Pre-Publication Review

Through partnerships with the Fund for Investigative Journalism, the International Documentary Association and Freelance Investigative Reporters and Editors, Reporters Committee attorneys provide pre-publication legal review for investigative stories produced by journalists, including documentary filmmakers.

During this process, Reporters Committee attorneys work closely with journalists to vet stories before they are published or shown to audiences to reduce legal risk. This legal support helps give journalists, including documentarians, and news organizations confidence to pursue important investigative stories.

Over the years, our attorneys have reviewed dozens of investigative stories for a wide range of clients, including nonprofit newsrooms, freelance journalists and independent, investigative filmmakers. This page highlights some of the most recent projects our attorneys have provided pre-publication assistance for, and sheds light on the vetting process and additional assistance Reporters Committee attorneys provide to journalists.

Reporters Committee attorneys offer pre-publication services through our partnerships. We also refer calls to our free Legal Hotline seeking pre-publication assistance to ProJourn, a program operated by the Reporters Committee in partnership with Microsoft and Davis Wright Tremaine LLP. ProJourn brings together teams of seasoned media attorneys and corporate in-house counsel to provide local journalists and newsrooms free legal help with pre-publication review nationally and public records access in California, Georgia, New York, North Carolina, Texas and Washington.

Journalists can use our new Pre-Publication Review Guide to learn more about issues to consider before publishing a story.

If you are a journalist who needs assistance finding an attorney, you can contact the Reporters Committee’s Legal Hotline at www.rcfp.org/hotline.

Projects we’ve worked on:

• “And She Could Be Next” tells the story of women of color who are transforming politics from the ground up. The two-part docuseries — directed by Grace Lee and Marjan Safinia, produced by Lee, Safinia, and Jyoti Sarda and executive produced by Ava DuVernay — premiered on PBS and POV in June 2020. The documentary is now available on iTunes and Amazon.
• Freelance journalist Max Blau’s series published in the Macon Telegraph and Atlanta Magazine investigates how a controversial death row doctor built a business empire from treating Georgia inmates.
• In an investigation published by The Atlantic and InvestigateWest, Peter Fairley details how the Trump administration blocked a federal research lab’s plan to modernize the U.S. power grid, which would have reduced reliance on coal and helped slow climate change.

Q&A with Reporters Committee Staff Attorney Sarah Matthews

What kind of legal services do you provide to pre-publication clients?

We provide a host of legal services to journalists through our partnerships with FIJ, IDA, and Freelance Investigative Reporters and Editors. We vet their stories, whether it’s an investigative article, documentary film, or podcast. But we provide other legal services as well, including advising clients about issues related to source protection, newsgathering, court access, public records, and recording laws, among other things. We always tailor our advice to the client’s specific circumstances and the project at hand, but there are some generally applicable steps in the vetting process.

What are your first steps after receiving a story to review?

We review the story closely and identify statements that could give rise to a libel or privacy suit. In the libel context, we ask ourselves if a potential plaintiff could satisfy each element of a libel claim — is the statement a false, defamatory, statement of fact about an identifiable plaintiff, made with the requisite level of fault, causing injury to the plaintiff’s reputation? Then we consider how strong the sourcing is supporting the piece’s factual statements and whether the subject was given a chance to respond.

We also focus on other issues, like advising our clients regarding compliance with recording laws, which vary by state.

We also work with our clients to try to identify who would be the potential plaintiff or plaintiffs in a lawsuit arising out of the story. We may conduct research to determine whether those people or entities have filed defamation suits in the past and, if so, how frequently. That can help us assess the risk involved in publishing the story.

How does reviewing a documentary film differ from reviewing an article?

The same legal principles apply, but different issues often arise. For example, in the documentary film context, recording law questions can come up more often, particularly if a film was shot in an all-party consent state. Sometimes filmmakers capture audio inadvertently, and it’s not clear that all the subjects knew they were being recorded. I also focus on whether the b-roll used accurately reflects the voice-over; specifically, whether the use of certain images could imply something defamatory about the people depicted in the b-roll.

I also advise filmmakers not to edit scenes in a way that might imply something false and defamatory. For example, in 2016, Katie Couric made a documentary about gun violence called “Under the Gun.” She asked a group of gun rights activists, “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” The documentary, which the Reporters Committee was not involved in vetting, was edited to include nine seconds of silence. In reality Couric’s question prompted immediate responses from the activists. The activists sued for defamation, saying the documentary made it falsely appear that they had no answer to Couric’s question and were uninformed in their area of expertise. Although the trial court dismissed the case, and a federal court of appeals affirmed that decision, this led to protracted litigation that could have been avoided.

Lastly, if we’re working on a documentary film that will be aired on a broadcast station, the FCC has certain rules. For example, the “telephone broadcast rule” requires that a journalist inform all parties participating in a phone call that it will be broadcast prior to broadcasting or recording the call. This rule applies to radio stations as well.

Why is the vetting process important?

The vetting process enables investigative journalists, including documentarians, to tell important stories, by helping lower the legal risks associated with them. In addition, lawyers can help journalists during the newsgathering process by obtaining access to key documents, footage, and court filings that inform and bolster the reporting. Lawyers can also help journalists by advising on how to gather information safely and lawfully.