David M. Snyder is a media lawyer admitted to practice in Florida and New York. He teaches communications law to journalism students at the St. Petersburg campus of the University of South Florida. He is a member of the Student Press Law Center’s Attorney Referral Network.
“The public has a right to every man’s evidence.”
The U.S. Supreme Court delivered that edict to three U.S. presidents.
Yet unlike politicians, ethical journalists recognize they want to report the story, not be the story. Those who volunteer or are forced to share notes, recordings, or testimony about their journalism work put themselves, not the facts, in the spotlight. That compromises their independence and credibility. And if the journalist relies on an unidentified source, they risk the dilemma of exposing the source or losing their own freedom.
How then can a student journalist protect her or himself from giving up their evidence: notes, recordings, or testimony about their newsgathering?
Even before you get a subpoena — an official legal demand for records or testimony — there are steps to reduce risks.
Be careful what information you provide a source
Before you get a subpoena, self-defense begins with the awareness that your reporting techniques can expose you to risk. An offer to trade information with a source implies that you possess valuable non-public information. A canny lawyer may want to get you under oath and probe for that information if she thinks it will help her client. And if you volunteer to testify on anyone’s behalf, an adverse party who sees your name on a witness list will surely want to know in advance what your testimony will be.
The better course is to inform yourself through publicly available sources and to stick to the facts when questioning a source. Never volunteer to help any side in a controversy.
Seek help when you receive a subpoena
If you do get a subpoena to provide records or testimony before or at a civil or criminal trial, administrative or legislative proceeding, do not panic. But do immediately seek help to avoid compromising your neutrality.
Consult the Student Press Law Center’s Legal Hotline and online resources for unique state rules that govern when a journalist must provide their records or testify. Some states offer broad protections for journalists. Other states’ rules are more equivocal, protecting journalists only when they meet narrow qualifications and are not eyewitnesses to crime. When protections are narrow or qualified, case-by-case analysis is essential.
Get guidance from your editor, publisher, or instructor. They could engage legal counsel on your behalf. SPLC may also help to connect you with a volunteer lawyer. When a trained and licensed legal advocate assists you, your advocate can evaluate your situation and engage with those seeking your records or testimony. Occasionally, those information seekers are engaging in a “fishing expedition” without a solid basis for asserting the journalist has necessary information. In those cases, the mere fact that you have a lawyer protecting your interests can deter further pursuit of your records or testimony.
More fraught are situations where journalists reveal that they have material, unpublished information or have relied on unidentified sources for critical information in their published report. A statute or the First Amendment may still protect a student journalist. In those cases, however, assistance of an experienced media lawyer is essential. The result will be driven by the unique facts of each case.