The judge said, "During the brief period of their employment, each wore a hidden camera secreted in a wig into work areas and recorded video footage." So fraud for the lying, trespass. And breach of the duty of loyalty, the duty of loyalty to the employer, which was Food Lion. Was this the first big hit? Oh, no. I've had people ask me, "Was this the first big hit for videotape recording?" No, we can go all the way back to 1971, Diederman (sp?) vs. Time.

That's a good old doctor-plumber case. A plumber was practicing medicine, obviously without a license. A reporter who was working with the state Department of Health and with the LA prosecuting attorney's office, went to Diederman's home, the plumber's home. She told them that a friend of a friend of hers had mentioned him as a good source of medical care. She told him she had a lump in her breast. He told her it was the result of her eating rancid butter 11 years before. Life magazine did an article "Crackdown on Quackery," try to say that three times fast. It showed, for instance, pictures of a little girl who had gone to him. She had cancer of the eye. Shall we say the result was disastrous? The doctor-plumber, of course, was found criminally liable. He was practicing medicine without a license, but here's what happened to the journalist. They invaded privacy. That's what the courts found. A $1,000 judgment isn't very much, but basically here is what the judge said, "Privacy, the sanctity of the home or the private office must be respected." And the judge really had a few choice words for people who said, "Well, we have to have hidden cameras." Remember it's 1971. Here's what the judge said, "Hidden mechanical contrivances are indispensable tools of news gathering? No. Investigative reporting is an ancient art," he said, "practiced long before the advent of miniature cameras and electronic devices." In other words, this kind of news gathering was not acceptable.

Well, from privacy we move onto one other area I want to mention. Well, a couple of other areas. Time is getting short. Wrongful death. Wrongful death as an action against journalists. This case is now going forward. It's the case of Frank Kersis, K-E-R-S-I-S. Here's what happened. Prime Time Live was doing a little series, "Hello, Tele-psychics," about the psychic marketing group. So a reporter with a videotape was inside where these 900 calls were coming in to this psychic hotline and the videotape was going and these two psychics were talking, in effect, about how they didn't really believe in what they were doing. But they didn't know they were being videotaped, which makes me wonder, "If they were really psychic, why didn't they know?" Well, they did know when they saw themselves on TV. A jury brought back a $1.2 million dollar verdict which the California Supreme Court later overturned, saying there was not a reasonable expectation of privacy in the workplace. But Frank Kersis died. He died a week after the verdict came in. He was an alcoholic and apparently he was distressed, or this is the allegation, by what happened to him, that he fell off the wagon and eventually died. So wrongful death, an ongoing suit.

And perhaps the most interesting ongoing suit in terms of legal theories, aiding and abetting. Hit Man, a technical manual for independent contractors. Ten bucks, you can get this work written by Rex Farrell that gives you the 27 steps to committing the perfect murder. Well, one man used it to kill another man's wife and quadriplegic son and the son's nurse. Question: should the producers of this book, Paladin Press, be held responsible? Well, we have a situation here. Canada has banned two of Paladin's books, Kill Without Joy and How to Kill, Volume 1. Other books by Paladin Press include Counterfeit ID Made Easy, Be Your Own Undertaker, and How to Dispose of a Dead Body. You get the picture.

In pretrial discovery here was a concession made by Paladin Press. "Defendants concede for purposes of this motion and for no other purposes, that in publishing, marketing, advertising and distributing Hit Man, defendant intended and had knowledge that their publications would be used upon receipt by criminals and would-be criminals to plan and execute the crime of murder for hire in the manner set forth in the publication." Well, a lot of journalists are now coming to the aid of Paladin Press, saying that we must not say that was a case of aiding and abetting. And there is a point to be made. If you have a really good novel, it could give you the same kind of information. When Mark David Chapman murdered John Lennon, he clutched a copy of Catcher in the Rye by J.D. Salinger. Would we want to eliminate those kinds of books? Oliver Stone won a suit, Natural Born Killers. Oh, my, there have been so many copycat murders going on. But sometimes it distresses me the way journalists do jump on the First Amendment bandwagon.

Here is the last case that I'm going to mention. The one that really distresses me because of the journalism bandwagon. The Khawar case, K-H-A-W-A-R, Khawar. A $1,175, 000-dollar judgment against The Globe, and it is on appeal. What we had was this: the front page, "Iranian Secret Police Killed Bobby Kennedy." Oh, my. A story about a book written about Robert Mull. But it also included a picture of Khawar who just happened to be near Bobby Kennedy at one point in time on the night that he was assassinated and there was an arrow pointing down to Khawar. The Globe added the arrow. Was this libelous?

