Authored by Reporters Committee Staff Attorney Sarah Matthews, Legal Director Katie Townsend, and Legal Interns Victoria Moreno and Maya Gandhi
Pre-publication review, or “vetting,” is the process of reviewing news articles, scripts, and footage to address legal concerns prior to publication or release with the goal of reducing legal risk. Given the number of libel cases brought in recent years, particularly lawsuits that appear harassing and large jury verdicts awarded against members of the news media, journalists are increasingly eager to have their stories vetted prior to publication. Unfortunately, many journalists lack the resources to pay for such vetting, and media lawyers cannot always provide this assistance for free. The Reporters Committee offers pro bono pre-publication review for journalists, including documentary filmmakers, but, given its limited resources, only does this work through partnerships with the Fund for Investigative Journalism, the International Documentary Association, and Freelance Investigative Reporters and Editors.
This guide aims to help fill this gap by providing a primer for journalists on common vetting principles to help them better assess the legal risks they may face when publishing an article or releasing a film and how to lower that risk. This guide does not replace the legal advice of an attorney. Journalists who have additional questions or need assistance finding a lawyer can contact the Reporters Committee’s hotline.
Gathering the news
Vetting generally occurs at (or toward) the end of a project. While vetting at the end is a necessary and important step, many legal issues can be identified and addressed much earlier in the story development process. For example, an attorney can help a journalist obtain access to key documents, footage, and court filings and provide advice on how to gather information safely and lawfully. Working with an attorney early on can help reporters and filmmakers identify (and avoid) potential legal problems and roadblocks that could arise later. Although Reporters Committee attorneys cannot provide vetting assistance outside of our partnerships, our attorneys can provide general information, through our hotline, about public records, court access, newsgathering, and other legal issues.
Use confidential sources with caution.
Be particularly cautious of relying on confidential sources when you face a high risk of a libel suit. The law differs depending on jurisdiction, but most states and federal appellate courts recognize some form of legal protection preventing journalists from being compelled to reveal information about their confidential sources or work product. However, while the law varies from state to state on this issue, some courts have applied weaker protections for confidential sources when the journalist is a defendant in a libel suit. For example, California’s shield law does not apply when the journalist is a party to the litigation, although the First Amendment still provides some protection.
Even if a court prevents a defendant journalist from having to reveal a confidential source, the inability to reveal that source could hamper the journalist’s defenses, such as showing the truth of the statement or lack of fault in making it. Fortunately, the plaintiff bears the burden of establishing the falsity of the statement and the defendant’s fault in making it, but journalists can lower their risk of losing the case by having sources on the record to bolster their defenses. Accordingly, where you face a high risk of a libel suit (discussed below), consider taking extra steps to confirm the story with public records or sources willing to go on the record.
Be careful what you promise to confidential sources and be sure to keep those promises.
Though news outlets tend to disfavor the use of confidential sources, some sources will only agree to share newsworthy information if assured anonymity. This may be for a variety of reasons, such as a fear of physical or professional retaliation for speaking publicly. Only promise anonymity when you are reasonably confident you can maintain it, both in your reporting and in the face of potential legal pressure.
Because journalists should treat promises of confidentiality as binding, journalists should weigh such agreements against the value of the information, the motivation of the source, the ability to confirm the information from other sources, and other criteria, such as whether the source has first-hand information.
When promising confidentiality to a source, be very explicit about what you are agreeing to, to the extent you can under the circumstances. There are many possible variations. For example, you could agree not to publish the information but use it for further reporting, or you could simply agree not to include the source’s name. You should, however, be clear with the source if you plan to disclose the name to your editor or anyone else.
If you have agreed to grant some form of confidentiality, you must be rigorous in taking steps to uphold that promise and protect your source. Journalists or news outlets who promise a source confidentiality and break that promise could face civil liability. In Cohen v. Cowles, 501 U.S. 663 (1991), the U.S. Supreme Court held the First Amendment does not protect journalists from suit for breaching a promise of confidentiality to a source.
