‘Never to take the first no for an answer’

As expected, President Trump has made immigration central to his efforts to consolidate executive power, following an inaugural pledge to deport “millions and millions of criminal aliens” with a barrage of executive orders, detentions and deportations that have put millions of Americans on edge.

Following the sheer volume of executive actions has been challenging enough; but the administration’s increased attacks on press freedom have made newsgathering particularly difficult for news organizations serving immigrant communities. 

“We have never seen the level of outright hostility against the media as we see with Trump,” Victoria said.

How can publishers effectively report on this issue while also protecting sources and their own journalists? Victoria, who has extensive experience advising media clients and litigating First Amendment issues, offered several recommendations for publishers aiming to bolster their newsgathering efforts in the Trump era. 

‘Never to take the first no for an answer’ 

Victoria encouraged publishers to utilize the Freedom of Information Act (FOIA) to pursue records on detainees and enforcement actions from Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection and the Executive Office for Immigration Review. 

But the vast majority of people detained by ICE end up in for-profit detention facilities that are not subject to FOIA. When reporting on private detention centers, Victoria suggested seeking records from the DHS Office of Inspector General, which inspects these facilities. 

And while FOIA can be a powerful tool for holding the government accountable, Victoria said journalists should be prepared to push back when their requests are denied. 

“Never take the first no for an answer,” she said. “Think about ways to fight back, potentially consult with legal counsel because a lot of times in my experience…sometimes all it takes is a strongly worded letter.”

Journalists can also gain insight into immigration enforcement by requesting records (such as financial records, internal policies, detention data and federal contracts) from state and local agencies cooperating with ICE. 

Finally, immigration hearings are another avenue generally open to journalists, though judges have discretion to close proceedings. Victoria advised journalists to consult DOJ guidelines to confirm access ahead of court hearings.  

Resources

• Detainee access: ICE media guidelines and visiting hour lookup

• Court access: DOJ’s Immigration Court Practice Manual

• Immigration & deportation records tipsheet (Reporters Committee for Freedom of the Press); In Spanish

• Using your state’s open records laws for immigration (Immigrant Legal Resource Center)

Protecting vulnerable sources

Source confidentiality is a top concern for journalists reporting on undocumented immigrants, and Victoria emphasized the importance of knowing how shield laws apply to newsgathering. 

While there is no federal shield law, most states (besides Wyoming) have laws establishing “reporter’s privilege,” affording journalists the right to resist the forced disclosure of confidential sources or materials. 

Shield laws establish what information is privileged but also who is considered a journalist. For instance, some states extend protections only to reporters affiliated with traditional print or broadcast outlets. 

“The laws vary pretty widely from state to state,” Victoria said. “You need to know as a journalist that you can protect these sources and offer them a certain degree of protection.” 

In addition to understanding state-specific protections (outlined here by the Reporters Committee for Freedom of the Press), Victoria offered a few suggestions for reporting and record keeping, including: 

• Using separate devices and encrypted apps to communicate with vulnerable sources

• Limiting written communications with confidential sources

• Anonymizing identifying details in photos and videos, including faces, tattoos, and other potential identifiers

Mitigating legal risks

Victoria emphasized the heightened legal risks for media organizations in the current political climate. “Things are different right now,” Victoria cautioned.  “We have never seen just the level of outright hostility against the media, specifically our mainstream legacy media, as we see with Trump.”

The key to mitigating against defamation claims or other enforcement actions, Victoria said, is establishing editorial frameworks, legal resources and liability insurance before a legal challenge is mounted. Newsrooms should make plans for:

• Conducting thorough fact-checking and pre-publication review

• Obtaining robust libel and slander insurance coverage

• Being familiar with anti-SLAPP laws by state

While there are no federal protections against “strategic lawsuits against public participation” — or SLAPP lawsuits — 35 states offer some level of protection against frivolous lawsuits aimed at chilling free speech. Those include: Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, Virginia, and Washington. 

On insurance, Victoria noted how coverage of private detention facilities could draw increased legal exposure than coverage of government facilities. “The individuals that run that detention facility are more likely to be private individuals than public figures,” she said, making it easier for them to pursue a defamation lawsuit. 

On pre-publication review, Victoria recommended publishers take advantage of pro bono support to “identify and mitigate potential legal issues before they become problems.” But she also urged newsrooms to budget for legal support, if possible. 

“In terms of being prepped and ready for potential litigation or enforcement action, you're less likely to be able to find pro bono support for that,” she said. 

Resources:

• Guide to state anti-SLAPP laws (RCFP)

• Pro bono legal counsel for pre-publication review (ProJourn)

• Why media liability insurance is key to sustainability (INN)

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