Well, right now we have so many different journalism groups that are joining in. Of course, the ACLU, the Chronicle Publishing Company, the Daily Journal Corporation, Lesher Communications, the Recorder, San Francisco Bay Guardian, the San Jose Mercury. We have so many different news sources, both TV and print, siding with Khawar, I wonder. It concerns me. I guess perhaps one of my worst concerns, the concerns that really sometimes even keep me up at night is the tabloidization of major news sources. Time, why they ran the same picture that The Star was running; the Newsweek publication that actually tried to make itself kind of look like it had a starr, it's spelled with two r's; isn't that clever?

Well, we know what keeps on playing and playing and playing. Monica and Bill, Time using the Vanity Fair picture. Monica, Monica, Monica. Of course, for a long time it was the O.J. story. O.J. and more O.J. and all three networks using the Bronco chase. It was too slow to be a chase, Bronco parade. Time with the darkened pictures of O.J., not very good as far as I was concerned. Well, why am I concerned? I'm concerned because one of the major functions of editors is to choose content. Miami Herald case that we started with in 1974, talking about press responsibility, it said that the function of editors was to choose the content.

I would like to say that our content choice has had some problems. The Toronto Star, and I hope I don't sound too preachy. The Toronto Star said that in Iraq, according to UNICEF, more than 4,500 children under the age of 5 die each month. Before 1991 and our economic policies toward Iraq it was 700. So about 3,800 - do the math - extra children dying every month.

The Monica Lewinsky story, I just plugged Monica Lewinsky in last night to Lexis-Nexis, appeared 67,823 times. I didn't plug in just Monica. I think she's kind of like Cher and Madonna, you don't have to just use her last name anymore. Sixty-seven-thousand-two-hundred-and eighty-three times. Then I plugged in Iraq and children and starvation or starve, got 564 stories having been written since January 1, 1998. I think as journalism educators we not only have to teach students how to write well, but we have to teach them what needs to be covered. Journalists owe their readers and themselves good stories. No matter how well written, how well produced, if the content isn't good, it's bad journalism.

While journalists fret about Monica and cigars, children in Iraq continue to die. I'm sorry to end on a down note, but that really is truly one of my major concerns. We need balance in the choice of stories. Well, time is getting short. Do I have time for a question or two? Did I depress people so much that they're not asking question? Any questions?

Questioner #1: Well, I'll ask a question and encourage others to get up. You've outlined lower court cases for the most part in which courts have found responsibility or implied responsibility in the First Amendment.

Davidson: Several of them were Supreme Court cases.

Questioner #1: Okay. Is there any case in which the court or an opinion tries to outline or define what it considers the obligation of the First Amendment or is it just sort of done piece by piece, case by case?

Davidson: I think we can get kind of a composite where we see that the court will impose liability. But I think one thing that has hampered the court, if you want, or kind of chilled the court, is the fact that we don't license journalists. The Supreme Court does not want to be put in the position of defining who is a journalist. 1972, Bransburg vs. Hayes, we have a shield right, a right not to testify in front of grand juries? Well, the Supreme Court was really back-pedaling from this whole question of who is a journalist. And if you can't even say who they are, maybe it's a little difficult to say what their rights are. But clearly with the cases that we've seen coming down, and lot of them either going to the Supreme Court or the Supreme Court letting them stand, again, a composite picture is emerging. Basically, we do have to tell the truth. We can't burn our sources. Negligence law is going to apply to us like everyone else. Then you get the more nebulous torts, outrage and now maybe, maybe aiding and abetting. We'll have to see how that comes out.

Questioner #2 (John Merrill): No, this is I think a typical right-brained analysis of freedom. It's kind of a feminist perspective which, of course, some males would agree with you, I'm sure. It seems to me that you talked about the growing importance of lawyers and I certainly can see this and I'm sure everybody else can, too, kind of taking over journalism in a way. Taking the decision-making out of the hands of the editors and putting it into the hands of the law.

Davidson: Yes.

Merrill: And, of course, you seem to think this is a good thing. I personally don't think it's a good thing. I believe in responsibility and responsible journalism, but I believe that this is what journalists ought to do themselves -

Davidson: Yes.

Merrill: -- and we should through our educational system try to enhance this. It's hard to say that I believe that freedom of the press includes the freedom to be irresponsible, but I do say that. I do believe that, and I'm not, I'm not alone in saying that. I think that when they are irresponsible then they're going to have to pay some kind of penalty, the consequences are not going to be good. And, of course, that will scare a lot of people from doing things that they might do otherwise. But all the cases that you gave were post-publication consequences -

Davidson: Yes.

