Navigating legal challenges: Essential advice for student journalists covering immigration

Mike Hiestand, senior legal counsel from the Student Press Law Center, talks with Diana Day from the Scholastic Press Rights Committee about what young journalists need to know about their legal rights and responsibilities when covering immigration topics.

Scholastic journalists across the country are grappling with a number of ethical and logistical challenges when reporting complicated immigration topics. Diana Day from the JEA Scholastic Press Rights Committee interviewed Mike Hiestand, Senior Legal Counsel from the Scholastic Press Law Center, about protections, procedures, and best practices for student reporters.

Diana Day/SPRC: What has changed for school journalists in terms of best practices for reporting on immigration? Has anything changed recently with some of the actions that Trump’s administration has been taking?

Mike Hiestand/SPLC: I think the ante has been upped, you know, just the urgency of some of the things we have always talked about in terms of promising sources confidentiality and some of the issues that are coming up.  I think everybody understands that we are in this new moment where the stakes have risen. I think that’s the main change. 

“I think everybody understands that we are in this new moment where the stakes have risen.”

DD: Talk to us a little bit about shield laws, what they are and if they cover students at the state level. And, do they cover scholastic journalists at the federal level if it’s a federal agency like ICE, for example, that would come issuing a subpoena?

MH: One of the biggest issues that we’re seeing right now is this desire [from student reporters] to talk with students who themselves may be impacted, or their families may be impacted, but [it’s important to realize] that when students talk in an open setting like that, that they may put themselves at risk. So promising sources confidentiality is an issue that’s really risen to the surface, and anytime you’re talking about promising a source confidentiality, your next question should be, “What sort of protections do I have?”

Almost every state in the country has a shield law on the books. Shield laws are basically laws that are specifically enacted to protect the right of journalists to keep their sources, or sometimes their information, secret. Most of the shield laws are not absolute shield laws. There are certain circumstances, certain cases, where you would be able to argue that the shield would not be optimal, but in general, they do provide some really significant protection to reporters. 

As you mention, though, these laws have only been enacted at the state level; there is no federal shield law, and so because ICE is a federal agency, and the questions — the immigration questions that would arise — are mostly federal questions. I mean there may be a few cases where these situations might be handled in a state court, but by and large they will be handled in the federal court, and that’s when you would need to call upon a federal shield law, but it doesn’t exist. So in addition to shield law, there are statutes that are enacted. There’s also an argument to be made that the First Amendment itself provides some protection to reporters. At the federal level because there’s no shield law, you typically are looking to know what sort of protections particular courts have recognized in terms of First Amendment protection for journalists. That is going to vary, depending on the part of the country that you’re in and the federal circuit that you’re in. Some circuits have been fairly protective. They’ve recognized that the First Amendment provides some fairly robust protections to reporters. Other circuits have not found that to be the case, so you know that the amount of protection that’s gonna be available in terms of shield law or First Amendment based protection is really going to depend on where you are in the country. 

If you’re in a part of the country where your courts have recognized a robust First Amendment protection, there is a pretty good shot that you would be protected as a student journalist and not having to divulge that information.

DD: And how can advisers and staff find out which federal circuit they’re in? 

MH: So there is a wonderful resource that is put out by the Reporters Committee for Freedom of the Press and it’s rcfp.org and it is the Reporter’s Privilege Compendium.  It is a compendium of reporters’ privilege laws throughout the states. You can go to their website, and it’s under their legal resources there (Resources > Legal Guides and Resources > Legal Guides > View All Legal Guides). 

The first thing you have to do is figure out what circuit you are in. We’ve actually had one of our interns, our legal interns, do some research on this because it is such a big issue all of a sudden, and she found out that the First, Second, Third, Fourth, Fifth, Sixth, Ninth, Eleventh and the D.C. circuits have recognized some sort of privilege. The Seventh and the Eighth circuits —  the Seventh Circuit covers some of the Midwest states, and the Eighth states are a little bit further west, I believe — they have not recognized this privilege. The reporters committee guide would kind of detail a lot of that stuff. 

