From the Hotline

From the Summer 2006 issue of The News Media & The Law, page 35.

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: In light of the U.S. Supreme Court’s recent ruling in Garcetti v. Ceballos that government employees who speak out about wrongful conduct can be punished for such speech, how can reporters covering whistleblowers continue to report on those important stories?

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

Charles D. Tobin, Holland & Knight LLP, Washington, D.C.:

As we have seen from the pronouncements of our courts, executive officials and legislators in the past few years:

• Government employees can be fired for exposing their agencies’ serious misdeeds.

• Public officers can freeze reporters out of routine information in retaliation for unfavorable journalism.

• The federal government’s more pro-access policy has given way to an official culture that encourages the denial of Freedom of Information Act requests where any “sound legal basis” exists.

• An attorney general fueled by several years of bad court rulings on reporters’ promises of confidentiality has hinted that journalists could be prosecuted for reporting on closely held government information.

• Congressional representatives overeager to jump on the national security bandwagon denounce critics of official policy as “traitors.”

In the face of this tri-cameral assault, can the press still expect to report tips from whistleblowers with the same vigor as before? Good question. The answer is still unclear.

The recent wave of news stories about warrantless wiretaps, executive branch requests for telephone and bank records, and the treatment of prisoners of war strongly suggest that confidential sources continue to speak out when it really counts.

So long as there remain Mark Felts and Daniel Ellsbergs willing to risk their jobs to expose serious government misconduct — and Myron Farbers and Judy Millers willing to do whatever it takes to tell their stories — the voices of the whistleblowers should remain prominent.

But America’s newsrooms need to continuously educate our communities. Readers and viewers must understand why sources who inform public debate are not traitors, and why measures like the shield bills pending in the Congress can help assure that these voices won’t be silenced.

If the journalism community is too quiet on these issues, that could chill the news of the day even more than the silence of the community of sources.

Tom Devine, Government Accountability Project, Washington, D.C.:

Although the high court’s decision was disastrous for government accountability, as a rule reporter-source communications with whistle­- blowers should dodge the Garcetti bullet. The decision cancels First Amendment rights when government workers do their jobs. Hardly any employees’ job duties require them to alert the press when the government has not told the truth in its official position.

Lower courts have since applied the ruling numerous times already, and results are encouraging from that angle.

First, rulings have noted that few employees have jobs requiring them to monitor and report misconduct. While some do, such as inspectors, investigators and auditors, their duties almost never extend to blowing the whistle through media disclosures. Second, broad job descriptions are insufficient to cancel constitutional free speech rights. The ruling is limited to actual, official duties. Third, paper duties are not enough, if the culture and expectation is that employees must remain silent or that breaking ranks is an act of disloyalty. Ironically, an illegal gag order can be a whistleblower’s best resource for retaining First Amendment protection!

It would be unrealistic to dismiss the decision’s impact as marginal, however. It strips constitutional protection for anti-corruption officials like inspectors general who often are excluded from statutory employment rights. Already it has been extended to government contractors.

Most significant, by raising the level of fear in government ranks it can create a chilling effect and increased self-censorship. Reporters should be prepared to explain the limiting boundaries from cases interpreting Garcetti. The Government Accountability Project is tracking all relevant decisions. Further, the press can help itself by covering efforts to win statutory whistleblower shields, such as the climax of a campaign to restore the Whistleblower Protection Act and its prior protection for duty speech. That legislation’s fate will be decided this year in a conference committee for the Defense Authorization Act.

•

Q: If I’m calling a typical customer service line, many of the phone calls begin with a recording telling me something along the lines of: “This call is being recorded and may be used for training purposes.” When an actual customer service agent answers the phone after this message, do I have to state that I’m recording the conversation as well?

A: Generally, the question will come down to whether the other party has reasonable notice that you are recording, and has consented to it. A court should find that the recording gives constructive notice that the customer service company has consented to recording the conversation.

The first step in answering the question is to discover what the general recording laws of your state are. A majority of states only require “single-party consent” which only requires one party — the recorder — to know that the conversation is being taped. If the law of a state such as this applies, then clearly the caller does not need to tell the customer service agent that the conversation is being recorded. (See “Can We Tape?”, a state-by-state guide to taping, at https://www.rcfp.org/taping/index.html.)

On the other hand, some states require what is called “two-party” or “all-party” consent. This means that all parties to a conversation must give consent in order to legally tape the conversation. If the law of a state such as this applies, while the outcome is not as clear as “single-party consent,” the caller should still be able to record without telling the customer service agent. This is because the recording saying that the customer service agency is recording the conversation acts as a kind of constructive notice of acceptance. In other words, it is letting the caller know they consent to recording the call. Therefore, when the caller gives consent by staying on the line, then all parties to the conversation should have notice that the conversation is being recorded. In this case, the caller can record the conversation without informing the customer service agent.

For specifics on recording particular conversations, or whether particular recordings constitute constructive consent, you must contact an attorney in your state.

•

Q: What right do I have to access court proceedings involving three high school students charged with conspiring to plot a Columbine-like attack on their school?

A: In contrast to the strong presumption of public access to adult criminal proceedings, juvenile courts traditionally have been closed to the public. As a policy matter, it was believed that youthful offenders should not be stigmatized forever because of one mistake, and that secrecy would promote rehabilitation of the youthful offender.

But high profile crimes involving minors, such as the Columbine massacre, have led to changes in public attitudes about the juvenile justice system and a youthful offender’s right to privacy. The rise in juvenile crime rates, coupled with the severity of violent crimes committed by juveniles, has led many states to prosecute more juveniles as adults when they are charged with serious offenses and open juvenile proceedings and records in these cases to the public.

For example, court records and proceedings involving youths charged with offenses that would be considered felonies if committed by adults are public in Idaho, Indiana, Iowa, Maine, Maryland, Minnesota, Missouri, Utah and Virginia. In 1997, an amendment to New York state’s court rules created an explicit presumption that Family Court proceedings are open to the public, and members of the public were admitted to several high-profile juvenile cases.

To determine their right of access, reporters following a juvenile case should determine if the minor has been charged with conduct that would be considered a felony if committed by an adult. If so, they should then determine if their state treats these cases under the juvenile or adult court system. With the erosion of privacy that traditionally enveloped juvenile proceedings, the press’s right of access to proceedings involving juveniles is not as clear cut as it once was.