News Guild’s Lunzer: Court ruling could chill First Amendment

WASHINGTON (PAI) – The U.S. Supreme Court’s decision to let stand a lower court ruling letting police officers sue a newspaper over disclosure of personal height, weight, eye color and other characteristics, could chill use of the U.S. Constitution’s 1^st Amendment and freedom of the press, News Guild-CWA President Bernie Lunzer says.

That’s because while lower courts agreed the U.S. Constitution protects the right of media to publish relevant information, those judges ruled it does not protect the right to gather it. And the Supreme Court let that appellate court ruling stand, without comment, on Dec. 15.

“The Court Of Appeals’ appalling ruling” which the Supreme Court justices upheld, “is a dangerous, over-reaching interpretation of the law,” said Lunzer, whose union represents a huge share of working U.S. journalists.

 “Allowing that ruling to stand without further review is a chilling blow to the 1^ST Amendment,” Lunzer told Press Associates Union News Service. 

“The Chicago Sun-Times“-a News Guild-represented paper-“is being punished for doing exactly what a news organization is supposed to do: Hold the people in power to account. The fact that the story involves Chicago’s first family of politics, the Daleys, is all the more reason for suspicion about the motives of both the Appeals Court and the Supreme Court,” Lunzer added.

But he also said the courts won’t stop the Sun-Times, or any other media firm. “Anyone who thinks the media will be intimidated by this unconscionable decision doesn’t understand journalists at all,” Lunzer concluded.

The case started in Chicago 11 years ago, when police arrested the nephew of then-Mayor Richard M. Daley, R.J. Vanecko, after “an altercation” with David Kotchman, who died. Weeks later, Vanecko was put into a lineup with five police officers as “fillers.” “Given Vanecko’s political connections, the subsequent Chicago Police Department investigation was highly publicized,” the 7^th U.S. Circuit Court of Appeals dryly noted.

Officers Scott Dahlstrom, Hugh Gallagly, Peter Kelly, Robert Shea and Emmet Welch “closely resembled Vanecko in age, height, weight” and other factors. Eyewitnesses didn’t choose Vanecko and he wasn’t charged. In 2011, the Police Department closed the case.

The Sun-Times didn’t. It suspected the probe – including the lineup – was rigged, and investigated and published a series on the Kotchman-Vanecko case. Its story on the lineup included the officers’ height, weight, age, eye color and hair color, and a lineup photo.

The officers sued the Sun-Times for invasion of privacy, for getting the info from drivers’ license records, which are supposed to be private. The Sun-Times argued both the invasion of privacy point and the constitutional issue. It said the 1^st Amendment covers gathering data, as well as publishing it. The 7^th Circuit judges sided with the officers, so they could sue the paper. Citing U.S. Supreme Court decisions in 1972, 1974 and 1991, the appeals court sided with the officers and against the Sun-Times on the constitutional point, too, and the justices agreed.

“The 1^st Amendment provides no special solicitude for members of the press,” the appeals court judges said in their decision. “Although the Supreme Court has commented that ‘news gathering is not without its 1^st Amendment protections,’ it has repeatedly declined to confer on the media an expansive right to gather information, concluding that such an approach would ‘present practical and conceptual difficulties of a high order.’ Rather, the court has held the 1^st Amendment ‘does not guarantee the press a constitutional right of special access to information not available to the public generally.'”

Ironically, the main case is over, and – at least against Vanecko-the Sun-Times “won.” A footnote in the appellate court decision notes there was such an uproar over the original outcome that the Cook County (Chicago) Circuit Court appointed a special prosecutor in 2012. He indicted Vanecko on one count of manslaughter. Vanecko pled guilty.

Photo: The 11-cent 1975 stamp celebrates freedom of the press. The design shows an early American printing press with the wording “Liberty Depends on Freedom of the Press.” USPS.