Merrill: -- none of it really keeps them from doing it. So they have the freedom to do it.

Davidson: But they do have to pay the consequences - and maybe that story goes out to other journalists.

Merrill: We've always had that libel restriction.

Davidson: Right.

Merrill: Now you've added privacy and some other things, too, onto it. And I don't think most journalists would, would disagree with that or be against that. I'm certainly not. I do think we ought to have to assume responsibility for our actions, but I still believe that if we're not careful, in the name of responsibility we're going to lose our freedom of the press.

Davidson: Yes.

Merrill: And we'd better, we've got to be very careful about that.

Davidson: Yeah. I'll just make one short comment. Ideally, the press would police itself. Now in the wake of the Hutchins Commission Report over 50 years ago, we did have some attempts at self-policing. We have had some codes for journalistic conduct. [The Society of Prefessional Journalists] has a code. But often journalists have been afraid of codes and they've been afraid of codes, I think, because of the lawyers. They're afraid that if they get sued, that this code will be used as a standard of conduct and make it easier for the journalist to go down in the courtroom. So now we're back to lawyers. And by the way, this isn't the first time I've been called a feminist. I wear the title. Yes.

Questioner #3: I have a question for you. The Food Lion case was very disturbing to me because I think it was the public saying that no longer should journalists break the law for the greater good. And I want to know what you teach your students about that. About breaking the law for a higher goal or a greater good, because I know as a journalist I have done it and I would be willing to do it again.

Davidson: Yes. Well, I do mention that there are circumstances under which, for instance, I think a moral person could say, "I am going to break the law that says that I cannot release information to persons unauthorized to get it," - part of the Espionage Act of 1917 still stands, $10,000 dollars, ten years. Why? Because I think the American people need this information. That is acting with integrity. I do not think the law and ethics are necessarily together as one. And sometimes I think ethical duty would impel a good journalist to break the law. But I do think those times are few and far between.

Question #4: Some of these cases that you've cited are almost unbelievable. Are we not listening here to a case of the newspapers having very poor lawyers and just losing these cases?

Davidson: Well, I think we are in part having to face the fact that the judicial system lags behind public sentiment. But I think that if the public is concerned enough about an area of the law, for instance, if the public is concerned enough about privacy, and I think the public is, then the courts are eventually going to take notice of it. I think there have been some horrendous examples of journalism. For instance, Arthur Ashe, very much loved. And a USA Today reporter said, "I know you have AIDS, we're going to go with the story". The story broke, then there so many stories on, should journalists have done this to Arthur Ashe? Privacy. And now, of course, in privacy issues with Monica Lewinsky and all, I think there's a heightened sensitivity. There have been too many horrendous cases and now journalists are really bearing the price, have a historical swell, if you want.

Questioner #4: But these, these negligence cases that you've cited seemed in a direct confrontation with the, with the First Amendment. And I just, I'm amazed by them. I was not aware of them and I'm amazed that they got through any court.

Davidson: Yes. I've got a longer article if you'd like to have a copy. Blood money is what I call it. Yeah.

Questioner #5 (Brandt Ayers): Justice Hugo Black, a fierce advocate of the First Amendment, was also a fierce opponent of judge-made law. And one of the things that really used to irritate him was the rule of reasonableness.

Davidson: Whose reason?

Ayers: And he would say, "What in the hell is that?" That when the Constitution says, "The Court may make no law," I understand that. The rule of reasonableness is vapor. This standard of violating the sensibilities of -

Davidson: Um-hmm, outrage?

Ayers: -- of some nameless, faceless congress of nerve endings. Is there a really clear standard growing in case law that says, "This degree of actual offense, this damage done to persons is the standard," or are we flying absolutely blind? And only the conscience of the judge being offended is then the new standard against which we have to perform?

Davidson: That's a good point and this tort of outrage is quite nebulous. Yes. It certainly is. What would outrage a civilized community? What is a civilized community? But I think the judges would say it's enough to put journalists on notice, kind of like obscenity standards.

Ayers: He said, "Is that really their Constitutional function?

Davidson: Is that their Constitutional function? I think some judges would say it's their duty --

Ayers: Their civic duty -

Davidson: -- to preside over law - yes. And I think that the point being that these cases are coming down, they are coming down. And journalists ignore them and the journalists' peril. Now I should hope that fairness, accuracy, a little bit of the golden rule would apply to journalists. Yes. It's, it is a tough world out there and becoming increasingly tougher for journalists I think to avoid liability. Well, thank you very much for your attention. I appreciate it.