Protecting a source’s identity entails more than just withholding the source’s name in your reporting or concealing the source’s face in your documentary; it can also mean protecting the source’s identity from compelled disclosure in the event of a subpoena or court order. Accordingly, when a high-profile story creates the possibility that you could be subpoenaed to reveal your source, it is a good idea to discuss this with your source at the outset—before any promise of confidentiality is made—and determine whether, in the face of jail time and/or fines against you, the source would permit compliance with such a subpoena. Read more about the reporter’s privilege—protections for journalists against subpoenas—in the Reporter’s Privilege Compendium.
For filmmakers, protecting a source’s identity may require additional precautions. Be careful not to capture identifying information—such as your source’s location or distinctive physical characteristics, like tattoos or jewelry—on camera.
Filmmakers should also remember that a source could be identified not only through aired footage, but also, in the face of a subpoena, through your raw footage or outtakes. Consider deleting footage that could identify your source—or, at least, encrypting your data, as discussed below.
Filmmakers often require subjects to sign release forms for insurance and distribution purposes, as discussed below, but this paper trail, if disclosed, could reveal your source’s identity. Instead, consider obtaining the source’s verbal consent to the release while recording (and maintaining the source’s anonymity) on camera. Though this approach might be disfavored by insurers and distributors, a verbal—rather than written—agreement allows you to obtain the requisite consent while protecting your source’s anonymity.
Modern technology can be dangerous for communicating with confidential sources. Electronic communications can be hacked, and information about whom we call, email, or text—and when and where we do so—can be obtained from service providers. “Threat modeling,” or thinking through the most likely security and legal risks to you and your sources, can help you and your source decide what level of digital protection to use.
Journalists can take steps to protect their communications with sources by using apps like Signal, a messaging platform that provides end-to-end encryption, and SecureDrop, an open-source platform that allows sources to anonymously send documents and messages to journalists. Encrypting your data is also an important protective step, especially if it contains information that could potentially identify your sources. The Electronic Freedom Foundation (EFF) has a primer on encrypting your data and communications, as well as guides on how to deploy basic digital security tools, while Field of Vision and Freedom of the Press Foundation have published a digital security resource for filmmakers.
National Public Radio’s ethics handbook and the Nieman Journalism Lab at Harvard University both outline some foundational principles to consider when working with confidential sources, while the Freedom of the Press Foundation has several technological tools, including some to help journalists maintain confidentiality.
Nondisclosure agreements are not always valid, but journalists must not try to give sources legal advice.
In recent years, as journalists have increasingly reported on allegations of sexual harassment and assault, they have faced questions from sources who want to know whether they can violate nondisclosure agreements (NDAs) they signed with an employer or someone else in connection with a settlement of claims. Companies sometimes require their employees to sign NDAs in which the employees agree not to disclose sensitive material, such as trade secrets or other proprietary information. But NDAs have also been used to try to silence whistleblowers or victims of sexual abuse and to prevent the disclosure of newsworthy information.
Although contract law varies from state to state, some NDAs may not be enforceable, for example, if they contravene the public interest or are procedurally or substantively “unconscionable.” This is particularly true in the “Me Too” context, as the American Civil Liberties Union has recognized here. At least 12 states have passed laws attempting to restrict NDAs in connection with the settlement of sexual harassment or assault claims.
Journalists should not attempt to give legal advice on the legality of NDAs. Sources seeking legal counsel should discuss with an attorney or contact nonprofits like The Signals Network that can help whistleblowers find legal representation.
Journalists have sometimes been sued for intentional or tortious interference with a contract or similar torts, after publishing information disclosed by a source in violation of a confidentiality agreement. Although state laws vary, such torts often prohibit “intentional” and “improper” interference with the performance of a contract by “inducing or otherwise causing” a third party “not to perform the contract,” and they impose liability for the resulting monetary loss. See Restatement (Second) of Torts § 766 (1979). Courts consider various factors when determining the “impropriety” of the interference, such as the nature of the conduct, the motive, and the interests involved. Id.
