🇺🇸
Constitutional Law • First Amendment - Free Speech
CONLAW#140
Legal Definition
The government may not create liability for truthfully reporting information that was lawfully obtained from the government. Where the media broadcasts a tape of an illegally intercepted call, the media is not liable so long as they (1) did not participate in the illegality, and (2) it is a matter of public importance. The government may limit its dissemination of information to protect privacy, however, the press and public have a right to attend criminal trials and pre-trial proceedings.
Plain English Explanation
One of the most important parts of a healthy, functional democracy is a free press. Journalists help provide an additional check on the government by informing voters. A lot of journalism utilizes completely legal sources of information, like public records, official releases, legal proceedings, and observations made in public spaces. However, it is not uncommon for journalists to receive information from third-party sources that was never meant to be made public or available to the public. For example, in 2013, a former National Security Agency contractor named Edward Snowden leaked classified documents to various journalists that detailed an extensive global surveillance program between the United States and its allies that demonstrated various privacy concerns for the public. Those journalists then published the information and brought the discussion to the public. The journalists were not charged with any crimes, as they did not participate in the illegal act. However, Edward Snowden was charged with espionage and theft of government property, leading him to flee the United States and seek asylum in Russia, which was granted.
In other words, when it comes to these kinds of situations, the law is willing to let some information become public—even if it was illegally obtained—as long as the people who make it public did not participate in the illegal acts to obtain the information and the information is important enough that the public has a reasonable interest in it.
If you've studied the Criminal Procedure deck, you may notice that this is similar to how police may not violate the law to collect evidence against a suspect, but they are allowed to utilize evidence that was illegally collected so long as they didn't participate in the illegal act. For example, if a burglar discovers photos of child abuse in someone's home after breaking in to steal from them, then gives those photos over to the police, the burglar can still be charged for theft crimes but that doesn't meant the photos of child abuse cannot be used by police to investigate the homeowner and charge them for their own crimes.
In other words, when it comes to these kinds of situations, the law is willing to let some information become public—even if it was illegally obtained—as long as the people who make it public did not participate in the illegal acts to obtain the information and the information is important enough that the public has a reasonable interest in it.
If you've studied the Criminal Procedure deck, you may notice that this is similar to how police may not violate the law to collect evidence against a suspect, but they are allowed to utilize evidence that was illegally collected so long as they didn't participate in the illegal act. For example, if a burglar discovers photos of child abuse in someone's home after breaking in to steal from them, then gives those photos over to the police, the burglar can still be charged for theft crimes but that doesn't meant the photos of child abuse cannot be used by police to investigate the homeowner and charge them for their own crimes.
Hypothetical
Hypo 1: Bob, a government employee, leaks a classified document about unsafe practices at a nuclear facility to Sam, a journalist. Sam verifies the authenticity of the document and publishes an article exposing the safety violations. Bob did not have authorization to release the document. Result: While Bob may face legal consequences for leaking classified information, Sam is protected under the First Amendment for publishing truthfully reported information of significant public importance. Sam did not participate in the illegal obtaining of the document and his publication serves the public interest by exposing risks to public safety.
Hypo 2: Bob illegally hacks into a government official’s email and finds evidence of corruption. He gives this information to Sam, a reporter. Sam checks the information with other sources, confirms it's true, and writes an article about the corruption without disclosing his source or how the information was obtained. Result: Sam is protected for publishing the information because he did not participate in the hacking (illegal act) and the published material is a matter of public importance. Thus, his actions are covered under press protections for reporting critical information obtained from a third party.
Hypo 3: Sam, a journalist, overhears Bob talking about his plans to illegally record a conversation with a government official discussing classified projects. Sam encourages Bob to proceed and promises to publish any newsworthy content. Bob records the conversation and gives it to Sam, who then publishes an article based on the illegally recorded conversation. Result: In this scenario, Sam could face legal issues because he encouraged the illegal activity and collaborated with Bob in obtaining the information. This involvement in the illegality removes the protections normally afforded to journalists who passively receive information of public concern.
Hypo 4: Bob finds discarded government documents about troop movements in a public trash bin and passes them to Sam, who publishes an article detailing these movements, despite knowing the potential risks to national security. Result: Even though the documents were found in public and not stolen, publishing this information could be deemed irresponsible and potentially illegal if it threatens national security, thus not protected by the First Amendment. The public interest in knowing troop movements is outweighed by the potential harm their disclosure could cause.
Hypo 2: Bob illegally hacks into a government official’s email and finds evidence of corruption. He gives this information to Sam, a reporter. Sam checks the information with other sources, confirms it's true, and writes an article about the corruption without disclosing his source or how the information was obtained. Result: Sam is protected for publishing the information because he did not participate in the hacking (illegal act) and the published material is a matter of public importance. Thus, his actions are covered under press protections for reporting critical information obtained from a third party.
Hypo 3: Sam, a journalist, overhears Bob talking about his plans to illegally record a conversation with a government official discussing classified projects. Sam encourages Bob to proceed and promises to publish any newsworthy content. Bob records the conversation and gives it to Sam, who then publishes an article based on the illegally recorded conversation. Result: In this scenario, Sam could face legal issues because he encouraged the illegal activity and collaborated with Bob in obtaining the information. This involvement in the illegality removes the protections normally afforded to journalists who passively receive information of public concern.
Hypo 4: Bob finds discarded government documents about troop movements in a public trash bin and passes them to Sam, who publishes an article detailing these movements, despite knowing the potential risks to national security. Result: Even though the documents were found in public and not stolen, publishing this information could be deemed irresponsible and potentially illegal if it threatens national security, thus not protected by the First Amendment. The public interest in knowing troop movements is outweighed by the potential harm their disclosure could cause.
Visual Aids
Related Concepts
Are fighting words protected speech?
Are profane and indecent speech protected?
Can government speech be challenged?
How do you analyze a free speech issue?
Is anonymous speech protected?
Is discretion allowed in determining fees for public demonstrations?
Is speech protected when it incites illegal activity?
May the government seize assets of businesses that violate obscenity laws?
What are content-based restrictions, and which level of scrutiny is applied?
What are designated public forums?
What are limited public forums?
What are non-public forums?
What are prior restraints and when are they valid?
What are public forums?
What are the limits of free speech during a broadcast?
What does the 1st Amendment prohibit, and how is it applied?
What is the 1st Amendment right to access private property for speech?
What is the constitutionality of laws prohibiting group discrimination?
What level of scrutiny is applied to content-based restrictions on public forums?
What level of scrutiny is applied to court orders suppressing speech?
What level of scrutiny is applied to laws impacting freedom of association?
What level of scrutiny is applied to laws that require disclosure of group membership?
What rights do the press have in addition to those granted to private citizens?
When are obscenities and sexually oriented speech considered obscene?
When are time, place, and manner restrictions on speech valid?
When is a law unconstitutionally overbroad?
When is a law unconstitutionally vague?
When is commercial speech protected, and when is it not?
When is speech by government employees not protected?
When may a private figure recover for defamation if there is no matter of public concern?
When may a private figure recover for defamation regarding a matter of public concern?
When may a public official or figure recover for defamation?
When may the government ban child pornography?
When may the government burden lawful, non-misleading, non-fraudulent commercial speech?
When may the government punish private possession of obscene materials?
When may the government regulate symbolic speech?
When may the government require a license for speech?
When may the government use zoning ordinances to regulate adult businesses?
Which level of scrutiny is applied to content-neutral restrictions?
