"Taking risks is inherent in investigative journalism. But there are important steps at each phase of the reporting process that you can take to help lower your legal risk and strengthen your stories.
While you'll always want to consult an attorney for specific legal advice related to your newsgathering or reporting, it's important to have some baseline knowledge about ways to avoid certain legal headaches before you take on the next assignment.
Newsgathering
Newsgathering, of course, is the crux of an investigative journalist's job - and to protect yourself from civil or criminal liability, you should avoid breaking the law while you interview sources and collect information. Here are some important things to keep in mind during the newsgathering process:
* You cannot enter private property without consent or refuse to leave once asked. Trespassing can subject a journalist to being sued for damages or criminally prosecuted. Law enforcement has increasingly weaponized trespass threats, so be aware of your surroundings at all times.
* Avoid misrepresenting yourself when approaching sources for information. Investigative journalism often involves contacting people who may be hesitant to speak to a journalist. Nonetheless, pretending not to be a j ournalist to get sources to talk with you is a bad idea. Not only could it land you in legal trouble - as you run the risk of being charged with fraud - but it's also an ethical no-no.
* Follow your state's recording laws: 38 states and Washington, D.C., allow recording with one party's consent, and roughly a dozen states require that all parties consent before a conversation is recorded. Regardless of the state-specific law, however, it is a best practice to get consent on tape at the outset of a conversation.
While it is generally OK for a journalist to film in public places, the potential for liability exists if you capture video that violates a recording law, if you take photos or videos that violate hidden camera laws, or if you take photos or videos of certain federal facilities.
More information and state-specific resources can be found in the Reporters Committee's "Reporter's Recording Guide."
* What if you obtain a recording illegally made by someone else? In 2001, the Supreme Court ruled in Bartnicki v. Vopper that publication of such a recording is protected under the First Amendment if (1.) the journalist was not involved in unlawful activity, (2.) it's truthful and (3.) it's a matter of public concern.
* Some jurisdictions have recognized a First Amendment right to film police activities in public (subject to reasonable time, place and manner restrictions). It is best to wear your press ID prominently when newsgathering in areas with police presence, like a protest. A journalist should generally record from a safe distance and comply with police orders; however, police are not allowed to target journalists who are legally compliant while reporting, for instance, by searching or seizing your phone.
For more information about reporters' rights at protests, consult the Reporters Committee's "Police, Protesters and the Press."
Pre-publication vetting
Vetting your investigative stories before publishing them can significantly reduce legal risk. Understanding the basics of what can trigger liability is an invaluable skill. Crucially, vetting can help journalists and news organizations avoid libel lawsuits.
* Assess the risks of statements you make in your reporting: Are they assertions of fact or protected opinion? While only assertions of fact can give rise to a libel claim, opinions that imply false and defamatory facts could support such a claim, as the Supreme Court held in Milkovich v. Lorain Journal Company. Even when stating an opinion, make it clear it's an opinion, and include all relevant facts on which you're basing your opinion.
* Identify potential persons who may be valid plaintiffs in a libel suit: This includes any person identified directly or indirectly, specific government officials, corporations, or members of a small group (generally under 2.5 people) if "all" or "most" of the members are implicated. Then, you should assess the probability that these persons or groups may sue: Are they public officials or public figures (politicians, celebrities, etc.)? If so, the risk is likely lower, as they need to prove a higher standard of fault - "actual malice" - that the journalist published the statement "with knowledge that it was false or with reckless disregard" of the truth. If the subject is a private figure, depending on state law, the subject usually only has to show that the journalist made a false statement that injured their reputation with negligence - a lower standard. For more on actual malice, check out the Reporters Committee's explainer on the legal standard, "Everything you need to know about "actual malice.'"
* Wherever you can, include links or citations to the source of your information. Limit your use of confidential sources when possible. Every journalist, of course, wants to protect their sources and the identities of those who were promised confidentiality - but note that in observing this responsibility, you may open yourself up to further risk of losing a libel suit because if you need the source to testify on your behalf, they won't be able to. There may also be circumstances where you are compelled to reveal the source's identity in court, which places a journalist in a legal and ethically difficult situation. More information on journalists' right not to be compelled to reveal sources or reporting materials in court can be found in the Reporters Committee's "Reporter's Privilege Compendium."
* Seek comment from the subjects of a story wherever possible, especially if you are publishing something high-risk about a particularly litigious individual. This ensures you cover your bases and can be used for defense in a potential libel lawsuit. Even if the subject does not respond or says, "no comment," include that in the published piece as their response to your efforts. Ensure you give someone adequate time to respond to a request for comment. This is especially true for investigative journalists who often spend weeks or months digging into stories. Try to reach the subject in multiple ways, multiple times (such as a combination of phone calls and emails). Going to adequate lengths for comment demonstrates your due diligence.
Fair and accurate reporting on official public documents and proceedings is protected by the fair report privilege, the scope of which is dependent on state law. When using information from such documents, it's important to properly attribute the source in your story to trigger the fair report privilege.
Beyond libel actions, journalists can face other privacy lawsuits by being accused of intrusion, publication of a private fact, false light, and misappropriation of likeness. More information on these issues and other First Amendment basics can be found in the Reporters Committee's "First Amendment Handbook."
Reporters Committee attorneys provide pre-publication review services through our partnerships with Freelance Investigative Reporters and Editors (FIRE), the International Documentary Association, the Fund for Investigative Journalism, and on a case-by-case basis. We can also refer journalists with prepublication needs to pro bono outside counsel through our ProJourn program.
To understand more about vetting and minimizing your risk, consult the Reporters Committee's "Pre-Publication Review Guide."
You're facing legal action. Now what?
So you've taken all the necessary steps and precautions to mitigate your risk while reporting, but you still find yourself on the other end of a lawsuit or a subpoena. Here's what to do and where to go for help.
* If you receive a subpoena or are served with a lawsuit, immediately inform your attorney if you or your organization has one. Then, if you have insurance, notify the insurer.
* If you don't have access to counsel, call the Reporters Committee's free Legal Hotline at 1-800-336-4243 or submit an inquiry online. The Hotline is available to journalists 24/7 if you have questions or need help finding a lawyer. "A journalist's guide to using RCFP's Legal Hotline" offers more guidance on when to contact the Hotline and what to expect when you do.
* If you are under threat of arrest, immediately identify yourself as press. Do not unlock your phone in the presence of police (beforehand, turn off touch and facial ID; instead have a numerical passcode on your phone). You do not need to consent if the police ask for your equipment or property without a warrant. Know your Miranda rights by heart (they should tell you prior to official questioning, but they still might not). Ask for a lawyer and then remain silent. When given a phone call, call your primary contact who is the most likely to answer. Know that they can only hold you for a limited time without a formal charge.
The Reporters Committee has many additional resources on our website, including more reporting resources and legal guides to help journalists understand their rights. Remember that these resources do not replace the advice of an attorney when faced with specific legal action - so, as always, contact your attorney or attempt to retain an attorney as soon as possible.
All of the information and resources referenced here can be found at rcfp.org/resources." [1]
1. How to navigate legal danger. Singh, Gunita; Galiba, Mayeesha. Investigative Reporters and Editors, Inc. The IRE Journal; Columbia Vol. 46, Iss. 4, (Fourth Quarter 2023): 34-36.
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