Journalist's Guide

matter of public significance, state officials may not punish the publication of the information absent a state interest of the highest order. This rule has been extended to shield journalists from civil liability, such as damages owed to the subject of the publication. But what about the middle ground, for example, when you receive documents lawfully, but they were unlawfully obtained by your source? Does it make a difference whether you knew? You are probably “in the clear” when receiving unlawfully obtained documents even if you know how your source obtained them as long as you did not participate in or authorize their theft. For instance, in one Maryland case, the judge determined a newspaper could not be punished for receiving and publishing confidential university records of student-athletes that had been provided to the reporters gratuitously. Maryland law criminalizes the receipt of stolen property, and a similar statute has been applied in at least one other state to a newspaper’s receipt of a stolen document. However, such an application seems highly unlikely after a decision by the Supreme Court in which the Court held a journalist could not be held liable for broadcasting the contents of an illegally intercepted telephone conversation that was given anonymously to the journalist, even though the journalist had reason to believe the tape was obtained illegally. When you are seeking access to private places or documents, the only way to shield yourself totally from newsgathering liability is to present yourself truthfully and obtain consent from the owner or another person authorized to give consent. If the owner is unavailable, consent from a government official usually will suffice where there is an established custom of press access. At the very least, governmental consent will strengthen a defense against lawsuits. Of course, strict adherence to these rules is not possible in the real world, and would limit your ability to gather news effectively. But to the greatest extent possible, consent is the best course. Seek legal advice If you are planning to carry out a course of newsgathering you sense is less than kosher, get the advice of your publication’s or station’s lawyer. Newsgathering law is varied and fact-specific. Different states have reached different results on very similar issues, and Maryland courts have issued very few decisions to guide you. A good First Amendment lawyer should be able to assess the hazards of your intended course of action and offer particularized suggestions to minimize the risk of liability for fraud, trespass, or invasion of privacy. You may well pay less asking for advice in advance than you might pay in settling a lawsuit. Develop a plan It is hard to deal with access problems in the middle of breaking news, so your news organization should set the groundwork for addressing such situations before they come up. Develop a strong working relationship with police and other officials on your beat. If law enforcement officials in Some Practical Newsgathering Tips Obtain consent


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