It is clear that journalists have no special privilege or license to break the law in their efforts to gather the news. It is, however, more complicated to determine when journalists can safely publish information that others illegally obtained.
Through various scenarios, this Q&A explores the Supreme Court’s framework set out in Bartnicki v. Vopper, as well as the conflicting lower-court decisions applying the framework.
Note that state laws differ about when information might be illegally obtained, and you can learn more about your state laws in the Reporter’s Recording Guide from the Reporters Committee for Freedom of the Press. This Q&A assumes the information in each scenario was illegally obtained.
For a more detailed legal analysis of Bartnicki and the publication of illegally obtained information, see this guide from the Reporters Committee.
Q: I’m writing a story about the misappropriation of school funds, and I have a contact who works at the university’s accounting office. Can I go with my contact to the accounting office and help secretly make copies of confidential financial records for use in my story?
A: No. Journalists cannot break the law to obtain newsworthy information nor can they actively aid others in doing so. In its 2001 Bartnicki v. Vopper decision, the Supreme Court said that the First Amendment does not “confer[] a license on either the reporter or his news sources to violate valid criminal law.”
Q: Someone anonymously gave me a recording of an unlawfully intercepted phone conversation between the principal and vice principal discussing disciplinary actions taken against a teacher accused of using drugs on the job. Can I use the recording’s contents in a news story?
A: Probably. This kind of situation — specifically, receiving illegal information and subsequently publishing it — qualifies for Bartnicki protection if (1) you played no part in the illegal acquisition; (2) you lawfully received the information, even though the information was obtained unlawfully; and (3) the subject matter is of public interest. Of course, before you publish, you’d also want to engage in further reporting to confirm the accuracy of the information and provide the relevant parties an opportunity to respond.
Q: Does having some information about how it was obtained nullify the first element of Barnticki protection? For example, a classmate says they have a recording of the principal and vice principal’s discussion. Hearing that, I stop them in the hallway and ask them to send the recording to me. Is that breaking the law, or just good reporting?
A: Generally, you won’t forfeit Bartnicki protection just because you know the identity of your source and have had some amount of contact with them. But how far that goes may depend on what courts have said where you live.
Some post-Bartnicki courts have said that even if you’re aware of the identity of the illegal source and know that the recording was made illegally, you’re still entitled to the same First Amendment free speech protections. These courts have said that if you’re requesting material through a common journalistic practice — like asking a source to send you something — it’s not important whether you knew that the material was stolen. As applied to this hypothetical, asking your classmate for the recording, in the majority of jurisdictions, doesn’t necessarily make you at fault for their actions.
Having said that, the U.S. Court of Appeals for the D.C. Circuit ruled the other way in Boehner v. McDermott, siding more with Justice Breyer’s more narrow reading of Bartnicki. The court denied protection to individuals who knew the information was acquired illegally or to publishers who had personal interactions with sources who provided illegally acquired information. What you should take away from this complication is that not all jurisdictions have ruled the same way, so it would be worth your time to do some research on how your jurisdiction has come out if you’re worried about this issue.
Despite the murky territory in post-Bartnicki caselaw, there are a few certainties to keep in mind as you’re evaluating whether you should publish content you’ve received. If (1) an illegal act may have occurred and (2) you acquired the information completely anonymously (such as an email from a completely unknown address or a letter under your door), then you’re protected under the First Amendment as long as the contents are a matter of public concern.[9] If you’re in the opposite situation — (1) you requested stolen materials and then (2) the illegal act occurred — you probably should not publish the materials. Depending on the facts of your situation, that could be considered before-the-fact participation in the illegal act, and if the court finds that you have conspired, you could be liable for the illegal interception as if you’ve committed the illegal act yourself.[10] Any active involvement in the illegal act negates your First Amendment defense.
You also may find yourself in a gray area in between those two situations — not breaking the law yourself to acquire information but not receiving it completely anonymously, either. Unfortunately, there’s no universal consensus in these borderline situations. Some courts, such as the 10th Circuit in Quigley v. Rosenthal, have said that if you know the information was illegally obtained, you lose Bartnicki protection. Other federal courts — including the Southern District of New York in Democratic National Committee v. Russian Federation and the District of Maryland in Allen v. Beiric — have said that they don’t care if journalists solicit stolen documents, because requesting documents is a common journalistic practice. These more permissive courts have said that as long as the coordination or payment for illegal materials occurred after the information was stolen, publishers are protected by the First Amendment.
Courts are still evaluating how to handle Bartnicki cases, and some of the rulings reach opposite outcomes on similar facts. If the facts of your case fall in the “gray” area where the outcome could differ based on the court, contact the Student Press Law Center’s Legal Hotline for help.
Q: I anonymously received a screenshot of text messages between two classmates talking about a house party they attended. It might be helpful to include the quote in my article about the “party culture” at my school. Can I publish the quote without the students’ consent?
A: Based on these facts, probably not. The third requirement for Bartnicki protection is that the information has to address a matter of public concern. That includes material about public figures — like your school board elected representative or your principal — generally talking about things related to their job. This also often extends to news about celebrities, professional athletes or anyone who has subjected themselves to life in the public sphere. Courts have generally treated “public concern,” “public interest” and “newsworthiness” as synonymous concepts.
If you’re wondering if you should publish, ask yourself a few questions. For example, if you shared the information with a megaphone in the middle of a public park, would the strangers around you genuinely care about what you were saying because it was relevant to their lives? If the answer is yes, then you likely meet the first requirement of whether you can publish it, even if it’s intercepted from a private conversation. While there may be rare exceptions with different facts, a text conversation between two ordinary classmates about a private party they attended would be unlikely to meet that test.
Second, does the conversation have a threat of violence? If the text message that you’ve received anonymously has a credible threat of violence or illegal conduct against the public, a specific group or an individual — such as a threat against the school or against a classmate — you likely qualify for Bartnicki protection. A threat of violence is not mandatory for Bartnicki protection, but it is very helpful to establish the importance of the publication of the issue.
If the matter discussed is of purely private concern — like a text between classmates about how much fun they had partying, or a text between a classmate and their parent asking about the party, or a private email related to a dispute between neighbors, it is likely best not to include those quotes in your article.
Q: Is all truthful information unlawfully obtained fair game for publication as long as I did not participate in or encourage the unlawful acquisition?
A: No. Truthful information unlawfully obtained that is not of public concern — or newsworthy — falls outside of First Amendment protection and could subject both the person who gathered the information and the publisher to an invasion of privacy claim. For example, in 2016, the jury in the Hulk Hogan trial decided against Gawker’s publication of factually true information on the basis that it was not newsworthy.
Q: What can I do if the school administration attempts to prevent me from publishing newsworthy information obtained unlawfully by a third party?
A: The administration’s prohibition against the publication of newsworthy information obtained unlawfully by a third party is a form of censorship and should not be tolerated. Contact the Student Press Law Center’s Legal Hotline for help.