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 discuss the latest hot-topic questions.
From the Summer 2008 issue of The News Media & The Law, page 22.
Note: 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: I write a blog and regularly feature news and opinion articles from my readers. One reader submission has become the subject of a defamation lawsuit and I have received a letter from the plaintiff’s lawyer informing me that I have to take the post down or risk being named a co-defendant. What are the risks involved in keeping the post online?
A: As long as you did not do anything to make the reader submission defamatory, you should feel comfortable keeping the post online. Under the Communications Decency Act of 1996, “internet service providers” — a term courts have interpreted to include website operators — are immune from lawsuits based on content provided by their users. You cannot be held liable for their content and you do not have any duty to remove the posts from your website. The only words on your site that you can be held liable for are those that you yourself provided, such as any posts that you have authored.
Be careful, though, if you edited the user’s response. If the defamatory meaning of the statements at issue in the lawsuit was created as a result of changes that you made to the article, those statements could ultimately be attributed to you. As long as any changes you made did not create a defamatory statement in the post, you should feel at ease leaving the post online and accessible to your readers.
Q: Can I use FOIA to request access to a settlement agreement the government has entered into?
A: Settlement agreements should be disclosed under FOIA, although some information contained within may be withheld under various exemptions. The Justice Department has long had a policy supporting release of settlement agreements. Title 28, part 50.9 of the Code of Federal Regulations states the Department’s policy to promote open judicial proceedings generally.
Q: I was recently in a situation where, while doing a story about illegal drugs, I was invited to watch a few people shoot heroin. Are there any legal issues with doing that?
A: First, you should know that the First Amendment does not give you a license to violate any law, whether that’s something as simple as trespassing or something more serious, like buying or selling drugs. Courts have long made it clear that journalists must obey “laws of general applicability,” even if that interferes with the ability to gather the news. While there may be exceptions to that rule, and courts might be more lenient if a journalist trespasses on private land to cover a story, such leniency will not be found for more serious crimes.
But assuming you’re not talking about doing anything illegal yourself, there shouldn’t be a legal problem with witnessing such activity. It is of course always a good idea to check with a lawyer if you know more specifics about the arrangements before you go.
However, you should be aware that your news accounts of illegal acts could well lead to a grand jury subpoena, which you may or may not be able to get quashed. In fact, the most significant reporter’s privilege case, Branzburg v. Hayes in 1972, concerned journalists who had witness drug transactions and use and reported on the activity.