Where a journalist simply engages in routine newsgathering techniques — such as by soliciting information from a source — in order to obtain and publish information of public concern, the First Amendment protects this activity and should prevent such tort liability.(1) In fact, the Supreme Court has recognized that the First Amendment provides some protection for newsgathering and “routine” reporting techniques.(2) The high court has held that the press may not be punished for publishing truthful information of public concern, even if that information came from a third party who obtained or disclosed it illegally, so long as the news organization was not involved in the illegality.(3)
Get releases early, if you need them.
In the documentary film context, distributors and insurers increasingly expect producers to have signed appearance releases from every subject in the film, when that subject speaks on camera or is on camera for more than a fleeting moment or crowd scene. Although this is generally not necessary from a legal perspective, having these releases makes the process of obtaining insurance and securing distribution easier for filmmakers. Accordingly, filmmakers can save themselves time and resources by obtaining releases at the time of filming rather than having to track them down afterwards. The International Documentary Association provides more information about the benefits of obtaining appearance releases here.
For traditional journalists, obtaining a release from a subject is generally only considered necessary under special circumstances, such as where the subject is a minor, the article concerns private information like someone’s health or sexual history (and the journalist thus faces a greater risk of a privacy lawsuit), or the material is obtained for commercial purposes (so the journalist could face a right of publicity lawsuit). For more information about invasion of privacy torts and the right of publicity, read the Reporters Committee’s First Amendment Handbook.
Use public records but plan ahead.
If you need to request government records under the federal Freedom of Information Act (FOIA) or a state public records law, do so as early as possible. Many government agencies, especially at the federal level, are slow to respond to such requests. You should also anticipate requiring additional time to appeal or otherwise challenge an agency’s refusal to release the records you requested. Because delay on the part of government agencies is common, if you wait too long to submit a public records request, you may not be able to get the documents you need in time to use them in your story or film.
For a free and collaborative resource on FOIA, visit the FOIAwiki. To create, file, and track federal, state, or local public records requests, you can use the Reporters Committee’s free iFOIA online tool. For a state-by-state guide to public records and open meetings laws, visit the Reporters Committee’s Open Government Guide.
Similarly, when it comes to records from court cases, try to get your hands on what you need as early as possible. In some cases, court filings can be sealed, or documents can be subject to a protective order, and, while it is possible to challenge these kinds of restrictions on access, such challenges can take time, sometimes months or even years. For a state-by-state guide to court access, visit the Reporters Committee’s Open Courts Compendium.
Know when you can record without permission (and when you need it).
It is critical that reporters and filmmakers know the state and federal laws that govern the use of cameras and other recording devices. Most state laws have criminal penalties for violations, and many of them also permit civil lawsuits against those who illegally record. You may record, film, broadcast, or amplify any conversation if all parties to the conversation consent. It is always legal to record or film a face-to-face interview when your recorder or camera is in plain view. In these instances, the consent of all parties is presumed.
Most of the time, when documentarians are filming or conducting face-to-face interviews, their camera and other recording equipment is in plain view. In those situations, it is presumed that the parties being filmed or interviewed know they are being recorded and have consented to being on camera. It is still a good idea, however, to obtain a release, for the reasons discussed above.
Things can get more complicated, however, when a journalist or filmmaker wants to film or record audio of someone who does not know they are being recorded. In a majority of states, you are allowed to record a conversation to which you are a party without informing the other parties to the conversation that they are being recorded, allowing for surreptitious (or secret) recording for use in news articles or documentary films. Federal wiretap laws also permit this kind of “one-party consent” recording of telephone conversations in most circumstances. A minority of states, however, including California, Florida, and Illinois, are so-called “all-party consent” states; they have laws that forbid recording private conversations without the consent of all parties involved. A handful of states have different rules depending on whether the conversation occurs in person or over the phone or based on other factors.
Accordingly, if you plan to surreptitiously film a subject, or record a telephone or other conversation, know what laws apply. For telephone calls, be sure to find out where everyone on the call is located; even if you are in a one-party consent state, like New York, if you are talking to someone in an all-party consent state, like California, you should obtain their consent to record the conversation. To learn more about which states are all-party consent states, check out the Reporters Committee’s Recording Guide.
