I. Introduction
Some of the most difficult legal and constitutional questions regarding press freedom in the United States center around reporting based on material or information acquired by a third party illegally. And, while the high-level legal framework governing the publication of material illegally obtained by another person is clear, the details of individual cases matter a great deal.
Subject to the uncertainties discussed here, the U.S. Supreme Court’s 2001 decision in Bartnicki v. Vopper likely protects journalists who receive and publish such material, including, in most cases, where the journalist knows the illegal provenance of the material but did not participate in the illegal acquisition. 532 U.S. 514 (2001).
As such, a reporter’s legal risk will likely turn on how active a role they played in the illegal acquisition. As discussed in more detail below, journalists should (1) exercise caution when seeking information from sources, (2) confirm that mere possession of the material itself is not a crime, and (3) ensure that the information is of public concern.
The following guide provides a detailed overview of the caselaw governing this issue.
- Part II surveys the holding and facts of the Bartnicki case.
- Part III provides a deep dive into the various factors relevant to the Bartnicki analysis, including a reporter’s knowledge of the identity of the source of the material (III.A), a reporter’s participation in the illegal acquisition and issues around solicitation of the material or information (III.B), the public versus private concern analysis (III.C), and the need for particular caution when mere possession of the material is a crime (III.D).
Note that cases implicating this question, including Bartnicki, often involve illegally intercepted recordings; the discussion in Part II focuses on that context. The basic principles discussed below, however, would also likely apply to, for instance, the publication of material that is hacked or physically stolen. See, e.g., Democratic Nat’l Comm. v. Russian Fed’n, 392 F. Supp. 3d 410 (S.D.N.Y. 2019).
Reporters with questions in this area should contact the Reporters Committee’s free Legal Hotline at hotline@rcfp.org or other media law counsel.
II. Publishing material illegally obtained by another person — the basics
Some state and federal laws, on their face, may prohibit individuals who come into possession of information that was illegally obtained by a third-party from publishing that information. For instance, federal law not only makes it illegal to “intercept” (i.e., record or eavesdrop on) any wire, oral, or electronic communication without at least one party’s consent, but also to “use” or “disclose” such communications. 18 U.S.C. § 2511. Thirty-eight states also prohibit the publication of an illegal recording.[1] Eleven do not.[2]
If a journalist receives such an “intercepted” or unlawful recording from a source, whether federal or state law prohibits publishing or broadcasting the recording may first turn on whether the journalist knows the recording was made in violation of the law. Federal law and most states only prohibit disclosure if the person disclosing the recording knew or should have known[3] it was recorded illegally.[4]
But the Constitution provides journalists with some protection from being prosecuted under these laws. Even when a journalist knows the recording was made unlawfully by another person, the U.S. Supreme Court has held that the First Amendment protects the disclosure of that recording to the extent it contains truthful information of public concern and so long as the journalist played no part in the illegal interception.
In Bartnicki, the Supreme Court held that several news media defendants whose journalists broadcast a phone call they knew was illegally recorded, but did not participate in the illegality, could not be held liable under the federal or Pennsylvania wiretap laws. 532 U.S. 514, 530–35 (2001).
The Bartnicki case arose from a cellphone conversation in Pennsylvania about contract negotiations for local schoolteachers. Id. at 518–19. On the call, the president of the local teachers’ union told a union negotiator that if teachers’ demands were not met, “we’re gonna have to go to their, their homes … to blow off their front porches, we’ll have to do some work on some of those guys.” Id.
An unknown person illegally intercepted the call and left a tape recording of it in the mailbox of a local leader who “opposed the union’s demands throughout the negotiations.” Id. at 519. That leader gave a copy of the tape to two radio talk show hosts who broadcast it as part of a news show. Id. The union officials whose conversation was recorded sued the stations and newspapers who published the tape. Id. The Supreme Court held that the First Amendment interest in publishing matters of public importance trumped the privacy concerns of the union leaders. Id. at 535. The Court stressed that the news media had clean hands — they did not engage in or encourage the illegal recording and had acquired it lawfully — and the recorded conversation was of significant public concern. Id. at 533–34.
