How Far Can a

Journalist
Go
COMMUNICATION LAW
Cassie Reverman
University of Indianapolis
 Journalists are the watchdogs of society and because of that, it is their duty to inform the

public on what is happening in the world around them. With the first amendment's protections,

freedom of press and etcetera, the government cannot censor certain topics. The topics that the

government can censor or protect, are now being challenged with the introduction of new technologies

such as social media and the Internet. This challenges journalists, as well as lawmakers, on how far a

journalist can go without bridging privacy rights and what the journalist newsgathering privileges

cover. Several cases have been studied to help determine what exactly qualifies as news gathering

privileges. Furthermore, when looking into the Terms of Services and privacy rights of different social

media platforms, it can help determine how a journalist can use that information

As stated above, journalist are defined as the watchdogs of society. By reporting and gathering

the news, they keep the public informed and the government in check. Journalist have also been

defined broadly by the model statute, as referring to anyone engaged in gathering news for public

presentation or dissemination by news media (Alexander 2002). With both definitions, this title

needs certain privileges protected. Due to the nature of their job, journalist need to be independent

and be trustworthy and dependable on by their sources. Laurence B. Alexander, author of Looking Out

for the Watchdogs: A Legislative Proposal to Journalist in the Greatest Need of Protection for Sources

and Information, wrote a Proposed Journalist Privilege Statute which helped clarify what a journalist

is, what is considered news media and what is considered news. It then goes into the Rules of

Privilege which are as stated:

No journalist shall be required to give testimony or other evidence in any proceeding

that would disclose information communicated to him, properly entrusted to him in his
 professional capacity, and necessary to enable him to discharge the functions of his

occupation.

Neither shall such person be required to testify concerning information he has

obtained that is not imparted in confidence, except in circumstances where the party

seeking the information shows by clear and convincing evidence that:

(1) there is probable cause to believe that the journalist has

information which is clearly relevant to a specific probable violation of law;

(2) the information sought cannot reasonably be obtained by

alternative means

(3) there is a compelling and overriding interest in the information.

No person who has been granted confidentiality by a journalist shall be

required to testify or give other evidence concerning the person's

identification. (p. 130)

Alexander also goes on to define who can claim journalistic privilege. It is important to define

who can claim it due to the nature of social media. Certain social medias, like blogs, could try and

claim newsgathering privileges. It excludes those who gather information for entertainment or non-

dissemination purposes, including hobby, recreation, sport, personal use, promotion or sale of a

product or service (Alexander 2002).

Patrick M. Gary presented another argument in opposition of the article. Gary wrote:
 The future definition of the pressshould embrace the

democratic-dialogue function instead of the watchdog function. Such a definition

should focus on the constitutional functions and role of the press in a democratic

society. In this way, the press would be defined by what it does, rather than by what it

is. (p. 105)

It goes onto explain how the definition of press in the 1600s and 1700s was anything considered a

printed piece of work. That not only included newspapers and magazines, but books and pamphlets too

(Alexander 2002). A=Along with that, Freedom of the press was generally thought of in terms of the

lone pamphleteer, not the large metropolitan daily newspapers (Alexander 2002).

According to Communication and the Law 2016 Edition edited by W. Wat Hopkins, privilege is

generally qualified by using the Branzburg test by, balancing the interests of those seeking the

names of confidential sources and journalist (p. 316). The Branzburg test emerged from the court

case Branzburg v. Hayes where three different journalists were brought to the U.S. Supreme Court. The

result of the case is important because it helped to clarify whether or not a journalist could

exclusively use the First Amendment as a meaning of defense before a grand jury.

This was and still remains, the only U.S. Supreme Court case where the court has considered

reporters privilege. Because of this ruling, there has still been an issue where journalists who want to

use the First Amendment as a right to not testify. Communication and the Law wrote, The supremacy

of the Constitution accounts to some extent for the continued insistence of journalists that their right

to refuse to comply with subpoenas is protected by the Constitution despite the holding in Branzburg.
 For the a reporter to claim reporters privilege and pass the Branzburg Test, it has to hit three

main points. The first one being that it shows probable cause to believe that the reporter had "clearly

relevant" information, the second is that the information could not be obtained elsewhere, and the

third is that the the government had a compelling and overriding interest in the information (Hopkins

315).

