Do journalistic purposes exempt journalists from criminal laws?

|The Volokh Conspiracy |

Do journalistic purposes exempt you from a criminal law? The short answer is "no." The long answer is "mostly no," but it's more complicated. (While this post was prompted by the criminal charges against the makers of the Planned Parenthood videos, it is largely independent of that controversy; and, of course, those defendants, like other defendants, might well have defenses unrelated to their journalistic purposes. For just one example of another case raising this question, see the Lawrence Charles Matthews child pornography case.)

1. Generally speaking, journalists have to follow the law in investigating their stories. If the law bans using false documents or offering to buy fetal tissue or recording conversations without all parties' consent, journalists are bound by that no less than anyone else. See, e.g., Cohen v. Cowles Media (1991).

2. Of course, if the law targets speech based on its content, either on its face or as applied, all speakers, journalists or otherwise, can have a good First Amendment defense. For instance, if someone claims that he was emotionally distressed by the contents of an accurate article about him, the author of the article would likely have a First Amendment defense (at least if the article is on a matter of public concern). But that's true whether or not the author is a journalist (or some other news-gatherer). See, e.g., Snyder v. Phelps (2011). The First Amendment right involved in the case is the right to be free from liability based on the content of one's speech—it's not a right to violate content-neutral laws in gathering information.

3. Some statutes give special exemptions to journalists or other news-gatherers—many statutory journalist's privileges, which exempt journalists from having to testify in some cases, are an example. But such statutes are rare.

4. A few states—Hawaii, Maine, New Jersey and Pennsylvania—have general statutes that allow judges to dismiss charges in cases involving "de minimis" harm. Here, for instance, is the Maine statute:

The court may dismiss a prosecution if, … having regard to the nature of the conduct alleged and the nature of the attendant circumstances, it finds the defendant's conduct:

A. Was within a customary license or tolerance, which was not expressly refused by the person whose interest was infringed and which is not inconsistent with the purpose of the law defining the crime; or

B. Did not actually cause or threaten the harm sought to be prevented by the law defining the crime or did so only to an extent too trivial to warrant the condemnation of conviction; or

C. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in defining the crime.

These statutes aren't limited to journalists, but they can apply to them in some cases. For instance, if a journalist offers to buy fetal tissue in the course of trying to catch a prospective seller in the act, it may well be that the offer does "not actually cause or threaten the harm" aimed at by the law that bans such offers. More controversially, one can argue that "customary license or tolerance" should include the customary license or tolerance for journalistic investigations (though it may be hard to identify the precise custom there). And one can argue that journalistic investigation is the sort of "extenuation" that the legislators didn't envision. (The case law on these provisions is relatively sparse, and I know of no cases exploring their scope with regard to journalism.)

Such a defense, though, would be quite limited. First, these "de minimis" provisions leave the judge discretion to dismiss charges; they don't require such dismissal (except for the Pennsylvania statute). Second, the provisions don't apply when the journalist's conduct, even though valuable, does indeed cause the harm contemplated by the law that the defendant violated (as would be true for many laws that aim at protecting privacy, preventing trespass, preventing false statements and so on). And, third, only a few states have such provisions.

5. Many states recognize a "choice of evils" or "necessity" defense; here is Texas's:

Conduct is justified if:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

This is what you can use if you're prosecuted for speeding when you're driving a badly injured friend to the hospital (and you didn't have time to call for an ambulance). You might even be able to use it if you take someone else's car for such a purpose. But this requires a risk of imminent harm—journalists' desire to expose the targets of their investigation, and thus prevent the targets from doing bad things in the future, doesn't qualify.

6. Finally, note that all this applies only to decisions by judges or juries about whether the defendant is guilty. In sentencing, the judge—or, in some states (including Texas), the jury—can consider many factors about the crime, including the defendant's motives and the degree to which the defendant's conduct was actually or potentially harmful. And, of course, prosecutors can also use their discretion not to prosecute journalists in some situations.