Asked & Answered

Answers are not meant to be relied upon as legal advice specific to any reader’s situation, but are for informational purposes to help journalists understand how the law affects their work.

Q:Can I be liable for defamation for publishing a critical review or commentary?

A:Since a review is generally an author’s opinion of the virtues of anything from a theater performance to a music album to a newly released smartphone app, many courts will likely find such speech cannot be “false” and therefor cannot be subject to a libel suit. The right to speak includes the right to voice opinions, criticize others, and comment on matters of public interest. It certainly includes the right of an author to publish his or her impressions.

But critics should be mindful of the standards the U.S. Supreme Court has set for how courts should determine what constitutes an opinion. In Milkovich v. Lorain Journal Co., the Court ruled that there is no such thing as an “opinion privilege,” but because factual truth is a defense to a libel claim, a statement or opinion with no “provably false factual connotation” is still protected.

The Milkovich Court described two broad categories of opinion protected by the First Amendment. The first involves statements that cannot be proved true or false by a core of objective evidence. This category of opinion also involves a statement of subjective belief based on disclosed true facts. The Milkovich Court offered the following example of a statement of non-provable opinion: “In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin.”

The second category described by the Milkovich Court involves statements that “cannot reasonably [be] interpreted as stating actual facts,” meaning “loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining” an actual fact, or where the “general tenor of the article” negates the impression that actual facts are being asserted.

As a result of this decision, courts will typically look at both the entire written piece of work and the publication or medium in which the statements occurred in evaluating a defamation claim in its proper context. Courts will examine statements of opinion to see if they are based on or presume underlying facts and will evaluate whether such statements are false.

If there are no facts given to support the opinion, or these facts are false, the “opinion” statements will not be protected. For example, stating that “in my opinion, the actors in this show did not conduct even a single rehearsal prior to opening day” may not be considered an opinion because the underlying facts are readily verifiable and could be proved false.

The Internet poses particularly difficult challenges for courts evaluating the defamatory nature of statements. For instance, a New York appellate court recently stated in Sandals Resorts v. Google that allegedly defamatory comments published on anonymous blogs or in widely distributed e-mail messages like the one the court was considering lack the level of credibility readers would give similar remarks made in other contexts.

In August, a California appeals court upheld the dismissal of a libel suit brought by the head of a small startup tech firm company against the Internet blogging company Gawker Media in response to an commentary piece on the company’s business practices. The judge, in an unpublished opinion, concluded that the blog posting, considered in context — with its casual tone, numerous links to source material forming the basis for their piece and “qualifying language” — “constituted protected opinion and cannot provide the basis for a successful libel suit.”

Ultimately, the safest course of action for any opinion writer would be to include factual assertions to justify any opinions made in such a piece and to make sure that any factual assertions can be verified as true statements.

Q:I made a federal Freedom of Information Act request for records on an individual I am investigating and the government responded by saying I needed the subject’s written consent before the agency will give me the records. Can it do that?

A:Requesting records about a third party often creates tension between the disclosure requirements of FOIA and the Privacy Act of 1974, which was passed in part to protect certain individually identifying records maintained by the federal government. Generally speaking, without submitting proof that the individual consents to having his or her records disclosed or that the individual is deceased, it is hard to obtain such records.

When Congress passed the Privacy Act, it intended to restrict the disclosure of personally identifiable records that government agencies maintain about citizens. It allows individuals to bring lawsuits against government agencies when they improperly disclose records subject to Privacy Act protection.

As a result, federal agencies will often deny FOIA requests for records about third parties on the grounds that such disclosure would violate the Privacy Act and subject the agency to potential liability. Requesters have a few options for overcoming a potential agency denial for such records.

The easiest way to gain access to agency records about another living individual is to get that individual’s consent in writing and attach the consent to the FOIA request. Federal agencies have created different consent forms that can accompany requests. The two most common forms are those from the Department of Justice, known as Certification of Identity, Form 361, and the Department of Homeland Security, known as Form 6-639, Freedom of Information/Privacy Act Request. Copies of these forms can be found on the DOJ’s and DHS’s websites.

If the subject of the FOIA request does not consent to the release of his or her records, obtaining the records may prove difficult. The Privacy Act, however, does not always bar release of individual identifying records under FOIA and it is sometimes possible to make an argument that the records should be released, notwithstanding the lack of the subject’s consent.

Accessing the records without the individual’s consent is possible because an exception to the Privacy Act permits disclosure of personally identifying information when disclosure is required by FOIA. In essence, if a record must be disclosed under FOIA, no liability is created under the Privacy Act for disclosing personal information about an individual.

In determining whether to release records under FOIA where one or more privacy exemptions have been claimed, courts will weigh the public interest in disclosing the record against the purported privacy harm.

To successfully overcome agency claims that the Privacy Act prohibits disclosure, a FOIA requester seeking records about an individual must make arguments for why the privacy interest is minimal or nonexistent and why the public interest in disclosure is high. Courts have interpreted the public interest requirement narrowly, defining it as information that would shed light on government activities or operations.

Additionally, if a requester is seeking records about an individual who is deceased under FOIA, agencies usually require the requester to prove that the subject of the request is dead. For the most part, agencies do not maintain a list of deceased individuals and some, such as the FBI, assume that a person is living 100 years after his or her birth date. A requester can establish that an individual is deceased in a number of ways, including attaching to the FOIA request a copy of an obituary, death certificate or other news clip indicating the individual is deceased.

For more information on overcoming privacy denials and the Privacy Act, see our Federal FOIA Appeals Guide, which can be accessed for free online through our homepage.

Q:Can I film inside government buildings?

A:It depends on the type of building and the type of newsgathering. Many courtrooms and courthouses can be opened to cameras, but press access to certain public institutions is restricted.

Cameras are prohibited in all federal criminal proceedings, but some federal courts have allowed their judges the discretion to permit cameras in civil cases under a pilot program authorized by the Judicial Conference, the body that regulates federal courts. All 50 states allow cameras in the courtroom in some proceedings, but these vary significantly.

Both houses of Congress have established their own rules for media coverage in their press galleries, which issue credentials to media through press associations. Some state constitutions require their legislative sessions be open to the public, but other states offer a limited right of public access, subject to special sessions and other circumstances requiring secrecy.

Some administrative proceedings are open to the public. Fact-finding proceedings typically have stronger public access rights than ones that are judicial in nature, but specific statutes can override these presumptions and govern certain situations.

Other buildings, such as government offices and facilities, are considered “nonpublic” because they have not been traditionally opened to the public. These buildings might have specific guidelines for how filming may take place on the grounds, if at all. A film crew typically may not enter a government office without permission.

Certain categories of nongovernment public buildings are commonly reported on, including schools, hospitals and prisons.

Access to public school buildings differs by state. Generally, public school property is treated as nonpublic, and regulations that restrict access but minimize interference with normal school activities are common. No state laws prohibit media from school grounds, but individual school districts may adopt regulations limiting access to school property. Occasionally, reporters covering events on school property have been arrested for trespassing.

The media have a right of access to report on prisons, but prison officials may restrict these rights if they believe their ability to effectively run the prison will be hindered. While reporters do not have an unqualified right to film specific inmates of their choosing, they cannot be denied access that is granted to the general public.

Private property owners may allow or bar filming at their discretion.

The shrewdest course of action is to determine beforehand what type of government facility you are attempting to enter and what restrictions apply. If restrictions do apply, determine how to obtain permission from the appropriate authorities to enter and report.