6

Legal

Libel: Be especially careful when publishing statements that are injurious to someone's reputation; it could lead to a libel suit. A plaintiff cannot win a libel suit if the defamatory statement you published was true, but journalists sometimes do make mistakes and publish defamatory information that is false.

The First Amendment provides journalists with protection under some circumstances even when they publish defamatory statements that are false. Plaintiffs must prove -- not only that the statement was false -- but that it was also published with what is called "fault." The fault requirement is different depending on the identity of the plaintiff. Public officials and public figures must prove that a false statement was published with knowledge of falsity or with a reckless disregard for the truth. This is a difficult but not impossible standard to prove. On the other hand, private persons have a more lenient standard to prove, and hence they are typically more successful in libel suits. Private persons must prove only that a false defamatory statement was published with negligence -- carelessness, or lack of reasonable care under the circumstances. Carelessness can be nothing more than copying information incorrectly or misidentifying a person who has been arrested. Carelessness can be failing to contact the person you are writing about in an unfavorable light before publication. It can also be failing to check an obvious source that is publicly available such as a police blotter. Remember that, if you are sued, a jury will find out everything you did and didn't do in reporting a story, and jurors typically show little sympathy for journalistic shortcuts or carelessness that causes damage to a fellow citizen's good name.

It is not uncommon for a source criticized in a story to threaten legal action. The best way for a reporter to deal with a source facing criticism in print is to adhere to the "no surprises" rule. That means call the source before the story is published to run the facts by him and to solicit a response. Give him a fair chance to refute the facts. This can often defuse the situation. After publication of a story, treat an angry person politely and put him in contact with your editor; never ignore him or treat him rudely.

Breaking the law in pursuit of a story: Journalists are subject to the same laws as any other citizens, and the newsworthiness of a story is no defense against a criminal charge. For example, journalists have been prosecuted for such offenses as criminal trespass; disorderly conduct for refusing to follow the instructions of a police officer; theft of trade secrets; theft by hacking into computer, voice- and e-mail systems; and possession of child pornography.

Even when reporters don't violate a criminal statute, they may still cause a personal injury that can lead to a civil lawsuit for money damages. Examples include defamation; invasion of privacy through physical or electronic intrusion into a person's physical space; invasion of privacy through the publication of embarrassing private facts; intentional infliction of emotional distress; misrepresentation or fraud; breach of contract; and tortious interference with contract (interfering with a source's confidentiality agreement with his employer).

Sunshine laws and the freedom of information act (FOIA): First implemented in the 1970s, Sunshine Laws seek to shine light on the inner workings of state and federal government officials and departments. As a result most meetings of regulatory bodies must be public and their decisions and records disclosed. These laws are not limited to the United States. Some 70 nations have implemented sunshine laws of varying strengths.

The Freedom of Information Act (FOIA), enacted in 1966, requires that government agencies disclose records not specifically and reasonably exempt to any individuals -- including journalists -- upon written request, with the right of access enforceable in court. FOIA applies to more than 70 executive branch agencies in the federal government (Environmental Protection Agency, for example) and 15 departments (including the Department of Justice). The president, Congress and the courts are not covered by the law, nor are state governments (although each state has passed its own freedom-of-information legislation, as have a number of cities and municipalities). FOIA does not apply to state or local government agencies records, nor can a reporter FOIA a company or individual.

For the patient reporter -- it can take months for a government agency to fulfill a FOIA request -- they can provide valuable information. For example, in 2005 the Associated Press learned through a FOIA request that National Institutes of Health scientists received "millions of dollars in royalties for experimental treatments without having to tell patients testing the treatments that the researchers' had a financial connection." The New York Daily News used a FOIA to find out that the federal courthouse in lower Manhattan incurred maintenance and cleaning costs that were twice what state court buildings paid, including a bill for $84,812 to polish the brass located in the building entrances. Blogger Jeff Jarvis filed a FOIA to discover that the Federal Communications Commission claim it received 159 complaints from people about a sexually suggestive TV show -- which led to a record $1.2 million against Fox in 2004 -- was brought about by three people who actually wrote the letters to the FCC. (The rest were photocopies.)

The Society of Professional Journalists provides a handy “toolkit” covering FOIAs, including how to apply state and federal governmental, and law enforcement records. And The First Amendment Center also offers useful information on FOIAs.

Government subpoenas: Reporters have only limited protection if they are served with a subpoena to testify or to produce notes and other documents. Protection varies under the circumstances.

Grand jury proceedings: Reporters called to testify before a federal grand jury have no First Amendment protection if they refuse to testify. Refusal to testify can result in a criminal contempt of court citation and a prison term of days to months or longer.

Criminal and civil trials: Most courts recognize qualified First Amendment protection when reporters are called to testify at trials. Courts consider whether the reporter has information that goes to the heart of the case and whether the information can be obtained from sources other than the reporter. The result, generally speaking, is that reporters must often testify at criminal trials, where the public interest in testifying is very high, but often successfully challenge a subpoena to testify at a civil trial.

Many states have what are known as “shield laws” that provide some protection to journalists called to testify. But these laws are typically porous and often don’t provide adequate protection in an individual case. There is no federal shield law that would protect reporters from being called to testify in federal court proceedings (as opposed to state court proceedings). The Reporters Committee for Freedom of the Press has compiled a detailed list of state shield laws.