When confronted with this situation what should reporters do? The short answer, don’t turn over anything voluntarily.
We contacted First Amendment lawyers Charles D. Tobin of Ballard Spahr, a member of the Institute’s Board of Directors, and Sarah Matthews of the Reporters Committee for Freedom of the Press for advice on how news organizations should proceed when they receive such a request or subpoena.
Some of their guidance:
- Have a newsroom policy that defines what circumstances warrant cooperation or no cooperation.
- Develop a policy regarding when and how long you keep unpublished footage.
- Upon receiving such a request or subpoena, contact your news organization’s lawyer before making any decisions.
- Subpoenas and requests do not differentiate between images captured with professional cameras and images captured by handheld devices.
- Courts usually, but not always, quash such police subpoenas.
News organizations should be aware of the applicable law in their states. Virtually every state has media shield laws that offer journalists absolute or qualified protections against the disclosure of sources or information obtained while gathering news.
These are Tobin’s and Matthews’ responses to our emailed questions.
After events like these protests, when police begin to investigate, what is their most common request to news organizations?
Matthews: We have seen some reports that police departments are requesting photos and video footage from protests.
Tobin: Police agencies and the FBI have asked newsrooms in a number of cities for their raw video from coverage of the protest. The requests have typically targeted specific hours of the night and early morning, and in some cases, specific locations.
Does it usually begin with a request and then escalate to subpoena, or do many law enforcement agencies immediately seek subpoenas?
Tobin: Our clients have had a mixture from law enforcement making requests by phone or email or by subpoena.
Matthews: We have seen both. Sometimes prosecutors immediately issue subpoenas for the testimony, footage, or other materials they want. Other times, they ask news outlets to voluntarily hand over the information or materials. Then, if the news outlet refuses to comply, the prosecutor may decide to issue a subpoena, but not always. If a news outlet pushes back and points out that it does not have to comply under the applicable shield law, the prosecutor is less likely to pursue the matter.
Are videos or images that were published or aired protected from such requests?
Matthews: This depends on the state you are in. (See RCFP guidance here). In any event, even if your state’s law does not protect published materials, news outlets can still push back on these subpoenas by arguing that the prosecutor can readily obtain the materials sought, and it’s unduly burdensome and unreasonable for the news outlet to have to produce them.
Tobin: Shield laws in the United States vary from state to state, and in federal courts, from circuit to circuit. For the very most part, broadcast outtakes and unpublished photos are protected by these laws by a rigorous test that law enforcement has to satisfy in order to enforce a subpoena.
With so many online and print journalists using their smartphones to record activity at protests, are they likely targets of these requests as well?
Tobin: Yes, subpoenas and requests do not differentiate between images captured with professional cameras and images captured by handheld devices. Law enforcement is typically asking for “all” images that the journalists in a newsroom have captured.
In states with media shield laws, how are these requests typically resolved?
Matthews: In states with shield laws, journalists typically are not compelled to disclose their sources or work product. Journalists typically reject “requests” for their materials or sources, and if they are subpoenaed, the courts usually—but not always—quash those requests. Occasionally, courts find that there is a compelling need for the subpoenaed information that overcomes the shield law’s protections—for example, where the subpoena does not seek confidential sources and the information is critical to a criminal defendant’s case.
Tobin: In most instances, newsrooms will resist subpoenas in court. Courts in decades past had been extremely forceful in applying shield laws. Generally speaking, however, in the past decade or so we have seen more courts willing to enforce subpoenas against journalists. Fortunately the newsrooms have not lost their resolve and continue to consistently challenge subpoenas.
In states without media shield laws or with weaker shield laws, what recourse do news organizations have?
Tobin: Every state except Wyoming, and every federal circuit, has some protection against subpoenas to journalists. Newsrooms always have recourse to the courts, and under the right circumstances, they will prevail.
Matthews: Even where a shield law is not available, several state and federal appellate courts have still recognized some protection for journalists’ sources and work product grounded in the First Amendment or common law (or, for state courts, the state constitution). Even in the rare case where no such legal protections exist, news organizations can still argue that the subpoenas are overly broad and burdensome and get the subpoena quashed that way.
How do such requests affect images or videos that journalists share on social media? If they share a clip of a longer video, is the rest of the video protected?
