A summary of legal topics of interest to journalists in the course of news-gathering, ranging from the use of confidential sources to taping interviews to gathering news on public school campuses.
I. USING CONFIDENTIAL SOURCES
The use of confidential sources has been an indispensable part of journalism and telling important stories since even before the founding of our country. Benjamin Franklin’s brother went to jail for refusing to reveal the name of a source. John Peter Zenger, a pioneering and crusading journalist in colonial times, was prosecuted (and acquitted) when he wouldn’t reveal the name of a source. Every day, we read important stories that were made possible by the use of confidential or anonymous sources. Criticism of government and exposure of government wrongdoing must sometimes depend on the use of confidential sources.
But the use of confidential sources should generally be the exception and not the rule, and the use of confidential sources to state opinions, particularly in a political context, should be discouraged. Editors and reporters should seriously consider the value of information received from a confidential source before deciding to print it. It’s better to get something on the record and for attribution if you can.
Newspeople should consider the following before using a confidential source:
A. How important is the story? Does its news value outweigh the potential damage to reader trust?
B. Can you change the storry to avoid using a confidential source?
C. Have other means of getting the story and using the information been exhausted?
II. BEING ON THE SAME PAGE
If a reporter concludes that it’s necessary to grant anonymity, it’s best to consult with a supervising editor before making such an agreement. The identity of anonymous sources should be disclosed to supervising editors, and the source should be told about that. Reporters should also tell the source they’ll try to get others to speak on the record about the information in question. If you make a promise you can’t keep, the source might sue you for breach of contract. That’s what happened in the US Supreme Court case Cohen v. Cowles Communications, where a source who’d been promised anonymity sued the Minneapolis Star Tribune for publishing his name in a story, which caused him to lose his job.
III. SHIELD LAWS
A. State Courts
49 states have recognized so-called “shield laws,” either by statute or by case law. These laws generally protect news-people against having to disclose “confidential sources” or surrender “unpublished information” such as notes and out-takes.
The coverage of these laws varies. In California, article I, section 2(b) of the California Constitution and Evidence Code section 1070 provide an immunity from being held in contempt to reporters, editors, publishers, and other people connected with or employed by newspapers, magazines, press associations and wire services, as well as radio or TV news reporters. The California shield law applies to both the source of information (“confidential sources”) and to “unpublished information” such as notes, out-takes, unpublished photographs and tapes.
When a criminal defendant seeks information protected by the shield law, the courts have set up a “balancing test” which weighs how important the information is to the criminal defendant, whether the defendant can get the information elsewhere, and other factors. See Delaney v. Superior Court (1990) 50 Cal. 3d 785. On the other hand, when the prosecution seeks information in a criminal law, the shield law is absolute. Miller v. Superior Court (1999) 21 Cal. 4th 883. And in a civil case where the press is not a party, the immunity from contempt is also absolute – there’s no balancing test. New York Times v. Superior Court (1990) 51 Cal. 3d 453. This case helps journalists avoid being forced to be professional witnesses instead of professional journalists.
Does the shield law cover bloggers? Good question. The California shield law covers people “connected with or employed upon” a “newspaper, magazine, or other periodical publication, or by a press association or wire service.” That question is likely to be litigated in the near future.
B. Federal Courts
Congress has not yet enacted a federal shield law and the scope of protection for journalists in federal court is being hotly litigated in several cases. In Branzburg v. Hayes (1972) 408 US 665, the Supreme Court did not reach a clear conclusion one way or the other. Justice Powell wrote a concurring opinion saying that even though the newsperson lost that case, newspeople “are not without constitutional rights with respect to the gathering of news or in safeguarding their sources,” and that became the touchstone for a generation of federal case law finding a reporter’s privilege under the First Amendment. (Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993); US v. Criden, 633 F.2d 346, 355; Riley v. City of Chester, 612 F.2d 708, 715.) The majority in Branzburg recognized, “Without some protection for seeking out the news, freedom of the press could be eviscerated.” But some recent federal appellate court opinions have questioned whether there is a shield law, and there’s a bill pending in Congress which would grant shield law protection on the federal level.