DD: To what extent can reporters rely on any of these protections?

MH: Even before you start looking at legal protections you might have, it’s really important to recognize these protections are not ironclad; there’s always going to be some risk to a reporter, and the protections won’t apply in a particular case. We are just telling students, as we’ve always told students, and journalists in general, that you need to be really, really careful when you make these promises; these promises are not something that should be handed out without significant thought being put into it because the promise is — for both ethical and legal reasons — a promise that if you make it to a source, particularly in case like this, where the stakes are so high, you have to be prepared to keep it. And no matter what, we have seen journalists go to jail over the years because of the sacredness of protecting your confidential sources when those promises are made.

“These promises are not something that should be handed out without significant thought being put into it because the promise is — for both ethical and legal reasons — a promise that if you make it to a source, particularly in case like this, where the stakes are so high, you have to be prepared to keep it.”

DD: So what would you advise a staffer who is doing an interview about some of these topics and perhaps didn’t anticipate that the conversation was going to be anonymous? I mean should they stop the conversation with the source right at that point and then go to their Editor-in-Chief and discuss further? Or should they complete the interview?  What’s the in-the-moment best practice for a journalist who has suddenly found themselves in a position where they’re not sure what to do in terms of making a promise, but they don’t feel confident yet to make that promise to a source?

MH: As student media we need to understand that if you’re going to be talking to an undocumented student or a student who has undocumented family members or relatives, you have to understand that you are in this space. It’s just important that we recognize that you need to be thinking about the confidentiality issues before you start the interview. But if you’re in it, I mean, it’s really important that you be very clear with your source about what it is you’re doing and what sort of agreement that you have with them. 

There is no standard, you know, “This is off the record” or, “This is deep background.” None of those terms really have clear legal definitions, so it’s really important that any agreement between a reporter and their source be clarified up front. So if you are talking to a source and the understanding is that you will keep their names out of it, you need to affirm that with the source and say, “I am promising you that I will not divulge your name here, no matter what.” Or maybe there is something beyond “no matter what” that the source would agree to. If the reporter is sued, perhaps the source would be willing to come forward or something like that. Whatever the agreement is, it just needs to be spelled out and understood very clearly between both sides. You know if there is some sort of misunderstanding, or the reporter is kind of caught off guard, I think probably the interview should stop until these issues are clarified.

DD: If a reporter does promise confidentiality to a source, who on the staff should know? It’s my instinct as an adviser that I’m not on their staff. I am their adviser, so I, as the adviser, shouldn’t know the identity of the anonymous sources. Is that correct? 

MH: That is absolutely correct. It’s critical that the number of people that know be as small as possible, so it’s typically going to be the reporter, obviously, who would know, and maybe an editor. And sometimes even editors don’t know, but that circle needs to be kept as small as possible. Absolutely, the adviser, who is an employee of the school district, and who is in a much different legal position than the students, who are not employees or agents of the school district, advisers have to be kept out of that circle. It’s one of those situations where ignorance really is bliss and ignorance is safe, because as an advisor if you know the identity of the source, you are just put in an impossible situation. If the principal or some other school official comes and demands to know the identity, if they are ordering you to do something as an employee, typically you need to follow that order or risk insubordination charges. But your student media program has promised the source confidentiality, and again, that’s a sacred promise, so it’s an impossible situation. The only way to avoid it is just to stay out of it. Advisors have to stay out of the loop. 

DD: And therein lies one of the most interesting and dynamic tensions about being a student media advisor. We’re obviously treating [the students] as —  and they are —  real journalists, but as their teachers we are also teaching them, and we are their protectors to a certain extent. This is where I get nervous sometimes —  and I do think it’s obviously the right thing to not know the name of the source —  but then I feel like at the same time I’m letting down the protection part of the job. I understand that I’m helping protect the source by not being a potential leak, like you just said, or being in a position where I’d have to reveal the name of the source, but am I adequately protecting my student? 