III. Sources of legal risk when publishing records illegally obtained by a source
In the years since Bartnicki, courts have sometimes disagreed in their interpretations of its scope. See generally Erik Ugland & Christina Mazzeo, Hacks, Leaks, and Data Dumps: The Right to Publish Illegal Information Twenty Years After Bartnicki v. Vopper, 96 Wash. L. Rev. 1 (2021). Factors courts consider in determining whether the First Amendment provides any protection for the publication of material acquired illegally by a source include, for instance, the significance of the publisher’s knowledge about the underlying illegal conduct as well as who engaged in it; the extent of the reporter’s involvement with the person who broke the law in obtaining the material; and the competing interests in publishing matters of public concern versus protecting other legitimate government interests, including third-party privacy interests.
Each of these factors is discussed below, along with the special considerations surrounding national defense information (which can generally be thought of as classified information) and where the mere possession of the information is itself a crime.
A. Knowledge that information was obtained illegally and knowledge of the acquirer’s identity typically has not prevented First Amendment protection
Since Bartnicki, courts have generally recognized that the First Amendment protects publication of illegally obtained recordings or documents even if the publisher knew the material was acquired illegally. See Jean v. Massachusetts State Police, 492 F.3d 24, 32 (1st Cir. 2007); see also Yurish v. Sinclair Broad. Grp., Inc., 246 W. Va. 91, 102 (2021) (holding that a West Virginia law prohibiting disclosure of illegally intercepted information when there is knowledge of the illegality was unconstitutional as applied to media defendant who published a third-party’s video they knew was illegally recorded).
The Supreme Court stressed in Bartnicki that even though the media defendants had not participated in the illegal interception, “they did know — or at least had reason to know — that the interception was unlawful.” 532 U.S. at 517–18, 525. The Court supported this holding with the previously decided Pentagon Papers case, in which none of the justices “placed any weight” on the fact that the newspaper intended to publish information obtained from documents stolen by a third party. Id. at 528 (citing N.Y. Times v. United States, 403 U.S. 713, 714 (1971)).
Fewer courts have had occasion to address whether the publisher’s knowledge of the identity of the source who acted illegally affects whether publication is protected. Bartnicki did not resolve this question since the media defendants in that case had “never learned the identity of the person or persons who made the interception.” Id. at 525. But the prevailing approach post-Bartnicki has been that mere knowledge of the source’s identity alone does not preclude First Amendment protection.
In Jean v. Massachusetts State Police, for example, the U.S. Court of Appeals for the First Circuit found that the First Amendment protected online publication of a “nanny-cam” recording showing an arrest and warrantless search of a private residence, even though the publisher knew the recording had been made illegally as well as the identity of the person who made it. 492 F.3d at 32. The First Circuit rejected the plaintiff’s argument that this knowledge rendered the publisher’s receipt of the recording unlawful and thus outside Bartnicki’s protection. Instead, the court concluded that where “the identity of the interceptor is known, there is even less justification for punishing a subsequent publisher than there was in Bartnicki.” Id. at 30.
Nevertheless, at least two courts have suggested that a publisher’s knowledge of the underlying illegal conduct as well as the identity of the person who made the illegal recording could have some relevance to the First Amendment analysis. But in both cases, the court ultimately concluded that Bartnicki did not apply for other reasons.
In Quigley v. Rosenthal, the U.S. Court of Appeals for the Tenth Circuit concluded that knowledge of the recorders’ identities and their illegal recordings weighed against First Amendment protection. 327 F.3d 1044, 1067 (10th Cir. 2003). But the court also stressed that Bartnicki did not apply because the case involved recordings about a private dispute among neighbors, and the publisher knew the couple making the recordings were continuing to do so illegally. Id.