The bottom line is that you should be careful in a situation where you might end up in a federal court, and as I said earlier it’s important that a reporter and an editor be on the same age and that they agree on the importance of a story and the need to use a confidential source.
IV. TAPING INTERVIEWS
Another issue which commonly arises in the course of news-gathering is whether you can tape a phone call with someone. The answer in California is basically “not without their permission.” California is a two-party consent state, which means that if you tape a call without someone’s consent you’ve violated the law (Penal Code section 632). If you want to tape a call, make sure that you get someone’s consent and that the consent is on tape.
V. PRIVACY ISSUES AND TRESPASSING
A related issue comes up when you’re covering accidents how much latitude do you have to cover the news without invading someone’s privacy? A California case illustrates how difficult it can be to draw the line. In a case called Shulman v. Group W Productions a mother and her son were injured when the car in which they were riding flew off the highway and tumbled into a ditch. It came to rest upside down and the mother was pinned under the car and had to be cut free by the “jaws of life.” A rescue helicopter was dispatched to the scene. A TV camera operator videotaped both the accident scene rescue and the helicopter ride. The accident victim sued both for the videotaping of the rescue and the taping of the helicopter ride. The California Supreme Court held that she didn’t have a claim for the broadcast of the rescue because that was a matter of “legitimate public concern” and it was “substantially relevant to the newsworthy subject of the piece,”a broadcast called “On Scene – Emergency Response.” The Court reached a different result on the helicopter ride taping, though: “In contrast to the broad privilege the press enjoys for publishing truthful, newsworthy information in its posession, the press has no recognized constitutional privilege to violate generally applicable laws in pursuit of material. Nor, even absent an independent crime or tort, can a highly offensive intrusion into a private place, conversation or source of information generally be justified by the plea that the intruder hoped thereby to get good material for a news story.”
The law can be distilled this way: you have a right to gather news in a public place, but you don’t have a right to commit trespass or break the law trespassing into a private home or tapping a phone line to gather the news.
VI. ACCESS TO SCHOOL GROUNDS
Journalists have a right of access to school grounds. The issue is whether you have to register with the principal. California law says “outsiders” have to register with the principal to enter or remain on school grounds. Penal Code section 627.1(a)(7) provides that journalists are not “outsiders,” but the Attorney General and many school districts have taken the position that journalists still have to register, and the Attorney General’s opinion hasn’t been challenged in court. It may be best to comply with a registration requirement as long as the school officials recognize your legitimate right to gather the news and, in the words of the Legislature, “the right to visit school grounds for legitimate nonviolent purposes.”
VII. ACCESS TO DISASTER SCENES
Reporters are given a right of access to disaster scenes by California law. Penal Code section 409.5 allows law enforcement to close off an area where a “flood, storm, fire, earthquake, explosion or other disaster” happens, but the same law says it doesn’t prevent representatives of a news service, newspaper, or radio or TV station or network from entering the closed area. Most police departments issue press credentials to implement that law.
VIII. USE OF “LEAKED INFORMATION”
The press generally has the right to use “leaked” information even when the person giving the information may have broken the law. You may run into an issue where the government, or a private party, will want to know the source of the information. That subject is covered under the shield law.
IX. ACCESS TO JURIES AND GRAND JURIES
Jurors cannot be prohibited from talking to you after the jury has been discharged. On the other hand, they don’t have to talk to you.
The press has a presumptive right of access to Grand Jury transcripts in California once an indictment has been handed down. (Penal Code section 938.1) In order to defeat this right of access, a criminal defendant has to show that he or she will be unable to obtain a fair trial. That is a very difficult showing to make and, except in the Michael Jackson case, the courts have rejected claims by criminal defendants that transcripts should not be released.