Document Type

Article

Publication Date

2019

Abstract

The news media usually chase stories in order to publish them—but sometimes not so much. In some instances, media entities vigorously pursue a story—and purchase the source’s right to tell it—for the specific purpose of ensuring that it does not see the light of day. This practice, commonly called “catch and kill,” has recently come under close scrutiny and raises a host of questions.

These include pragmatic questions: Does the practice work? Can the media entity (or a third-party beneficiary) really enforce the underlying contract? Doesn’t the source’s willingness to abide by the contract come down to a simple economic calculation: He or she will honor the agreement until it becomes more profitable to breach it? If the source chooses to breach the contract, does the public disclosure of the effort to suppress the story do more harm than the story itself would have done? Oh, and there’s this question: Can someone go to prison for engaging in catch and kill if a specific use of it runs afoul of campaign finance regulations or other laws? That seems like something worth considering.

Other questions go to normative issues: Is catch and kill journalistically ethical? Indeed, does it have anything to do with “journalism” at all? If we think it ethically problematic, then why? Is it because the media entity pays for the story? Is it because the entity does so with no intent to publish the information? Or is it because the practice can too easily lead to extortionate and other malignant behaviors? All of the above? Do valid ethical arguments in support of the practice exist? Or do they all come down to this: “Ethics problem? No ethics, no problem.”

Still other questions associated with the practice—the ones explored in this article—go to the very foundations of constitutional doctrine: Does the First Amendment protect catch and kill? If so, then how is that consistent with the informative, instructive, and educative values that we think free speech serves and that our First Amendment doctrine seeks to advance? If not, then how do we distinguish this practice from other, more commonplace editorial decisions to withhold publication— which the First Amendment plainly does protect? Is catch and kill speech at all—or is it conduct in the form of thinly veiled influence peddling? Is it a muscular exercise of First Amendment rights—or a callous defiance of everything for which the First Amendment stands? We have a lot to ponder here.

Comments

2019, Published in Communications Lawyer Spring 2019, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association

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