Similarly, in a case concerning the hack of Democratic National Committee emails, a federal court in Virginia considered a claim that the defendant, President Donald Trump’s 2016 campaign, had “conspired with the Kremlin and WikiLeaks” to publish information to embarrass the DNC. While the Trump campaign’s knowledge that the information was illegally obtained was relevant to the court’s analysis, the court ultimately concluded that Bartnicki protections did not apply because the plaintiff plausibly alleged the defendant conspired in the illegality. Cockrum v. Donald J. Trump for President, Inc., 365 F. Supp. 3d 652, 657 (E.D. Va. 2019).
The West Virginia Supreme Court, on the other hand, relied on Bartnicki when it held that media organizations and social media users could not be held liable for publishing a surreptitious recording obtained by a parent documenting child abuse inside a public school that was likely obtained illegally. In that case, Yurish v. Sinclair Broad. Grp., Inc., 246 W. Va. 91, 101 (2021), the court determined that, even if the recordings were obtained illegally, their publication by news organizations and social media users was protected by the First Amendment. Id. at 166.
Preexisting confidentiality obligations may make the publication of illegally obtained information riskier, particularly where the speaker knows that the information was illegally obtained. See Boehner v. McDermott (Boehner II), 484 F.3d 573, 576 (D.C. Cir. 2007). Boehner II concerned a 1996 incident where Rep. James McDermott (D-Wash.) released to the media a recording of a phone call between Rep. John Boehner (R-Ohio) and other House Republicans about an ethics investigation into then-House Speaker Newt Gingrich (R-Ga.). Id. at 576. A Florida couple had illegally taped the conversation and gave it to McDermott, who knew it was illegally obtained. Id. Boehner sued McDermott, alleging the release violated the federal wiretap law because McDermott disclosed the information knowing it was illegally obtained. Id. at 577.
After the Supreme Court vacated an initial decision of the D.C. Circuit in the case in the wake of Bartnicki, McDermott v. Boehner, 532 U.S. 1050 (2001) (vacating Boehner v. McDermott (Boehner I), 191 F.3d 463 (D.C. Cir. 1999)), the D.C. Circuit sitting en banc concluded that Bartnicki did not apply because McDermott had a duty of confidentiality as a member of the Ethics Committee and therefore did not have a First Amendment right to disclose the tape to the media. Boehner II, 441 F.3d at 581.
The Boehner II opinion highlighted the limitations of the Supreme Court’s decision in Bartnicki, explaining that Bartnicki “does not stand for the proposition that anyone who has lawfully obtained truthful information of public importance has a First Amendment right to disclose that information.” Id. at 577. Boehner II noted statutes that restrict the disclosure even of lawfully obtained information, including information that would undermine grand jury secrecy, personal information like social security numbers, and national defense information. Id. at 578. The en banc decision suggested that government officials like McDermott who are granted access to sensitive information may have particular duties against disclosing that information to the media, since those officials have “accept[ed] positions of trust involving a duty not to disclose information they lawfully acquire while performing their responsibilities.” Id. at 579.
B. Participating in or encouraging the illegal acquisition carries legal risk and journalists should exercise caution when soliciting illegally acquired material or information
Courts are less likely to recognize a First Amendment defense for publication where the media defendant participated in the underlying illegal conduct, even indirectly.
In Bartnicki, the Supreme Court stressed that its holding “does not apply to punishing parties for obtaining the relevant information unlawfully.” 532 U.S. at 514 n.19. In doing so, the Court explained that the First Amendment does not confer “a license on either the reporter or his news sources to violate valid criminal laws.” Id. Justice Stephen Breyer further stressed in his concurrence that the media defendants had “neither encouraged nor participated directly or indirectly in the interception” because they did not order, counsel, encourage, or otherwise aid and abet the interception or delivery of the recording. 532 U.S. at 538 (Breyer, J., concurring).
