In order to effectively perform their journalistic activities, journalists must be aware of the laws that govern basic practices, such as attending public proceedings and protecting sources. Journalists in the U.S. generally benefit from laws that promote and presume transparency in government as well as from Supreme Court decisions recognizing that journalists have the ability to broadcast documents that are in the public interest even if a third party obtained them illegally.
However, journalists in the U.S. by and large do not receive special protections from the government by virtue of their job. They are generally treated like any other citizen, and laws therefore tend to apply equally to journalists and non-journalists. (There are some laws, including so-called “shield laws,” that provide special protections to journalists. However, such laws only apply at the state level, and only in some states, and with several restrictions.) Moreover, journalists must navigate complex legal questions about an individual’s reasonable expectation of privacy and must be aware of laws pertaining to the recording of exchanges, such as interviews, that vary from state to state.
The Supreme Court has repeatedly ruled that journalists and journalistic outlets do not have special access or rights to government files or to public property. Put another way, journalists often receive the same access to information or places as any other member of society.
However, the Court has generally promoted permissive (open) access to information produced by the government and to public spaces. This means that journalists have a right to gather news on property that is open to the general public, such as public parks and outside public buildings. It also means that journalists are presumed to have access to public proceedings, such as city council meetings and the meeting minutes that result from them. Additionally, journalists are generally presumed to have access to government data and reports, unless such documents are determined to be protected by narrow exemptions (e.g., privacy or national security). However, the Courts have been unsympathetic to those who try to gather news on private property, including homes and places of business, without the proprietors’ consent. In those cases, journalists can be arrested for trespassing, even if their work involves a story that is in the public interest.
At the federal level, journalists’ access to documents produced by the federal government is largely governed by the Freedom of Information Act and journalists’ access to official federal government proceedings and meetings is largely governed by the Government in the Sunshine Act. States also have their own individual open records and open meetings laws, which govern the same things but within the jurisdiction of the state (e.g., local courthouses). Some states, like Florida, have permissive transparency laws that make it easier for journalists to be watchdogs. Other states, like Massachusetts, have more restrictive laws, which make journalists’ jobs more difficult.
It is important to note that such laws only apply to government agencies (and, in some instances, private companies acting on behalf of the government). In general, private companies and corporations do not have to comply with records requests. Notably, any government rejection of a public records request must be accompanied by a written explanation that includes the statutory reason for why the request was denied. Government employees sometimes do not have a good understanding of the laws themselves, and falls to the journalist to educate them. As such, it is very important that aspiring journalists familiarize themselves with regulations about access to information so that they may trigger the relevant legal requirements when asking government agencies for information (and push back when their request is improperly rejected).
The Supreme Court has also repeatedly ruled in favor of allowing journalists and journalistic outlets to publish confidential information and leaked information about matters that are in the public interest. In the case Bartnicki v. Vopper (2001), a teacher union’s chief negotiator, Gloria Bartnicki, was illegally recorded speaking with the union president about a contentious collective bargaining negotiation with the regional School Board. That intercepted recording was shared by the president of a local taxpayers’ association with Fredrick Vopper, a talk radio host, who then played the tape on his show. Bartnicki contended that Vopper broke the law by broadcasting an illegally recorded conversation. In a 6-3 decision, the Court ruled that as long as someone did not violate a law in obtaining information — in this case, Vopper simply received and published the recording and did not illegally record the conversation himself — then that someone may generally publish the information so long as it involves a “matter of public concern.”
While the Vopper decision was more recently affirmed in the case United States v. Stevens (2010), other recent national security and anti-espionage laws have tested the Court’s resolve in this regard. As such, journalists still run a legal risk when publishing leaks and information obtained through illicit means — especially if such information intersects with national security concerns.
The Supreme Court has generally protected anonymity under the First Amendment. However, such rights have been balanced against competing interests in areas of political activity, national security, and campaign finance.
Of particular note is that journalists can be legally compelled to reveal their anonymous sources. For example, journalists may be held in contempt of court or face obstruction of justice charges for failing to reveal who a source is during a civil or criminal proceeding against that unnamed source.
