To publish or not to publish?

Frequently asked questions about publishing materials that may have been unlawfully obtained by others.

Q: I'm writing a story about misappropriation of school funds and I have a contact who works at the university's accounting office. Can I go with my contact to the accounting office and help secretly make copies of confidential financial records for use in my story?

A: No. Journalists cannot break the law to obtain newsworthy information nor can they actively aid others in doing so. However, if you are given the confidential financial records without assisting in their unlawful acquisition, then they can be used. (Note: Requesting or encouraging the receipt of unlawful information was not expressly discussed in the Supreme Court's 2001 Bartnicki v. Vopper decision; however, doing so may raise ethical concerns).

Q: I found on my desk a tape of an unlawfully intercepted cordless phone conversation between the principal and vice principal discussing disciplinary actions taken against a teacher accused of using drugs on the job. Can I convert the contents of the tape into a news story?

A: Probably. This situation is similar to the facts in Bartnicki v. Vopper. However, before using any information unlawfully obtained make sure that: 1) you played no part in the illegal acquisition; 2) you lawfully received the information even though the information was obtained unlawfully; and 3) the subject matter is truthful and of public interest.

Q: Is all truthful information unlawfully obtained fair game for publication as long as I did not participate or encourage the unlawful acquisition?

A: No. Truthful information unlawfully obtained that is not of public concern -- or newsworthy -- falls outside of First Amendment protection and could subject both the person who gathered the information and the publisher of the information to an invasion of privacy claim. Among the factors to consider when trying to determine whether a story is newsworthy are: 1) the social value of the facts published; 2) the depth of the article's intrusion in ostensibly private affairs; and 3) the extent to which the party voluntarily acceded to a position of public notoriety.

Q: When might the First Amendment not protect the publication of newsworthy information unlawfully obtained by a news source?

A: Some members of the Court suggested in Bartnicki v. Vopper that First Amendment protection would not be afforded to the publication of truthful information obtained by a "pervasive" invasion of privacy from a third party. Determining what is pervasive is still unclear as the Court has not established a concrete rule. However, the Court uses as an example the interception of an encrypted cellular phone conversation. Where you know that a third party engaged in "shocking" conduct or used extraordinarily sophisticated and intrusive high-tech equipment to obtain information reasonably believed to be sensitive and secure, a future court might not be willing to look the other way.

Q: What if I don't know if the information has been unlawfully obtained?

A: In this instance, what you don't know won't hurt you. The crux of the argument in Bartnicki v. Vopper was that the journalist disclosed information that he knew a third party unlawfully obtained.

Q: What can I do if the school administration attempts to prevent me from publishing newsworthy information obtained unlawfully by a third party?

A: The administration's prohibition against the publication of newsworthy information obtained unlawfully by a third party is a form of censorship. Contact the Student Press Law Center for help or visit or Web site for more information.