In the case law since Bartnicki, the most important distinction courts tend to draw is whether journalists’ role in the acquisition of the information came before or after the source had already broken the law — distinguishing, in other words, between “a solicitation to steal documents” and “a request for material that had been stolen.” Democratic Nat’l Comm. v. Russian Fed’n, 392 F. Supp. 3d 410, 438 (S.D.N.Y. 2019).
For instance, one federal circuit court has held that providing advice to a source prior to the illegal acquisition can constitute participation. In Peavy v. WFAA-TV, Inc., decided a year before Bartnicki, the U.S. Court of Appeals for the Fifth Circuit held that a TV station and reporter could be held civilly liable under federal and state wiretap laws because the reporter had participated in illegal recordings by providing advice on how to make such recordings. 221 F.3d 158, 194 (5th Cir. 2000). This included advising not to edit the tapes to prevent authenticity challenges, as well as soliciting additional recordings. Id. at 164–65.
By comparison, several other courts have held that merely soliciting material from a source — without aiding or abetting the underlying illegal conduct — is protected. For example, in 2019, a federal court in New York held that the First Amendment protected WikiLeaks’s publication of stolen emails, since the site had not played any role in the actual theft of the emails. Democratic Nat’l Comm. v. Russian Fed’n, 392 F. Supp. 3d 410, 438 (S.D.N.Y. 2019). Although WikiLeaks had allegedly solicited and coordinated with the Kremlin to publish the emails, the court determined there was no evidence that WikiLeaks “had any role in hacking the DNC’s computers or stealing its information,” so it determined that “the First Amendment protect[ed] the publication of those stolen documents.” Id. In doing so, the court emphasized that “[j]ournalists are allowed to request documents that have been stolen,” drawing a distinction between “a solicitation to steal documents” — i.e., telling a source “please go steal documents for me,” a scenario the court did not address — and “a request for material that had been stolen” already, which the court found was protected conduct under Bartnicki.
In a 2021 case, the U.S. Court of Appeals for the Fourth Circuit similarly held that the Southern Poverty Law Center’s alleged contact with a source and $5,000 payment for documents three days after they had been illegally obtained did not remove the subsequent publication of those documents from protection under Bartnicki. See Allen v. Beirich, No. 19-2419, 2021 WL 2911736, at *5 n.4 (4th Cir. July 12, 2021). The court emphasized that the case “lack[ed] any factual allegation that the SPLC was even in contact with [the source] before the theft, much less that the SPLC was aware of [his] plans in advance or in any way participated in [his] unlawful conduct.” Id. at *5. As a result, SPLC could not be punished for the publication.
Likewise, in a case involving a police report leaked to a tabloid, a federal court in Arkansas cited Bartnicki in concluding that reporters who merely asked police for information, without participating in the unlawful disclosure of that information, were protected by the First Amendment. See Dillard v. City of Springdale, No 5:17-cv-5089, 2020 WL 11148501, at *5 (W.D. Ark. Sept. 9, 2020) (unpublished).
In the same vein, some courts have held that a publisher may communicate or coordinate with the person who made an illegal recording after the recording is made without forfeiting the protections of the First Amendment. In Jean, the First Circuit held that even though the woman who posted the unlawful recording had arguably participated in a “conspiracy” to disclose the video after it was made by “actively” collaborating in its dissemination, Bartnicki controlled and protected the publisher from liability. 492 F.3d at 31–33. The court stressed that in both cases the publisher knew the recording was illegally intercepted when proceeding with the disclosure. Id.
That being said, some trial courts have held that the First Amendment does not protect subsequent publication by non-news media defendants who allegedly “conspired” to distribute knowingly hacked emails after their unlawful acquisition — that is, that their role in the illegal acts went deeper than passively receiving the information after the crime was already complete.
As noted above, in 2019, a federal district court in Virginia held that the Trump campaign’s alleged conversations, meetings, and coordination with WikiLeaks and Russian hackers prior to publishing hacked DNC emails, but after the hack itself, was not entitled to First Amendment protection. Cockrum, 365 F. Supp. 3d at 659. But the court stressed that the case involved an alleged “conspiracy to publish private information to dissuade political participation.” Id. at n.7.