This dissatisfaction in the ruling has led to states creating their own shield laws; a law that

protects certain rights of journalists. Maryland was the first to pass such a law in 1896 and while

other states were slow to follow, after cases like Branzburg, thirty-six states and the District of

Columbia created their own (Hopkins 321). Indiana is one of the thirty-six states that have their own

shield laws and is setting the standard for the rest of the United States. Indianas shield law provides

an absolute privilege regarding state matters which means that the information is protected whether

published or not (Digital Media Law Project).

As in everything, there are advantages and disadvantages to states having their own shield

laws. Some advantages include that legislatures can define persons as long as they do not strip them

of their constitutional rights, legislatures can move more quickly and legislatures can amend shield

laws when new controversies or technologies arise (Hopkins 321). The disadvantages include that

courts tend to interpret the shield laws narrowly because of the need to be presented with all the

relevant information, along with the ability to mend laws quickly could work against journalist. This

privilege also generally gives way to conflicting constitutional rights instead of being balanced on a

case-by-case basis (Hopkins 322). Since there are state-to-state laws, they can vary widely but all

share three basic characteristics: Whom the laws protect, what the laws protect, and how the
protection is qualified (Hopkins 322). Further, because of the ever-changing acceptance of who is

considered a journalist if [the] courts and legislatures begin to give widespread acceptance to non-

traditional journalists, they risk doing great harm to the free flow of information undergirding the

concept of a journalists privilege (Alexander 131).

In addition to having general issues with newsgathering privileges, with the emergence of

social media and technology, privileges are being pushed to the limit. Many people, even ones

educated on the law, are unsure or unaware of the rules a privacy rights when it comes to posting

content online - whether that would be status updates, photographs, videos, etc. The question of why

this is important and how if affects journalist arises.

Knowing what social media posts you can and cannot use as a journalist is important because

social media is an easy way to find out break news and current trends. But, journalists need to know

what they are allowed to use. An example of when people do not know the Terms of Service for certain

social media can be found in an article published by Plagiarism Today. The article titled Does

Facebook Really Own Your Photos and it discussed an instance where a user of Facebook posts were

used without their permission. The user emailed Facebook and the response was:

...Once something is posted or uploaded onto Facebook it becomes Facebooks property. So if

the original photographer uploaded the photo first onto Facebook and then others have taken

it from there and uploaded it to their pages or profiles, this is legal and within policy, theres

nothing I can do about it unfortunately even if they are taking credit for the photos (p. 10).
While this an unfortunate situation for the user of the social media site, this is something that

journalist need to start taking into consideration. Many newsworthy events are first captured or

spoken about through social media sites, such as Facebook and its next biggest competitor, Twitter.

To try and help prevent these situations and to see whether or not a journalist is allowed to

used these posts, taking a closer look at the Terms of Service would be beneficial. One of the first

clauses stated in both Twitter and Facebooks Terms of Services, are their privacy policies. Each have

sub-links that go into further detail about other forms of their privacy, such as data policies. Facebook

and Twitter both state early on that once you accept their terms and services, depending on what you

select, they have the ability to collect and share the content and information posted.

In the Facebook Terms of Services, the second bullet point discussed is Sharing Your Content

and Information. It lists five important sub-bullet points that all journalist and everyday users should

know. About halfway through the first one it states, you grant us a non-exclusive, transferable, sub-

licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with

Facebook (IP License). This essentially means that if one were to post anything on Facebook, the

company has the right to use it and any other company associated with Facebook. Say ABC or CNN

were associated with Facebook, that would mean that if either of those news outlets saw a post they

believed was newsworthy, they have the right to use it. The fourth bullet point is also of importance

because it states, When you publish content or information using the Public setting, it means that

you are allowing everyone, including people off of Facebook, to access and use that information, and to

associate it with you (i.e., your name and profile picture). This ties in with the previous point because

only if the profile is public, can the newsource use it.

The last bullet point also goes on to say that they may use...feedback and suggestions without any

obligation to compensate you for them (just as you have no obligation to offer them.) In layman's

terms, if you post something that a news source that is partnered up with Facebook uses, you cannot

receive payment for their use of your postings.

When comparing Twitters Terms of Services to Facebook, there are some differences, but

there is one main similarity that all journalists need to be aware of. It has to do with how postings are

licensed. In Twitters Your Rights explains:

By submitting, posting or displaying Content on or through the Services, you grant us a

worldwide, non- exclusive, royalty-free license (with the right to sublicense) to use,

copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such

Content in any and all media or distribution methods (now known or later developed).