A landmark ruling in this area came in the Supreme Court’s decision in the case Branzburg v. Hayes (1972). Paul Branzburg, a reporter for The Louisville Courier-Journal, observed (in the course of his regular reporting duties) people manufacturing and using hashish. He then wrote two stories about drug use in Kentucky. Two of the individuals pictured and featured in the article were granted anonymity by Branzburg because they feared prosecution. However, when the article came to the attention of law-enforcement personnel, Branzburg was subpoenaed before a grand jury for the articles and ordered to name his sources (so they could be prosecuted). Branzburg refused to name the sources, citing First Amendment protections. Branzburg’s argument was rejected and he was punished for being in contempt of court. In a 5-4 ruling, the Supreme Court asserted that the First Amendment’s protection of press freedom does not give journalists special privileges in court, and that Branzburg was correctly held for being in contempt of court.
The consequence of this is that journalists in the U.S. can be legally forced to reveal their sources. Journalists who decide not to comply can be imprisoned for obstruction of justice or contempt of court. This is not a hypothetical, either: Multiple journalists in the U.S. have spent time in jail because they believed they had a duty to protect their sources and live up to their promises when granting anonymity. Thus, journalists must be very careful and judicious when promising anonymity, and they must be prepared to face the potential consequences of such promises.
The Supreme Court has repeatedly ruled that journalists are free to photograph, film, or record audio in public spaces, as long as they are not getting in the way of the proceedings. This includes recording public officials and law enforcement officials as they carry out their duties in public — regardless of whether they consent to being recorded. For example, it is perfectly legal to record police officers as they marshal a protest on a city street, so long as the journalist is not obstructing the officers and adhering to their safety directives.
What constitutes a ‘public space’ can get tricky, though. For example, a public state university like the University of Massachusetts Amherst has some spaces that can be considered public forums, such as Haigis Mall and the campus pond, both of which can be accessed by the general public via public pathways. People (including visitors, students, administrators) can be freely recorded in such spaces. In contrast, UMass classroom buildings may be restricted to student use only, and students are likely to have an expectation of privacy within those spaces. As such, recordings in those spaces are only possible with the permission of the students, and in some cases, the university itself. This becomes even trickier when there is an invited speaker giving a lecture in an auditorium: Although that speaker may be speaking at a public institution, UMass officials have the legal authority to restrict any recordings of an event that takes place in UMass space. Conversely, they may choose to make the event completely public, in which case recordings of the speakers and attendees may be unrestricted.
At the heart of the Court’s interpretations of such incidents is the recorded individual’s expectation of privacy. In settings where a ‘reasonable person’ would not expect to be recorded, they may be able to make an intrusion on seclusion claim. For example, if a photojournalist positions themselves on a public sidewalk and uses a telephoto lens or a drone to record a person engaging in a private act at home, then the journalist is likely to have intruded on that person’s seclusion. Similarly, journalists may run afoul of the law by publishing private information about someone — such as details about a health condition — especially if that information is not deemed to be in the public interest.
Recording laws are especially relevant to journalists when it comes to interviewing sources. In some jurisdictions, journalists may record private exchanges (e.g., a phone interview) only if all people being recorded consent to the recording. Massachusetts is one such state, where so-called ‘two-party consent’ is required for any recording of private conversations. Put another way, it is a crime to secretly record people in Massachusetts when there is an expectation of privacy, as with a phone interview.
Many jurisdictions only require one party to consent to a recording, but it is nevertheless good ethical practice for journalists to request permission from their interviewees before recording the interview. When interviewing people across state lines — as with a long-distance phone call or video chat — it is safest to assume that consent from all parties is required because circumstance-specific legal questions may arise about which state’s consent law is most applicable.
Journalists do not have special access to government documents or to public spaces. Laws that apply to regular people also apply to journalists.
The Freedom of Information Act and the Government in the Sunshine Act govern journalists’ access to public records and meetings at the federal level. States have their own separate laws for state records and meetings. Government records and meetings are typically presumed to be open, unless they fit into specific exemptions.
Journalists can be forced by the courts to reveal their sources under penalty of imprisonment. U.S. journalists have been imprisoned for not revealing anonymous sources.
In some states, including Massachusetts, interviewees must consent to having an interview recorded. Even when consent is not legally required, it is still good practice to ask for it.