Similarly, a federal court in the District of Columbia, citing the Virginia case, held in an unpublished opinion that a “media placement expert” who worked as a foreign agent of Qatar was not protected from liability under Bartnicki because he had allegedly “conspired” with hackers in a scheme to distribute knowingly hacked emails to the media. Broidy Capital Mngmt. LLC v. Muzin, No. 19-cv-0150, 2020 WL 1536350, at *21 (D.D.C. March 31, 2020).
In sum, courts have generally recognized that the First Amendment protects routine newsgathering techniques — such as soliciting information from a source — in order to obtain and publish information of public concern so long as the journalists themselves do not commit any illegal acts. See also Seminole Tribe of Fla. v. Times Pub. Co., 780 So. 2d 310, 318 (Fla. Dist. Ct. App. 2001) (the First Amendment protects a reporter soliciting confidential and proprietary documents from a source); Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979) (asking crime witnesses, the police, and prosecutors for an offender’s name is a routine reporting technique protected by the First Amendment); Nicholson v. McClatchy Newspapers, 177 Cal. App. 3d 509, 513 (Ct. App. 1986) (requesting and persuading sources to share confidential information are routine newsgathering activities protected by the First Amendment).
But, again, the greater a journalist’s involvement in a source’s illegal conduct before or while it is occurring, the greater the legal risk.
C. Courts have applied Bartnicki’s protections to matters of public — but not private — concern
In Bartnicki, the Supreme Court stressed that the disclosures involved “a matter of public concern,” noting that if made in a public arena, they “would have been newsworthy.” 532 U.S. at 534. In his concurrence, Justice Breyer stated that he agreed with the “narrow holding” of the case given that “the information publicized involved a matter of unusual public concern, namely, a threat of potential physical harm to others.” Id. at 535–36 (Breyer, J., concurring). But the Court declined to decide whether the First Amendment would protect “disclosures of trade secrets or domestic gossip or other information of purely private concern.” Id. at 533. Since then, at least one court has found that Bartnicki does not protect the disclosure of trade secrets that are not a matter of public concern. See DVD Copy Control Assn., Inc. v. Bunner, 31 Cal. 4th 864, 883-85 (2003).
A decade later, in Snyder v. Phelps, the U.S. Supreme Court clarified the meaning of a “matter of public concern” for purposes of heightened protection under the First Amendment. 562 U.S. 443, 452–54 (2011). There, the Court held that the First Amendment shielded church members from tort liability for picketing near the funeral of a military service member because their speech related to public rather than purely private matters. Id. at 454. Their placards highlighted issues of “public import” such as the political and moral conduct of the U.S. and its citizens, the fate of the nation, homosexuality in the military, and the sex abuse scandal in the Catholic Church. Id. The Court explained that speech is “of public concern” when it relates to “any matter of political, social, or other concern to the community,” or when it is “a subject of general interest and of value and concern to the public.” Id. at 453; see also Palm Beach Newspapers, LLC v. State, 183 So. 3d 480, 483 (Fla. Dist. Ct. App. 2016) (holding that an inmate’s role as a “jailhouse snitch” in a murder case is a matter of public concern, warranting protection under Bartnicki, because it is the kind of evidence used in a murder prosecution).
In a recent case involving media defendants, Yurish v. Sinclair Broadcasting Group, Inc., the Supreme Court of West Virginia determined that a classroom recording obtained by a hidden camera attached to a student’s hair by a parent was sufficiently related to matters of public concern to implicate Bartnicki. 866 S.E.2d 156, 163 (W. Va. Nov. 19, 2021). The court analyzed the content, context, and form of the published footage to make that determination. Id. The footage revealed alleged child abuse in a public school, and the court held the publication of that footage on television and the internet “reflects that it was ‘a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’” Id. (quoting Snyder, 866 S.E.2d at 163).
