At a time when President Donald Trump’s administration has accelerated attacks on the press, accessing information and protecting sources might become more difficult for journalists, experts say.
Concerns about libel law and the protections from landmark Supreme Court case New York Times Co. v Sullivan have been exaggerated, said New York Times deputy general counsel David McCraw and Center for Investigative Reporting general counsel Victoria Baranetsky. Instead, they advised journalists to take measures to secure their reporting material and be cognizant of the pressures they face in the current political climate. Their remarks came Monday during a Poynter webinar called “Safeguarding your journalism against legal threats.”
“I actually think that the law has been and will continue to be resilient,” McCraw said. “I think where you’ll really see the pressure ground level for journalists is on access and on the protection of sources.”
Trump has already taken measures to curtail press access. His administration has laid off communications staff, reallocated dedicated office space in the Pentagon to conservative outlets, taken over the White House press pool and defunded global radio stations. Most notably, his administration has banned The Associated Press from accessing key White House spaces like the Oval Office. Members of his administration have also threatened to investigate leaks.
Newsrooms may see more subpoenas seeking their communications and reporting material, McCraw warned. To that end, journalists should be cognizant of the documentation that they generate and keep. An unflattering private message to a colleague, for example, could be unearthed in court — as was the case earlier this year when a jury found CNN guilty of defaming a security contractor.
“Your sources are at less risk when there is no record potentially of what they’ve said,” Baranetsky said. “On the other hand, obviously you need some proof at the same time. So there’s a balancing act there.”
One area of vulnerability is third-party providers that journalists might use during their reporting. That includes communications platforms like Gmail and Slack, as well as transcription services like Otter. Newsrooms should understand those platforms’ document retention policies and how they would respond to a subpoena. Newsrooms can try to negotiate with these third-party providers to get assurances on these issues, Baranetsky said.
Another major vulnerability is at the border, McCraw said. “The law that protects you elsewhere may not be protecting you at the border.” Customs and Border Protection agents have the authority to search electronic devices, so journalists may decide to take measures like turning off their phone when crossing the border or ensuring that the laptop they carry is “clean.”
Journalists should also be wary about what they promise their sources, Baranetsky said. Sources may have different understandings of what it means to be portrayed as anonymous in a story. Journalists can also point sources to legal resources like the Government Accountability Project instead of promising legal protection.
“Coach your reporters to have healthy relationships with your sources … to double-check questions around anonymity and what protections they want,” Baranetsky advised.
When it comes to avoiding libel lawsuits, one potential area of protection is fair report privilege. The extent of that privilege varies by state, but states that have it generally allow journalists to avoid being held liable for defamation when they report on official public documents like lawsuits.
“Relying on documents is really useful in this administration,” Baranetsky said. “It’s very hard to bring a case when you say, ‘This is what’s on the piece of paper, and I’m just reporting that.’”
Both Baranetsky and McCraw agreed that it was unlikely that New York Times Co. v Sullivan, which sets a high bar for news organizations to be found liable for defaming a public figure, would be overturned. McCraw pointed out that the Supreme Court has had at least 12 opportunities in the last five years to reevaluate the ruling, and the justices have declined to do so every time.
If there are changes “at the margins,” McCraw said, they may involve trying to narrowly define who qualifies as a “public figure.” Hostile courts may also provide narrower readings of whether the potentially libelous statement in question is a fact or an opinion. (One cannot be held liable for defamation for an opinion.)
Ultimately, McCraw and Baranetsky urged journalists to continue their work, speak up in defense of press freedom and avoid self-censoring out of fear.
“Since 1964, the law in this country as enunciated by the Supreme Court has really been a message to journalists to take chances, to be aggressive, to hold power accountable,” McCraw said. “And if your lawyers are causing you to be scared, they are betraying that legacy.”