In addition, if your story will air on a broadcast radio or television network, the Federal Communications Commission’s “Telephone Rule” requires you to inform the other party that you are making a recording that is intended for broadcast. 47 C.F.R. § 73.1206.
Be careful what you put in writing; you may have to disclose it if you are sued.
During the “discovery” phase of a lawsuit, parties generally have to turn over to the other side non-privileged information that is relevant to any of the claims or defenses in the case. In a libel suit, the plaintiff could obtain all records, not covered by the applicable reporter’s privilege, of the journalist’s communications in connection with the story in the case. If those records show that the journalist was biased against the subject of the reporting or not diligent in verifying the story, this could hurt the journalist’s chances of prevailing in the lawsuit.
Vetting the article or film
Familiarize yourself with libel law.
One of the greatest legal risks faced by journalists and documentary filmmakers is the threat of a defamation suit. Defamation can take the form of libel (published or broadcast statements) or slander (oral statements). Although defamation law varies from state to state, it generally occurs when someone makes a false, defamatory statement of fact, with some degree of fault (“actual malice” if the plaintiff is a public figure or official), about an identifiable person and publishes it to a third party, causing injury to the subject’s reputation. Read more in the Reporters Committee’s First Amendment Handbook.
Good journalistic practices are essential and lower legal risk.
Following good journalistic practices — for example, by ensuring the accuracy, fairness, and completeness of your reporting — is not only important for ethical reasons but also reduces the likelihood of a libel suit. Comply with your news organization’s ethics guidelines and policies, even if you are only freelancing for that news outlet. The Society of Professional Journalists’ code of ethics and National Public Radio’s ethics handbook are helpful resources in this department. For riskier statements that could be viewed as defamatory, such as accusing someone of incompetence at their job, engaging in criminal activity, or adultery, the more credible sources who verify the accuracy of the statement, the better.
Also, making your reliance on trustworthy sources transparent — for example, by hyperlinking to the relevant reports or public records — demonstrates your lack of bias and fault and supports the truth of the allegations. This can also reduce the likelihood of a lawsuit in the first place and increase your chances of getting the case dismissed early.
Giving the subject an opportunity to respond and including that response — even if it is “no comment” or the source “did not respond to requests for comment” — also demonstrates your lack of bias and can help your defense if you are later sued.
Being precise with your language and avoiding ambiguity also lowers the risk of a lawsuit. For example, if a person has only been charged with a crime but not convicted yet, make sure your reporting reflects that, explaining the “alleged” criminal conduct. Likewise, if a person has only been convicted of a misdemeanor, be careful not to call him or her a “felon.” Courts have disagreed on whether such an error can support a libel claim.(4)
Consider whether you are identifying someone who could sue you.
A defamatory statement must be “of and concerning” an identifiable plaintiff. This means a plaintiff must show that a reasonable person would understand that the statement was referring to him or her. A statement meets this standard not only if it identifies an individual by name but also if it indirectly identifies the plaintiff. For example, if a story described a female political aide of a congressman and the congressman only had one female aide, then she would be identifiable.
Government agencies cannot bring libel claims, but government officials can. In addition, members of large groups (usually 25 people or more, as a rule of thumb) typically cannot bring libel claims. But, if the offending information pertains to a majority of the members of a small group, any member of the group may sue.
A corporation may bring a libel claim if the relevant statement raises doubts about the honesty, credit, efficiency, or prestige of that business. Businesses can also bring trade libel claims, discussed below.
Consider how litigious and risky the subjects of your reporting are, and plan accordingly.
Research whether all the subjects of your story (including minor characters) have ever sued anyone for defamation or whether they are generally litigious. Writing about someone with a propensity to sue elevates your risk of being sued. Wealthy people are more likely to sue than others. So are professionals whose reputations are important to their livelihoods, such as lawyers, doctors, academics, and celebrities.
Some topics have been more likely to lead to libel suits than others, such as white nationalism, sexual assault, and political corruption. Rep. Devin Nunes (R-Calif.) and President Donald Trump’s reelection campaign have filed numerous libel suits against members of the media in an apparent effort to silence critical reporting of them.