The determination of whether information relates to a matter of public concern is crucial, and, unfortunately, courts do not always agree on what qualifies. In fact, two federal judges took different approaches in evaluating whether the hacked DNC emails satisfied this threshold. A Virginia court deferred resolving the issue based on a “scant record,” but recognized a “volume of private and arguably embarrassing personal information.” Cockrum, 365 F. Supp. 3d at 659. But a federal court in New York determined the emails involved a matter of public concern, as their publication allowed “the American electorate to look behind the curtain on one of the two major political parties in the United States during a presidential election.” Democratic Nat’l Comm., 392 F. Supp. 3d at 437.
While publication of matters that are of public concern is protected, publication of matters of purely private concern are not. Examples of topics that courts have identified as matters of private concern include a private dispute among neighbors, text messages of a private person involved in a divorce proceeding, nonconsensual pornography, names and financial circumstances of private individuals in a corporation’s target marketing lists, and conversations between a child and parent. These areas, and other similar topics, fall outside Bartnicki’s ambit. See Quigley v. Rosenthal, 327 F.3d 1044, 1067 (10th Cir. 2003) (private phone calls); In re Marriage of Evilsizor & Sweeney, 237 Cal. App. 4th 1416, 1428 (2015) (private texts); State v. VanBuren, 210 Vt. 293, 312-13, 323, 327 (2019) (nonconsensual pornography); People v. Austin, 155 N.E.3d 439, 461, 471-72 (Ill. 2019) (nonconsensual pornography); Trans Union Corp. v. F.T.C., 267 F.3d 1138, 1141 (D.C. Cir. 2001) (private individuals in a corporation’s target marketing list); Pyankovska v. Abid, 65 F.4th 1067, 1076 (9th Cir. 2023) (intimate conversations between a child and parent).
In light of those considerations, journalists should endeavor to determine whether information illegally obtained by a source relates to matters of public or private concern; that determination will affect the associated First Amendment protections that are available.
D. Journalists should be particularly careful when possession of the material is itself a crime
Journalists should be particularly careful when reporting in contexts where the mere possession of particular files or information is prohibited by law. See, e.g., United States v. Matthews, 209 F.3d 338, 342 (4th Cir. 2000) (no First Amendment defense available where reporter claimed journalistic purpose for receiving illegal child sexual abuse material).
For example, the U.S. Court of Appeals for the Seventh Circuit found that a newspaper could be held civilly liable under the Drivers Privacy Protection Act, 18 U.S.C. § 2722, for obtaining certain motor vehicle records from the Illinois Secretary of State’s office — about Chicago police officers who had participated in a lineup — and then publishing that information. Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937, 954 (7th Cir. 2015). In Dahlstrom, the Seventh Circuit affirmed the district court’s denial of the newspaper’s motion to dismiss on interlocutory appeal, finding that the newspaper had no constitutional right to obtain the information in violation of the DPPA nor to publish it. Id. at 940. The newspaper did argue on appeal that one of the DPPA’s exceptions applied to the acquisition of the records, but the Seventh Circuit declined to consider that argument, given the interlocutory posture, and proceeded under the assumption that the DPPA had been violated. Id. at 941, n.3.
The Seventh Circuit distinguished this case from Bartnicki in its finding that the DPPA did not trigger heightened scrutiny under the First Amendment and survived rational basis review, that the records obtained by the newspaper were “personal records” within the meaning of the law, that the DPPA prohibits individuals from “knowingly obtaining” this information, and that the newspaper had therefore not “obtained [the records] lawfully” for purposes of Bartnicki. Id. at 951 (quoting Bartnicki, 532 U.S. at 517). In other words, the Dahlstrom case could be read for the proposition that if a news organization itself violates a law of general applicability that survives constitutional scrutiny, the fact the violation occurs during newsgathering is not enough to trigger Bartnicki protections. But see Ugland & Mazzeo, Hacks, supra, at 175 (“The Dahlstrom decision was mystifying, in part because the facts largely paralleled those of the Supreme Court’s decision in Florida Star [v. B.J.F., 491 U.S. 524, 527 (1989)], which the Seventh Circuit blithely tried to distinguish.”).