MH: It’s another reason that being a media advisor is the toughest toughest job at school. I mean, it really is. You’re absolutely right, and I think your instincts are the same as all the other advisers I talk to —  you want to protect your students. But I think in this instance a real part of protecting your students is being able to protect promises that they’ve made to their sources and not putting them in a situation in which they are violating one of those promises. There’s not an easy answer here, but I think there is probably a best answer, or a safest answer.

Some advisers in the country who work in wonderful schools where the principal or other school officials are very supportive of student media, I suppose you could have some sort of conversation with them as the adviser and just say, “I would like to be able to advise my students fully, but we have this situation. Can I get an assurance from you that you wouldn’t press me on this?” I suppose if you could do something like that, you might find a work around, but I think those situations are probably in the minority.

DD: That brings us to best practices in terms of security with documents and online tools, like transcription tools like Otter or even the iPhone app that we’re using to record this particular call. What’s the best practice for our student reporters in terms of being able to promise the best level of security to vulnerable sources? 

MH: I think that we all have to think about what sort of access do you have as an employee? Again for the same reasons, we want to keep you out of loop in having your reporters tell you who these sources are; you don’t want the reporters putting into writing on any sort of school resource that you, again, as an employee might have access to and be put in this awful position of being told you need to get into that file or you need to get into that server. Anything that you have access to is someplace that that confidential information should not be appearing, so unfortunately that usually means that students do need to use their own [communication tools and digital storage spaces], and we’re talking specifically about these confidential reporting situations. That’s where they need to use their own equipment, they need to do the interview probably off campus or in someplace that is secure. It’s not necessarily the case that having a reporter store this information on their personal computer is going to keep it safe no matter what, but it does add that extra level of hurdles that would make it much tougher for school officials and you to have access to it.

DD: And that brings me back to the same thought as before — are we just relinquishing our responsibility as advisors and sort of letting our students be out there with their personal accounts? And then, here comes the federal government asking for access to their personal accounts? It feels so scary. 

MH: It is scary, and it’s part of a conversation that needs to be had at the very beginning. Are these the sorts of stories that we feel comfortable, as student media, covering? And [they are] student journalists. This is not a full-time job. [They] have a lot of other things going on. Sometimes the responsible thing to say is we’re just not gonna cover the story because we don’t feel comfortable. But I think those are all discussions that need to be had before you even engage in this sort of coverage. 

DD: Yes, definitely. And it’s hard because I think the students see what’s going on, and they want to be courageous, but it’s like you said — it’s important to get these things established up front.

MH: If there is any good news here — and there is good news — I mean, you’re right.  We need student journalists to be courageous at this time. They have a unique perspective that nobody else has when it comes to the impact some of these things are having on families and their classmates. If there’s good news, I will say that we have never had a situation where a high school reporter has ever ended up in jail as a result of refusing to turn over information. Many years ago we did have a situation where a high school journalist out in Washington state was threatened with jail and luckily, once the local community got wind of it, the police pretty quickly backed down. It’s not a good look, I think, for a judge to be throwing a high school reporter in jail for refusing to out a classmate. I think, practically, the risks are probably fairly minimal, but these are weird times, and I don’t think that we could dismiss the risks simply because we’re talking about high school student journalists.

“We need student journalists to be courageous at this time. They have a unique perspective that nobody else has when it comes to the impact some of these things are having on families and their classmates.”

DD: I think that’s part of what is going on, right? There’s some discussion that some of the tactics and all the executive orders are fear mongering, and of course it’s working, right? Everybody’s very afraid. I have had conversations with my students, wondering whether we want to be at the bleeding edge of these particular topics. We can also do explainers and find other ways to report these materials until things settle a little bit.

Are the resources of the parents and the willingness of the parents to defend their child should their child get into trouble another consideration in all of this? Is that something that as advisers we should be thinking about? Involving parents with the reporters, in the interest of protecting these kids? I hate the thought that we’re just letting them hang out there with no resources should they get into trouble. 

MH: I think that’s a good point. I think that alerting parents or asking students to alert their parents about what’s going on just so they are not caught unaware, I think that’s probably a wise move.