Following good journalistic practices — such as rigorously verifying every statement made in your story and giving the subjects a chance to respond — is particularly important when writing about subjects or topics that are higher risk.
Consider whether your subjects are public figures or officials and therefore would have to prove a higher level of fault to win a libel claim.
All libel plaintiffs must prove that the journalist or news organization was at fault in some way. The U.S. Supreme Court has recognized different standards of fault for different types of libel plaintiffs, with public figures and officials having to show the highest degree of fault. See N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) (public officials); Curtis Publ’g v. Butts, 388 U.S. 130 (1967) (public figures).
Celebrities and others with power in a community usually are considered public figures. Politicians and high-ranking government personnel are public officials, as are public employees who have substantial responsibility for or control over the conduct of governmental affairs. Some courts have found that public school teachers and police officers are also public officials. In addition, courts have recognized that people who are generally private figures can sometimes be considered public figures for the limited purpose of the reporting at issue. This depends on various factors, such as whether the plaintiff injected him or herself into the particular public controversy and has greater access to the media than a private individual, making the plaintiff better able to contradict a false statement. See, e.g., Makaeff v. Trump Univ. LLC, 715 F.3d 254 (9th Cir. 2013).
To ensure breathing room for vigorous public discourse and criticism of elected officials and prominent figures, the First Amendment requires these plaintiffs to prove that the publisher or broadcaster acted with “actual malice” in reporting defamatory information. “Actual malice,” in the libel context, does not mean ill will or intent to harm. Instead, it means the defendant knew that the challenged statements were false or acted with reckless disregard for the truth.
In determining whether actual malice exists, a court may examine a reporter’s newsgathering techniques. The Supreme Court has held that even an extreme deviation from professional standards or the publication of a story to increase circulation do not in themselves prove actual malice. Harte-Hanks Comm’cns v. Connaughton, 491 U.S. 657 (1989). The high court has also explained that while a failure to investigate facts does not necessarily prove actual malice, a “purposeful avoidance of the truth” may. In addition, edited quotations that are not verbatim will not necessarily demonstrate actual malice as long as the alterations do not materially change the meaning of the words the speaker used. In Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991), the Supreme Court acknowledged that some editing of quotations is often necessary, but it refused to grant blanket protection to all edits that are “rational” interpretations of what the speaker said.
The level of fault that a private individual must prove when bringing a libel claim depends on the state, but the First Amendment requires some fault by the defendant before he or she can be held liable for defamation. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). Most states have adopted a standard of negligence, which is lower than actual malice and considers whether the journalist deviated from the ordinary standard of care in reporting the relevant statement. However, in some states, where the reporting involves a matter of legitimate public concern, a private figure plaintiff must show more than negligence. In New York, for example, the plaintiff must prove that the defendant acted “grossly irresponsible.” Chapadeau v. Utica Observer-Dispatch, 341 N.E.2d 569 (N.Y. 1975).
Consider whether you are making an assertion of fact or a protected opinion.
Only assertions of fact, whether express or implied, can give rise to a libel claim. Opinions that imply false, defamatory facts — for example, saying you believe someone committed perjury — could potentially support a libel claim. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). But opinions based on well-known or disclosed facts or that have no “provably false factual connotations” are protected speech under the First Amendment. In addition, courts generally find statements that are clearly theoretical or speculative, such as openly “wondering” about someone’s motives, to be protected opinions. See, e.g., Madison v. Frazier, 539 F.3d 646, 655 (7th Cir. 2008). Accordingly, when asserting an opinion, disclose all the relevant facts and be clear that you are stating your opinion based on those facts.
Courts treat rhetorical hyperbole — such as calling non-union workers during a labor dispute “traitors” or a negotiating position “blackmail” — as protected opinion. Letter Carriers v. Austin, 418 U.S. 264, 284 (1974); Greenbelt Cooperative Pub. Ass'n v. Bresler, 398 U.S. 6, 14 (1970). Similarly, courts generally treat insults and other poorly defined terms, such as “jerk,” “loser,” and “creep,” as protected opinion. See, e.g., Seelig v. Infinity Broad. Corp., 97 Cal. App. 4th 798, 810 (Cal. Ct. App. 2002). In making this assessment, courts consider the general tenor and context and how a reasonable reader would understand the statement.