Some states similarly make it a crime to possess — not just publish or disclose — intercepted communications. See Ark. Code Ann. § 5-60-120 (2003). Bartnicki may still limit liability in these cases if a journalist is charged for possession, but such laws may increase legal risk.
Similarly, there are also generic state or federal laws that prohibit the knowing receipt of any sort of stolen property, and it is unclear whether they would create legal risks for journalists who receive information illegally obtained by a source. See In re Search Warrant Dated Nov. 3, 2021, No. 24-192, 2024 WL 3507596, at *4 (2d Cir. July 23, 2024) (finding that Bartnicki did not shield Project Veritas from search warrants related to investigation for conspiracy to possess stolen goods); Michael S. Schmidt and Adam Goldman, Justice Dept. Says It Will Not Bring Charges in Investigation of Project Veritas, The New York Times (Feb. 5, 2025). Still, as discussed above, several courts have concluded that “[j]ournalists are allowed to request documents that have been stolen.” Democratic Nat’l Comm., 392 F. Supp. at 436.
Accordingly, journalists and the news media must be cognizant of the type of illegally obtained information that sources send, because there is a possibility that state or federal law may criminalize the mere possession of that information in a narrow set of situations.
Given the uncertainty in this area of law, journalists with questions should contact the Reporters Committee’s free Legal Hotline at hotline@rcfp.org or seek legal counsel with experience in the area.
Endnotes
- States that do prohibit the publication of an illegal recording are: Alaska, California, Colorado, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming. Alaska, Alaska Stat. § 42.20.300 (1996); California, Cal. Penal Code § 631 (2023); Colorado, Colo. Rev. Stat. § 18-9-303 (2023); Delaware, Del. Code Tit. 11, § 2402 (2014); District of Columbia, D.C. Code § 23-542 (2013); Florida, Fla. Stat. § 934.03 (2024); Hawaii, Haw. Rev. Stat. § 803-42 (2014); Idaho, Idaho Code § 18-6702 (2004); Illinois, 720 Ill. Comp. Stat. 5/14-2 (2016); Indiana, Ind. Code § 35-33.5-5-4 (2010); Iowa, Iowa Code § 808B.2 (2018); Kansas, Kan. Stat. § 21-6101 (2024); Kentucky, Ky. Rev. Stat. § 526.060 (2024); Louisiana, La. Stat. § 15:1303 (2012); Maine, Me. Rev. Stat. tit. 15, § 710 (2013); Maryland, Md. Code, Cts. & Jud. Proc. § 10-402 (2019); Massachusetts, Mass. Gen. Laws Ch. 272, § 99 (2024); Michigan, Mich. Comp. Laws § 750.539e (2024); Minnesota, Minn. Stat. § 626A.02 (2023); Mississippi, Miss. Code § 41-29-529 (2024); Missouri, Mo. Stat. § 542.402 (2017); Nebraska, Neb. Rev. Stat. § 86-290 (2024); Nevada, Nev. Rev. Stat. §§ 200.630, 200.650 (West); New Hampshire, N.H. Rev. Stat. § 570-A:2 (2017); New Jersey, N.J. Stat. § 2A:156A-3 (2023); New Mexico, N.M. Stat. § 30-12-11 (2024); North Carolina, N.C. Gen. Stat. § 15A-287 (2023); North Dakota, N.D. Cent. Code § 12.1-15-02 (2023); Ohio, Ohio Rev. Code § 2933.52 (2024); Oklahoma, Okla. Stat. tit. 13, § 176.3 (2024); Pennsylvania, 18 Pa. Stat. and Cons. Stat. § 5703 (2024); Rhode Island, 11 R.I. Gen. Laws § 11-35-21 (2024); South Carolina, S.C. Code § 17-30-20 (2010); Tennessee, Tenn. Code § 39-13-601 (2011); Texas, Tex. Penal Code § 16.02 (2019); Utah, Utah Code § 77-23a-4 (2024); Virginia, Va. Code § 19.2-62 (2024); West Virginia, W. Va. Code § 62-1D-3 (2007); Wisconsin, Wis. Stat. § 968.31 (2023); Wyoming, Wyo. Stat. § 7-3-702 (2024).