This license authorizes us to make your Content available to the rest of the world and

to let others do the same. You agree that this license includes the right for Twitter to

provide, promote, and improve the Services and to make Content submitted to or

through the Services available to other companies, organizations or individuals for the

syndication, broadcast, distribution, promotion or publication of such Content on other

media and services, subject to our terms and conditions for such Content use.

What Twitter is saying is that if you post something publicly and another company wants to use that

content, they have the right to use, post or share that content. In reading these policies one can see

that if a journalist were to use Twitter or Facebook as sources they would not be breaking privacy

rights.
 Facebook and Twitter are not the only two social media sites where news gatherers grab

sources. They look to other ones as well. These include sites like Reddit, Tumblr, Pinterest, etc. To

save time and redundancy, an interesting social media website to look at regarding public use is

Tumblr. Tumblr is a blogging website where users post and create original content in written or visual

forms. These users can also repost, or reblog, such content. Tumblrs Terms of Services reads much

like Facebook and Twitters, but because of the nature of the website, seems more complicated.

When someone posts something onto their Tumblr, they are giving their rights to their work to Tumblr,

just like the two previously mentioned social media websites. The only difference with Tumblr, in the

agreement is states that:

"...Creat[ing] derivative works" is not intended to give Tumblr a right to make

substantive editorial changes or derivations, but does, for example, enable reblogging,

which allows Tumblr Subscribers to redistribute Subscriber Content from one Tumblr

blog to another in a manner that allows them to add their own text or other Content

before or after your Subscriber Content.

While this may sound very similar to Facebook and Twitters policy, it is saying that it is not

necessarily allowed to change the original content, but can have additives formatted to it. For

journalists, this means that they can use the content, but should not alter it in any way and should

highlight any changes from the original content posted.

In conclusion, due to their duty to serve as the watchdogs of society and expectation to follow

the laws, journalists have certain limitations on what they can gather and use. Journalist are allowed

to claim certain privileges and protect their sources if deemed appropriate and in certain states have
specific shield laws that protect them; as shown through Branzburg vs. Hayes and the test that has

become of it. Journalist are also not breaking privacy rights when using certain social media posts.

Altogether, journalist have certain privileged rights that are protected and allowed them to serve as

the watchdogs of society.

 Bibliography

Alexander, L. B. (2002). Looking Out for the Watchdogs: A Legislative Proposal Limiting the

Newsgathering Privilege to Journalists in the Greatest Need of Protection for Sources and

Information. Yale Law & Policy Review, 20(1), 97-136. Retrieved from

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1429&context=ylpr

Branzburg v. Hayes, reporter's privilege & circuit courts. (2005, July 12). Retrieved

November 11, 2016, from http://www.firstamendmentcenter.org/branzburg-v-hayes-

reporters-privilege-circuit-courts

Digital Media Law Project. (n.d.). Retrieved December 06, 2016, from

http://www.dmlp.org/legal-guide/indiana/indiana-protections-sources-and-source-material

Does Facebook Really Own Your Photos? (2015, May 13). Retrieved December 06, 2016,

from https://www.plagiarismtoday.com/2015/05/13/does-facebook-really-own-your-photos/

Hopkins, W. W. (2016). Communication and the Law 2016 Edition. Northport, AL.

Kenworthy, B. (2011, March 8). State shield statutes & leading cases. Retrieved December

06, 2016, from http://www.firstamendmentcenter.org/shield-laws

Lee, D. E. (2006). Do Not Pass Go, Do Not Collect $200: The Reporter's Privilege Today.

University of Arkansas at Little Rock Law Review, 29(1), 77-101. Retrieved from

http://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1172&context=lawreview

Randall, J. (2003, May 3). Freeing Newsgathering from the Reporters Privilege. Yale Law

Journal, 7, 1827-1834. Retrieved October 28, 2016, from

http://www.yalelawjournal.org/comment/freeing-newsgathering-from-the-reporters-privilege
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from https://www.facebook.com/terms.php

Terms of Service. (2016, September 8). Retrieved December 6, 2016, from

https://www.tumblr.com/policy/en/terms-of-service

Twitter Terms of Service. (2016, September 30). Retrieved December 6, 2016, from

https://twitter.com/tos?lang=en