From the Hotline

From the Spring 2006 issue of The News Media & The Law, page 25.

The Reporters Committee operates a toll-free hotline for journalists with questions about free press and freedom of information issues. In this column, our attorneys and media lawyers from around the country discuss the latest hot-topic questions.

The attorneys’ answers are not meant to be relied upon as legal advice specific to any reader’s situation. Rather, answers are for informational purposes to help journalists understand how the law affects their work. Consult a lawyer for help with any specific situation, or call the Reporters Committee’s legal assistance hotline for more information or for help in finding an attorney.

Q: There have been times when I’ve accompanied police or emergency rescuers to get greater access to a disaster or emergency scene, but they’ve wanted me to agree to certain restrictions, such as prior review of my material before publishing or the right to keep certain things out of the newspaper. Obviously there are ethical implications to such agreements, but are there any legal concerns? Do they have the right to make these restrictions in the first place? Can I get in trouble if I ignore these restrictions later, because they violate my right to report the news?

A: For perspective on this issue, we turned to two attorneys who handle newsgathering issues for media clients.

Judith M. Mercier, Holland & Knight LLP, Orlando:

The unconstitutional conditions doctrine prohibits a government entity from conditioning benefits on a citizen’s agreement to surrender rights. Arguably, it is unconstitutional for the police or emergency rescuers to require that you let them review your material before publishing or keep things out of the newspaper as a condition of exercising your First Amendment rights. Many times, however, the decision about what to do is a practical one. For example, because your ability to go on these ride-alongs with the police or emergency rescuers is entirely discretionary, if you ignore the restrictions, the agency may not grant you such access in the future and may cite legitimate reasons for the denial of access. If you can show that the reason you were denied access to future ride-alongs was because of your refusal to agree to the restrictions (and not an unrelated issue such as safety, etc.), then you may have legal grounds under the unconstitutional conditions doctrine to challenge that refusal. On the other hand, if you agree to the restrictions without at least protesting in some fashion that might protect you, you might be stuck with your agreement and be potentially liable for breach of contract if you do not follow them.

Another issue that you should be aware of in this context is that if, as part of an agreement, you agree to act as the photographer during your ride-along, you may become part of the story and waive your rights under state or federal law and be required to turn over all your material and testify about your activities.

Paul Berks, Kirkpatrick & Lockhart Nicholson Graham, LLP, Pittsburgh:

The specific terms and circumstances of any “agreement” between a reporter and government employee, and the content of the ultimate publication, are critical to determining whether the circumstance described above could give rise to a viable legal claim against a reporter. There are some core principals that provide useful guidance.

First, generally applicable laws that do not target the press will be enforced against the press even if enforcement may incidentally hinder newsgathering and reporting. Contract law and the law of “promissory estoppel” (i.e., that a party who relies on the promise of another may enforce that promise in court) are general laws that have been enforced against reporters. Second, reporters have no greater right of access than the public generally to information controlled by the government. Therefore, as a general matter, a reporter can make an enforceable promise to restrict its coverage as a quid pro quo for “greater access” to government controlled information than he or she would otherwise be entitled.

However, because there is well-established constitutional protection for newsgathering activities, a court may be reluctant to enforce vague, oral agreements that limit the dissemination of newsworthy information. Furthermore, even assuming an enforceable promise, the agreement between the reporter and government personnel can only be enforced in one of two ways: by a government initiated attempt to suppress a publication that violates the promise, or by a civil action for damages after the publication. Any attempt to prevent publication likely would fail because the suppression of speech through government action is presumptively unconstitutional. An action for damages also would face significant hurdles because the government would have to show a compensable injury caused by the broken promise independent of any harm caused by the subsequent publication. The specific facts and circumstances would be critical to determining whether such a showing could be made.

In short, there is no one-size-fits-all answer to when a reporter has made a legally enforceable agreement in the course of newsgathering. Before entering any quid pro quo agreements, however, it is prudent to clarify as much as possible the terms of the agreement and determine whether such agreements are consistent with any policies promulgated by your news organization.