- The eleven states that do not prohibit the publication of an illegal recording are as follows: Arizona, Arkansas, Alabama, Connecticut, Georgia, Montana, New York, Oregon, South Dakota, Vermont, and Washington. But, in Oregon, the publisher of illegally obtained information is not liable only if they did not participate in the illegality and if the information is a matter of public concern. Oregon, Or. Rev. Stat. § 165.540(8) (2024). On the other hand, while Indiana outlaws the disclosure of intercepted communications, journalists in the state could assert an affirmative defense if they were both uninvolved in and unaware of the illegality. Ind. Code Ann. § 35-33.5-5-4(c) (2010). The other states mentioned are silent on the issue of disclosure.
- The federal law is 18 U.S.C. § 2511. The full list of states that condition liability for disclosure on knowledge of the illegal recording are: Alaska, Colorado, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming. Alaska, Alaska Stat. § 42.20.300 (1996); Colorado, Colo. Rev. Stat. § 18-9-303 (2023); Delaware, Del. Code tit. 11, § 2402 (2014); District of Columbia, D.C. Code § 23-542 (2013); Florida, Fla. Stat. § 934.03 (2024); Hawaii, Haw. Rev. Stat. § 803-42 (2014); Idaho, Idaho Code § 18-6702 (2004); Illinois, 720 Ill. Comp. Stat. 5/14-2 (2016); Indiana, Ind. Code § 35-33.5-5-4 (2010); Iowa, Iowa Code Ann. § 808B.2 (2018); Kansas, Kan. Stat. § 21-6101 (2024); Louisiana, La. Stat. § 15:1303 (2012); Maine, Me. Rev. Stat. tit. 15, § 710 (2013); Maryland, Md. Code, Cts. & Jud. Proc. § 10-402 (2019); Michigan, Mich. Comp. Laws § 750.539e (2024); Minnesota, Minn. Stat. § 626A.02 (2023); Missouri, Mo. Stat. § 542.402 (2017); Nebraska, Neb. Rev. Stat. § 86-290 (2024); New Hampshire, N.H. Rev. Stat. § 570-A:2 (2017); New Jersey, N.J. Stat. § 2A:156A-3 (2023); North Carolina, N.C. Gen. Stat. § 15A-287 (2023); North Dakota, N.D. Cent. Code § 12.1-15-02 (2023); Ohio, Ohio Rev. Code § 2933.52 (2024); Oklahoma, Okla. Stat. tit. 13, § 176.3 (2024); Pennsylvania, 18 Pa. Stat. and Cons. Stat. § 5703 (2024); Rhode Island, 11 R.I. Gen. Laws § 11-35-21 (2024); South Carolina, S.C. Code § 17-30-20 (2010); Tennessee, Tenn. Code § 39-13-601 (2011); Texas, Tex. Penal Code § 16.02 (2019); Utah, Utah Code § 77-23a-4 (2024); Virginia, Va. Code § 19.2-62 (2024); West Virginia, W. Va. Code § 62-1D-3 (2007); Wisconsin, Wis. Stat. § 968.31 (2023); Wyoming, Wyo. Stat. § 7-3-702 (2024).
- California, Kentucky, Nevada, and New Mexico are the only states that find liability for disclosure regardless of knowledge of the underlying illegality. California, Cal. Penal Code § 631 (2023); Kentucky, Ky. Rev. Stat. § 526.060 (2024); Nevada, Nev. Rev. Stat. §§ 200.630, 200.650 (2023); New Mexico, N.M. Stat. § 30-12-11 (2024).
