The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From yesterday's Arizona Court of Appeals decision in Rodriguez v. Fox News Network:
An armed carjacking suspect led police on a high-speed chase that ended abruptly when he got out of the vehicle, put a handgun to his head and shot himself. After Fox News Networks, LLC, broadcast the chase and the suicide live, the two teenage sons of the suspect learned their father had killed himself when they saw a clip of the broadcast on the Internet a few hours later. Their mother sued Fox on their behalf, alleging negligent and intentional infliction of emotional distress. . . . [We conclude that] the First Amendment bars the tort claims. . . .
Rodriguez . . . argues the First Amendment does not shield the broadcast of the suicide because Fox could have used a tape delay to cut away before Romero shot himself. She argues that given the nature of the chase, during which Romero had shot at others, and Romero's erratic behavior after he exited the car, Fox should have suspected he might try to kill himself and should have been on alert to cut away before he did so.
[T]he Fox news anchor apologized at the time for failing to cut away before the suicide, and on appeal, Fox expresses regret over the incident. But no authority supports Rodriguez's argument that a broadcast whose "overall thrust and dominant theme" is a matter of public concern loses First Amendment protection if the broadcaster does not terminate the broadcast when it suspects violence may occur, or fails to use a tape delay to prevent airing of a violent scene after it has occurred. . . .
Rodriguez's reliance on cases addressing the news media's right of access to government proceedings . . . is misplaced. See, e.g., Garrett v. Estelle, 556 F.2d 1274 (5th Cir. 1977) (reversing order allowing journalist to film execution); In re The Spokesman-Review, 569 F. Supp. 2d 1095 (D. Idaho 2008) (denying media request to be present during trial testimony by minor victim of sexual assault). These cases turn on the principle that the First Amendment does not guarantee the press special access to information that is not generally available to the public. That principle . . . [does] not apply when the press has gained access to information through lawful means, as in this case. . . .
Finally, Rodriguez cites Green v. Chicago Tribune Co., 675 N.E.2d 249, 255 (Ill. App. 1996), which reversed a trial court's dismissal of tort claims against a newspaper that allegedly published photographs of a patient taken during emergency surgery and printed the dying patient's mother's last words to him, all without consent. The events in that case occurred in the privacy of a hospital room, not, as here, in public view. Moreover, even assuming the Illinois case might apply to these very different circumstances, we are not persuaded by that court's reasoning because it fails to give due respect to established First Amendment principles.
Generally sounds quite right to me.