Even if you’re on an important fact-finding mission, you’re not above the law.
Here’s how the Supreme Court put it in an opinion addressing whether promises made by reporters to a source in the course of news reporting could be contractually binding:
[T]he truthful information sought to be published must have been lawfully acquired. The press may not with impunity break and enter an office or dwelling to gather news… It is therefore beyond dispute that [t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others… Accordingly, enforcement of such general laws against the press is not subject to stricter scrutiny than would be applied to enforcement against other persons or organizations.
If you violate the law while looking for information, you hand anyone who might want to sue you a potentially valuable legal opportunity. Even if your story is important and turns out to be entirely accurate, you are legally vulnerable.
News organizations have found themselves facing massive liability when their reporters have broken laws while seeking and obtaining news information. In one famous case, a reporter for the Cincinnati Enquirer was investigating Chiquita Brand International’s Latin American business practices. In the course of his reporting, he illegally tapped into the company’s voice mail and listened to voice messages. The lesson was a tough one: A journalist can be fired, fined, sued and face the possibility of jail for illegal conduct while reporting.
Here’s a good roadmap for citizen journalists. The New York Times states in no uncertain terms that its reporters must stay within the bounds of the law when it comes to gathering information:
From The New York Times Ethical Journalism Handbook:
“Staff members must obey the law in the pursuit of news. They may not break into buildings, homes, apartments or offices. They may not purloin data, documents or other property, including such electronic property as databases and e-mail or voice mail messages. They may not tap telephones, invade computer files or otherwise eavesdrop electronically on news sources. In short, they may not commit illegal acts of any sort.”
Unconventional Reporting and the Law
The problem for those gathering news information is that there are so many potentially relevant laws — civil and criminal, federal, state and local — that it can be difficult to anticipate whether and when you might be crossing some statutory line. The best advice is to thoughtfully consider unconventional, aggressive reporting techniques and get legal advice when you’re uncertain.
Would your conduct violate laws relating to secret recording or interception of electronic communications? Those are treacherous areas with a web of federal and sometimes varying state laws coming into play.
Intercepting electronic communications and electronic eavesdropping are crimes. But how about recording a conversation to which you are a party, let’s say a telephone interview in which you’ve got a local politician on the line, or two or three on a conference call? In some states, the recording is illegal unless all parties consent to the recording. In other states, which are called “one-party states,” only one participant in the conversation needs to consent for the taping to be legal. That person can be the one with the recording device. The Reporters Committee for Freedom of the Press has an excellent overview and state-by-state guide on laws about taping phone calls and electronic eavesdropping.
Are you potentially committing fraud or misrepresentation by what you say to a source or subject? Law enforcement officers can lie to get information without risk of prosecution for fraud or misrepresentation. Journalists have no such immunity. Lying in the course of news reporting raises legal concerns in addition to questions of ethics.
Are you trespassing or intruding on someone’s property or breaking some state privacy law? Do not enter private property without proper permission. If you knock on a source’s door and are told to leave, do so immediately. If invited in, do not exceed the permission you have been granted. Do not take an invitation for a fireside chat, for example, as permission to videotape. Even journalists who have accompanied law enforcement officers onto private property in “ride-alongs” to get up-close access to crime-related stories have gotten into legal trouble.
Would you encourage someone to break the law to get you information? Would you offer cash to motivate a source to unlawfully obtain information? If so, you could become an accomplice or guilty of aiding and abetting the commission of a crime. Paying sources also raises ethical concerns.
If someone hands you illegally acquired, newsworthy information and you’re just a passive recipient, you’re likely in the clear. Sometimes the less you know about who acquired the information and how it landed in your lap, the lower your legal risk. But encouraging or helping someone to illegally access information could put you both in legal trouble.
Generally, ignorance of the law is no excuse. If you’re unaware of a law and break it unknowingly or encourage someone else to do so, you still can be punished.
So here’s a list of legal safety tips:
- Ask permission before you tape a conversation, unless you’ve got a very good reason not to and are certain clandestine taping would be legal. Get consent recorded on the tape in some form, even if it’s to say, “O.K., the tape’s running,” at the beginning of your interview, to make clear the other parties to the conversation were aware of the taping before speaking.
- Don’t lie to sources or subjects. Don’t misrepresent yourself or gain access to a place or information under false pretenses.
- Don’t enter private property without permission from someone authorized to give it. If asked to leave someone’s doorstep, do so immediately. Don’t exceed the scope of the permission. If you’re invited into the dining room to interview your subject, don’t check out the home office when your host heads to the kitchen to refill the coffee cups, or sneak out a cell phone camera and photograph documents.
- Don’t intrude on someone’s privacy. Photographing a suburbanite sunbathing in his backyard or peeping into someone’s window can be illegal intrusions under state privacy laws. In some states, sifting through people’s garbage can violate privacy rights, even though the Supreme Court said there’s no reasonable expectation of privacy in trash left for collection in an area accessible to the public.
- Don’t encourage anyone else to break a law. That can be just as risky as breaking the law yourself.
- In general, if you are planning any sort of unconventional newsgathering tactic, think carefully about whether your unorthodox approach to newsgathering might put you on the wrong side of the law. If in doubt and determined to plunge ahead, consult a lawyer first.
- Don’t walk away from a potentially important news story. Instead, find a lawful way to pursue it.