Beware of republication liability.
As a general matter, in most jurisdictions, you can be held liable for repeating a false, defamatory statement made by someone else. Republication liability can make, for example, a newspaper liable for publishing a defamatory letter to the editor or for quoting someone’s defamatory statement in an article. In the documentary film context, republication liability could arise from the use of interview footage in which the interviewee says something defamatory, even if the film itself does not take a position on the matter. Journalists should be aware of the risk of republication liability and always ask sources and interviewees to provide support for, and take steps to independently verify, factual assertions that, if repeated in an article or film, could subject the journalist or filmmaker to the risk of a defamation claim.
Where it applies, the fair report privilege, discussed below, can help you avoid republication liability.
Beware of trade libel.
Most journalists know that a false, defamatory statement about a person can lead to a lawsuit, but many are not aware that the publication of a false statement of fact about a product (or that disparages the quality of a service provided by a business) can also prompt a lawsuit. Most famously, ABC settled a defamation suit with Beef Products Inc. for at least $177 million in 2017, a record amount in a media libel case. BPI filed the suit in connection with an ABC News series that reported on the health effects of a product officially called “lean finely textured beef” but labeled “pink slime” by critics. The company claimed that as a result of ABC’s reporting, sales plummeted, and it was forced to close three of its four plants and lay off more than 700 workers. BPI sued for $1.9 billion but sought triple damages under South Dakota’s agricultural-product disparagement law, meaning that ABC faced a potential $6 billion judgment. Notably, several other states have similar “food libel” laws. Journalists should proceed with particular caution when reporting on agricultural products in these states.
Rely on the fair report privilege whenever possible.
Using documents to support factual assertions in your story is always a good idea. And using official public documents — like court decisions or statements by public officials — is not just a good idea, it can also help shield you from potential liability.
The fair report privilege generally protects fair and accurate reporting of information disclosed in an official public document, court proceeding, or public meeting, even if that information is false and defamatory. If you are relying on an official document as a source, be sure to attribute the information to that source, so it is clear the fair report privilege applies.
Be careful, however. Not all states recognize the fair report privilege. And, even when the privilege is recognized, the scope of the privilege can vary from state to state, and the tests for determining whether it applies can differ.
Edit with care.
Avoid editing an article or footage in a way that could be misleading or create a false, negative impression. In 2016, journalist Katie Couric and filmmaker Stephanie Soechtig released a documentary film on gun violence in America titled “Under the Gun.” Members of a nonprofit gun-rights organization called the Virginia Citizens Defense League (VCDL) agreed to be interviewed for the film, and the final cut includes portions of that interview, which was conducted by Couric. In the film, Couric is shown asking: “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” Approximately nine seconds of silence follow, during which the VCDL members sit in silence and shift uncomfortably in their seats, averting their eyes. Although the film accurately portrayed most of Couric’s interview with the VCDL members, this 12-second clip did not transpire as depicted. In the unedited footage, Couric’s background check question prompted approximately six minutes of responses from the VCDL members. Rather than use footage of their responses, the filmmakers edited in b-roll footage taken prior to the interview in which Couric asked the VCDL interviewees to sit in silence while technicians calibrated the recording equipment.
After the film’s release, Couric issued a statement apologizing for the edited version of the interview that was shown in the film, calling it “misleading.” Thereafter, the gun-rights group and two of its members filed a defamation lawsuit. A federal district court dismissed the action, and a federal appellate court affirmed that dismissal in 2018, finding the filmmakers’ “editing choices” to be “questionable,” but not actionable. Va. Citizens Defense League v. Couric, No. 3:16-cv-00757, 2017 WL 2364198 (E.D. Va. May 31, 2017), aff’d, 910 F.3d 780 (4th Cir. 2018). While Couric and the filmmakers ultimately prevailed in the lawsuit, the filmmakers’ editing of that 12-second clip led to protracted litigation and harsh criticism of the film — two things that all documentary filmmakers would like to avoid.
