CAN WE TALK?
Getting Information from Sources
Who May Be Breaking the Law
If asked whether a reporter faces liability for asking a source to provide information that legally is secret, most media lawyers will answer: “No, it’s never illegal to ask questions. You may not bribe, coerce or hack … but just asking questions isn’t a violation of the law.”
Few things in the law are easy, though, so let me clarify. Take, for example, a potential grand juror willing to talk. Though you have no obligation not to ask, there are prohibitions on the grand juror speaking out. So that means you have no legal liability for asking questions of a grand juror, but you still should think about two things.
First, if a potential source asks if he or she could get in trouble for talking with you, you should never answer that question. You are not a lawyer; you cannot give legal advice. The State Bar frowns on that kind of thing. The best answer to a source asking that question is something along the lines of, “I can tell you why I think this is important information for the public to know, and I hope you’ll share with me what you know, but I can’t give you legal advice about anything, including whether you can talk with me.”
The second issue is this: Depending upon the facts of the case at issue and who has what at stake, you might find yourself on the receiving end of a subpoena if you publish information that legally you are not supposed to have. If so, your lawyer will look to the NC journalists privilege (G.S. § 8-53.11) to try to keep you off the witness stand. You have a qualified privilege in all of your journalistic work.
That privilege is conditioned in three ways, though. First, the privilege doesn’t apply at all if you are an eyewitness to a crime. A skillful lawyer might argue, for example, that if you received information from someone who broke the obligation to keep grand jury proceedings secret, you were an eyewitness to a crime of leaking information illegally. Second, a lawyer might argue that even if the privilege applies, it is overcome by proof that you are the only person who knows who “leaked” and that the leaker’s identity is critical to the outcome of a proceeding related to the leak. Finally, even if you have a privilege, you can waive it by talking. That’s why we always tell people that if they get a call from someone wanting information from you (as opposed giving information to you), that call should be referred to an editor, who then should call a lawyer.
So, all of this means that you should think carefully before asking a source to break the law by giving you secret information. Certainly there are times you will evaluate the risks and determine they are low. You may even decide that the story is important enough to proceed in face of high risk. But make those decisions with an awareness of the ramifications down the line and talk with editors about those decisions.
If you know someone else who might be interested, please pass this along so they can sign up by emailing First@smvt.com with “subscribe” in the subject line.