Matthews: Even if you’re in a jurisdiction that only protects unpublished footage, if you post a short clip on social media, the remaining unpublished footage of the longer clip should not lose its protection.
Tobin: Some newsrooms have chosen to put all that they capture online, so that there is nothing unpublished left to subpoena.
Can journalists themselves be called as witnesses in investigations about criminal activity during or after protests?
Matthews: Yes. We saw a wave of subpoenas like this in the late 1960’s, which led to the founding of the Reporters Committee in 1970. Many states passed shield laws to protect journalists from having to testify before grand juries. Read more here.
Tobin: Subpoenas in the criminal courts, for events a journalist eyewitnesses, are still subject to challenge.
In cases when journalists have been arrested, does law enforcement have a right to download video from an arrested cameraman’s camera or from a photojournalist’s camera?
Matthews: No. In Riley v. California, the Supreme Court held that when police arrest a person, they must generally obtain a warrant before searching the contents of a person’s cell phone under the Fourth Amendment. The Court’s reasoning may also apply to other equipment, like a camera, but the case law is still developing in this area. Reporters also have additional protections preventing this type of search or seizure under state shield laws, the Privacy Protection Act, and the First and Fourteenth Amendment. Read more here.
Tobin: No. That would be a violation of their rights under shield laws, their freedom of the press under the First Amendment, and their rights against unlawful search and seizure under the Fourth Amendment, and their rights to due process under the Fourteenth Amendment. When law enforcement accesses a journalist’s data without a warrant, or with a groundless warrant, that is a grave constitutional incursion.
Can journalists avoid these requests by simply destroying raw video or images after clips of that video has aired or a selected image has been published?
Matthews: Yes, but that comes with risks. Journalists should think carefully about whether they may later want that footage. Journalists should be particularly wary of destroying any footage or notes that might help them later defend a libel suit, should they be sued. You should consult with an attorney to discuss specific circumstances.
Tobin: Journalists are free to delete information at their discretion, but I would advise a journalist not to do that if law enforcement has subpoenaed that information.
What is the consequence for news gathering if law enforcement were allowed to obtain raw, unaired or unpublished video and images or if news organizations simply turned that content over to law enforcement voluntarily?
Matthews: There are several risks. Among other things, by handing over their work product to law enforcement, news outlets run the risk of being viewed as an arm of the government. This can undermine their credibility as independent news organizations with the communities they serve and make it less likely sources will come to them in the future.
In addition, this could also increase attacks by protesters against news outlets who film them, if the protesters think the outlets will hand over footage of them to the government who will use it to prosecute them. Providing footage to law enforcement could also set a dangerous precedent where law enforcement comes to expect and then demand information from the news media in the future.
Tobin: Newsrooms need to make policy decisions about what circumstances warrant some cooperation or no cooperation. Most newsrooms are concerned that providing law enforcement with news that journalists have gathered will encourage even more subpoenas.
Are there instances where providing that content is warranted?
Tobin: I have helped newsrooms report a credible threat to human life or safety to the authorities, for example, a caller who says they have planted a bomb.
Matthews: In some circumstances, we see “friendly subpoenas” where the journalist wants to turn over the requested materials. For example, journalists sometimes have critical information or footage that do not implicate their sources, and they want to give this information to law enforcement to help solve a case. We’ve also seen cases where a prosecutor asked a journalist to provide testimony or materials to help prosecute a crime in which that journalist was the victim, and the journalist wanted to help. What to do in these circumstances is ultimately a judgment call for the journalist.
What can news organizations do proactively in anticipation of these requests from law enforcement?
Tobin: Report requests from law enforcement to management in the newsroom immediately. And managers should have their lawyer’s number handy.
Matthews: Assess the risks with the help of an attorney and develop a policy regarding when and how long you keep unpublished footage. Contact the Reporters Committee’s hotline; if you need help finding an attorney, click here.
Be sensitive to any footage or work product you have that implicates confidential sources and take precautions to maintain the confidentiality of those sources, so the government cannot later argue that you waived any privilege you had for these materials.
Familiarize yourself with your state’s protections for journalists’ sources and work product.
If you receive a subpoena and need legal help, contact the Reporters Committee’s legal hotline.