This principle applies to print journalists, too. Altering quotations in a way that materially changes the meaning of the words the speaker used could amount to actual malice and lead to defamation liability. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991).
Consider libel insurance.
Freelance and citizen-journalists are often sued in connection with their reporting, and most do not have the resources to hire an attorney to defend themselves. Some homeowner’s insurance policies cover libel and invasion of privacy lawsuits, so read your policy closely to see if you already have coverage for lawsuits arising out of your journalistic work. If not, consider adding such coverage to your existing policy, particularly if you are regularly publishing articles. A freelance journalist can also ask to be added as an additional insured to a news outlet’s policy, if freelancers aren’t otherwise covered, although news outlets more typically request that freelancers indemnify the news outlets.
Consider whether to keep your notes and, if so, for how long.
Keeping detailed and organized notes can help you defend yourself in a libel suit, to demonstrate your lack of fault in reporting the statements that are the subject of the lawsuit. However, vague or careless notes could be used against you. When deciding whether or not to keep your notes, consider the risk of a libel or other tort suit versus the risk of being subpoenaed to turn over those notes. Although the law differs by jurisdiction, most states and federal appellate courts have recognized protections for journalists’ sources and work product, and courts often quash subpoenas based on these protections. So, you may feel the risk of a libel suit outweighs the risk of having to turn over your materials pursuant to a subpoena, but it is a good idea to discuss this with an attorney first.
When deciding how long to keep your notes, consider the statute of limitations for a libel or privacy claim in your state and consider retaining your notes for at least that period of time. Most statutes of limitations for libel and privacy claims range from one to three years, with a maximum of four years. Be consistent in your approach to avoid the appearance of having intentionally deleted materials to evade discovery. If you are on notice about a potential lawsuit, you must keep your notes or risk facing legal sanctions.
- See, e.g., Seminole Tribe of Fla. v. Times Pub. Co., 780 So. 2d 310, 318 (Fla. Dist. Ct. App. 2001) (affirming dismissal of tortious interference claim against reporters and newspaper, citing, among other things, “the public interest in the free flow of information,” the “routine news gathering techniques” used, and the fact that the information pertained to a matter of “public concern”); Nicholson v. McClatchy Newspapers, 223 Cal. Rptr. 58, 64 (Cal. Ct. App. 1986) (finding that First Amendment protects ordinary newsgathering techniques –– such as “soliciting, inquiring, requesting and persuading” sources to disclose information, knowing it is confidential –– and therefore prevented privacy lawsuit against newspapers); Dulgarian v. Stone, 420 Mass. 843, 851–52, 652 N.E.2d 603, 609 (Mass. 1995) (rejecting claim for intentional interference with business relations where TV station broadcast report on issue of public concern and there was no evidence that interview with insurance agent “was improper or carried on for any purpose other than journalism”); see also Jenni Rivera Enters., LLC v. Latin World Entm't Holdings, Inc., 249 Cal. Rptr. 3d 122, 151 (Cal. Ct. App. 2019) (rejecting tortious interference claim against Univision where it had no knowledge of nondisclosure agreement signed by manager when it entered into agreement with him and although it continued paying license fees to manager and promoting his involvement in TV series after learning of confidentiality agreement, this was “not sufficiently ‘wrongful’ or ‘unlawful’” to overcome First Amendment privilege).
- Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (“[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated.”); Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979) (finding that the First Amendment prohibited the state from punishing the truthful publication of an alleged juvenile delinquent’s name lawfully obtained by “routine newspaper reporting techniques” — monitoring police band radio frequency and interviewing eyewitnesses).
- See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 528 (2001) (finding that the First Amendment protected news outlets from liability under wiretap laws for publishing recording illegally made by a third party where the news outlets were not involved in the making of the illegal recording and it involved a matter of public concern).
- Compare Arpaio v. Zucker, 414 F. Supp. 3d 84 (D.D.C. 2019) with Blankenship v. Napolitano, – F. Supp. 3d –, 2020 WL 1548060 (S.D. W.Va. Mar. 31, 2020).